Sheppard v. Warden Chillicothe Correctional Institution

Filing 29

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON REMAND QUESTION - For the reasons set forth in the Report and Recommendations on the Warden's Motion to Dismiss (Doc. No. 28), the Court should find that Sheppard's claims made in the Petition here arose after judgment was final in the prior case and therefore this is not a second or successive petition. Objections to R&R due by 9/14/2012. Signed by Magistrate Judge Michael R Merz on 8/28/2012. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BOBBY T. SHEPPARD,
:
Petitioner,

Case No. 1:12-cv-198
:

District Judge Gregory L. Frost
Magistrate Judge Michael R. Merz

-vsNORMAN ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON
REMANDED QUESTION
This capital habeas corpus case is before the Court on remand from the Sixth Circuit for
this Court to determine in the first instance whether the Petition herein is a second or successive
petition such that Sheppard needs permission from the Sixth Circuit to proceed. In a Report and
Recommendations filed July 3, 2012, I recommended the Court conclude the Petition was not a
second or successive petition and this Court therefore had jurisdiction to proceed without prior
permission of the Circuit Court (Doc. No. 19). The Warden has filed Objections (Doc. No. 21),
Petitioner has responded (Doc. No. 26), and Judge Frost has recommitted the remanded question
for additional analysis after consideration of the Objections (Doc. No. 25).
Upon reconsideration, I am not persuaded that the original Report is in error.
First, the Warden argues that because this Petition challenges the same judgment as
Sheppard’s prior Petition in 1:00-cv-493, it must be a second or successive petition because of the
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Supreme Court’s decision in Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788, 177 L. Ed. 2d
592 (2010).

What Magwood held was that a second-in-time petition attacking the same

conviction as a prior petition was not second or successive because it attacked a new judgment in
the case. That does not logically imply that a second-in-time petition which attacks the same
judgment is a second or successive petition. The Supreme Court explicitly said it was not
deciding that question, as the Warden admits. (Objections, Doc. No. 21, at PageID 246, citing
Magwood, 130 S. Ct. 2799, and noting the Supreme Court’s citation at that point of Slack v.
McDaniel, 529 U.S. 473, 487 (2000); Stewart v. Martinez-Villareal, 523 U.S. 637, 643 (1998); and
Panetti v. Quarterman, 551 U.S. 930, 945 (2007)). While the Supreme Court may eventually decide
that question in the way the Warden suggests, it has not done so as yet.
Secondly, the Warden objects to the Magistrate Judge’s acceptance of Sheppard’s ripeness
argument, to wit, that the claims made in the Petition could not have been presented prior to adoption
by the State of Ohio of its current lethal injection protocol on September 18, 2011. For the reasons set
forth in the Report and Recommendations on the Warden’s Motion to Dismiss (Doc. No. 28), the Court
should find that Sheppard’s claims made in the Petition here arose after judgment was final in the prior
case and therefore this is not a second or successive petition.
August 28, 2012.

s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections to
the proposed findings and recommendations within fourteen days after being served with this
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Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See, United States v. Walters, 638
F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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