Sheppard v. Warden Chillicothe Correctional Institution

Filing 80

ORDER staying briefing on Petitioner's objection until issuance of the Adams v. Bradshaw mandate. Signed by Judge Gregory L. Frost on 3/22/16. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

BOBBY T. SHEPPARD,
Petitioner,
v.
NORMAN ROBINSON, Warden,

Case No. 1:12-cv-198
JUDGE GREGORY L. FROST
Magistrate Judge Michael R. Merz

Respondent.

ORDER
On March 16, 2016, Petitioner filed objections (ECF No. 79) to the Magistrate’s Judge
February 12, 2016 Decision and Order Denying Renewed Motion to Amend and Transferring
Case to the Sixth Circuit (ECF No. 75). The crux of Petitioner’s objections is that the Magistrate
Judge erred based on the rationale of Adams v. Bradshaw, No. 07-3688, 2016 WL 963862 (6th
Cir. Mar. 15, 2016). Petitioner asks the undersigned to sustain his objections, vacate the
Magistrate Judge’s decision, and grant Petitioner leave to file a second amended and
supplemental habeas corpus petition.
Petitioner seeks premature relief. The Sixth Circuit issued its Opinion in Adams v.
Bradshaw on March 15, 2016. No mandate issued with that decision, and the mandate will not
issue until at least seven days after the time for filing a petition for rehearing expires or seven
days after entry of an order denying a petition for panel rehearing, petition for rehearing en banc,
or a motion to stay the mandate, whichever is later. See Fed. R. App. P. 41(b). There could be a
rehearing petition or a motion to stay issuance of the mandate related to the filing of a petition
for writ of certiorari. Until the mandate issues, the court of appeals’ Opinion cannot be

considered final, which means it is not the law. See Nat. Res. Def. Council, Inc. v. Cty. of Los
Angeles, 725 F.3d 1194, 1203 (9th Cir. 2013). See also Fed. R. App. P. 41(c), 1998 Adv. Comm.
Note (“A court of appeals’ judgment or order is not final until issuance of the mandate”). This is
because “ a ‘court of appeals may modify or revoke its judgment at any time prior to issuance of
the mandate, sua sponte or by motion of the parties.’ ” Nat. Res. Def. Council, Inc., 725 F.3d at
1203 (quoting U.S. v. Foumai, 910 F.2d 617, 620 (9th Cir. 1990)). The end result is that, absent
issuance of a mandate, reliance on the related opinion “ ‘is a gamble.’ ” Id. (quoting Carver v.
Lehman, 558 F.3d 869, 878 n.16 (9th Cir. 2009)).
The undersigned recognizes the substance of the Sixth Circuit’s March 15, 2016 Opinion
and its potential effect here. But the undersigned also recognizes the problems with the
unexpectedly cursory analysis the court of appeals’ panel set forth regarding the continued
vitality of Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), following the United States
Supreme Court’s decision in Glossip v. Gross, 135 S.Ct. 2726 (2015). Implicit in the Sixth
Circuit’s one-paragraph overview is that the Glossip majority did not know or mean what it was
saying when it characterized the Supreme Court’s prior holding in Hill v. McDonough, 547 U.S.
573 (2006). This tension between the Supreme Court’s understanding of what it has said and
done and the court of appeal’s interpretation could prompt action delaying issuance of the
mandate, if not leading to issuance of a new decision.
Therefore, there is no point in proceeding with briefing on Petitioner’s objection and the
meaning of Adams v. Bradshaw, No. 07-3688, 2016 WL 963862 (6th Cir. Mar. 15, 2016), until
that decision is actually the law. The Court STAYS briefing on Petitioner’s objection until
issuance of the Adams v. Bradshaw mandate. Respondent shall file a response to the objection

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within fourteen days after the court of appeals issues its mandate.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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