Jackson v. Bradshaw

Filing 117

OPINION AND ORDER terminating as moot 113 Motion for Reconsideration; denying 114 Motion for Reconsideration. Signed by Judge George C. Smith on 5/8/2017. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
KAREEM JACKSON,
Petitioner,
v.

Case No. 2:03-cv-983
JUDGE GEORGE C. SMITH
Magistrate Judge Terence P. Kemp

MARGARET BRADSHAW, Warden,
Respondent.
OPINION AND ORDER
Final judgment dismissing this capital habeas corpus petition was entered on September
28, 2007. (ECF No. 57.) This matter is before the Court on Petitioner’s Motion for
Reconsideration of the Court’s Opinion and Order Denying Authorization to Appear in Ancillary
State Court Litigation. (ECF No. 114.)1 Also before the Court are Respondent’s Opposition
(ECF No. 115) and Petitioner’s Reply (ECF No. 116).
The habeas corpus proceedings that Petitioner initiated in 2003 were fully completed in
March 2013. (ECF Nos. 94 and 95.) Petitioner has no habeas corpus proceeding currently
pending before this Court.
On February 27, 2013, the Court issued an Order appointing the Capital Habeas Corpus
Unit (“CHU”) of the Northern District of Ohio as advisory counsel for the purpose of assisting
Assistant Ohio Public Defender Kathryn Sandford in preparing for Petitioner’s clemency
proceedings. (ECF No. 91.) Petitioner had argued that the CHU would provide experience,

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The document docketed as ECF No. 114 is a corrected version of a motion originally
filed as ECF No. 113. Because ECF No. 114 essentially replaces ECF No. 113, the Court will

resources, and expertise to Petitioner’s pursuit of clemency. In granting Petitioner’s request, the
Court made note of the representation of CHU attorney Alan Rossman that appointing CHU for
that purpose would not involve the expenditure of any additional funds.2 (ECF No. 90-2.)
Petitioner, who continues to be represented by the Ohio Public Defender’s Office as cocounsel, filed a Motion for Authorization to Appear in Ancillary State Court Litigation. (ECF
No. 107.) Petitioner sought authorization for the CHU of the Northern District of Ohio “to
represent him in state court so that he may exhaust an actual innocence claim developed by
federal clemency counsel as well as new claims pursuant to Hurst v. Florida, 136 S.Ct. 616
(2016).” (ECF No. 107, at PageID 1340.) Petitioner explained that through state counsel, he had
initiated successor postconviction proceedings in state court based on evidence of actual
innocence uncovered by federal counsel during clemency preparation. (ECF No. 107-1.)
Asserting that the recent Supreme Court decision of Hurst v. Florida invalidates Ohio’s capital
sentencing scheme by allowing the trial court, rather than the jury, to make the factual findings
necessary to sentence Petitioner to death, Petitioner also filed in the trial court a Motion for
Leave to File a Motion for a New Mitigation Trial Pursuant to Criminal Rule 33 (ECF No. 1072) and with the Ohio Supreme Court a Motion for Relief Pursuant to Supreme Court Rule of
Practice 4.01 (ECF No. 107-3).
The Court denied Petitioner’s motion, concluding that neither § 3599(e) nor Harbison
provided authorization for the appointment that Petitioner sought. (ECF No. 112.) Fatal to
Petitioner’s request, in this Court’s view, was the procedural posture of Petitioner’s habeas
corpus case vis-à-vis the proceedings for which he sought appointment of federal clemency

direct the Clerk to terminate ECF No. 113 as moot.
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counsel. That is, the proceedings for which Petitioner sought federally appointed counsel were
more properly characterized as entirely new judicial proceedings aimed at setting aside the statecourt judgment against him on state law grounds, rather than a stage subsequent to his original
habeas corpus proceedings. Case law persuaded this Court that § 3599(e) authorizes
appointment for the latter but not the former.
Petitioner seeks reconsideration of this Court’s decision, reasoning that “the claims
Petitioner is pursuing in his successor post-conviction petition arose from undersigned counsel’s
clemency preparation, which is ongoing. (ECF No. 114, at PageID 1493.) “In this regard,”
Petitioner continues, “the state court litigation that arose directly from counsel’s clemency
investigation is properly viewed as a stage subsequent to counsel’s clemency representation
insofar as the claims being litigated in state court were developed by clemency counsel’s
ethically mandated factual investigation and will be integral to Petitioner’s clemency
presentation, which is not yet concluded.” (Id. at PageID 1494.)
Motions for reconsideration are generally disfavored unless the moving party
demonstrates: (1) a manifest error of law; (2) newly discovered evidence which was not
available previously to the parties; or (3) intervening authority. See, e.g., Meekison v. Ohio Dept.
of Rehabilitation and Correction, 181 F.R.D. 571, 572 (1998). “Courts should not reconsider
prior decisions where the motion for reconsideration either renews arguments already considered
or proffers new arguments that could, with due diligence, have been discovered and offered
during the initial consideration of the issue.” Hamilton v. Gansheimer, 536 F. Supp. 2d 825, 842
(N.D. Ohio 2008) (citing Playa Marel, P.M., S.A. v. LKS Acquisitions, Incorporated, 2007 WL

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The same assertion was made here (ECF No. 110, at PageID 1445, n. 4.)
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3342439, *2 (S.D. Ohio 2007)).
Section 3599(a)(2), Title 18 of the United States Code, authorizes the Court to appoint
“one or more attorneys” to represent a defendant attacking a state sentence of death in federal
proceedings. Section 3599(e) defines the scope of appointment under § 3599(a) as follows:
Unless replaced by similarly qualified counsel upon the attorney’s own motion or
upon motion of the defendant, each attorney so appointed shall represent the
defendant throughout every subsequent stage of available judicial proceedings,
including pretrial proceedings, trial, sentencing, motions for new trial, appeals,
applications for writ of certiorari to the Supreme Court of the United States, and
all available post-conviction process, together with applications for stays of
execution and other appropriate motions and procedures, and shall also represent
the defendant in such competency proceedings and proceedings for executive or
other clemency as may be available to the defendant.
In Harbison v. Bell, 556 U.S. 180, 182-83, 185-86 (2009), the Supreme Court held that §
3599(e)’s reference to “proceedings for executive or other clemency as may be available to the
defendant” encompasses state clemency proceedings. The Supreme Court rejected arguments
that the statute was intended to furnish representation in only federal proceedings and further
made clear that counsel’s representation pursuant to the statute includes only those proceedings
transpiring subsequent to his or her appointment. Id. at 188. The Supreme Court also rejected
the Government’s argument that the Court’s interpretation of the statute would require a lawyer
who succeeded in setting aside a death sentence during postconviction proceedings to represent
that client during an ensuing state retrial, noting that “[w]hen a retrial occurs after postconviction
relief, it is not properly understood as a ‘subsequent stage’ of judicial proceedings but rather as
the commencement of new judicial proceedings.” Id. at 189. Finally, the Supreme Court noted
that Congress’s decision to furnish counsel for state clemency proceedings showed recognition
of the importance of clemency in Anglo-American jurisprudence and of the manner in which the

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duties counsel performs in habeas corpus can provide the basis for a persuasive clemency
application. Id. at 193.
The Court of Appeals for the Sixth Circuit set forth its interpretation of Harbison in Irick
v. Bell, 636 F.3d 298 (6th Cir. 2011). There, a Tennessee inmate sentenced to death requested
federal counsel pursuant to § 3599 in order to pursue in state court a writ of error coram nobis
based on evidence discovered during federal habeas corpus proceedings, a reopening of state
postconviction, a competency-to-be-executed process, and clemency proceedings. The district
court had granted the appointment as to only the clemency proceedings, and Petitioner appealed.
The Sixth Circuit affirmed the district court’s refusal to appoint federal counsel for the
competency proceedings, noting that Tennessee law provided for adequate representation for
those proceedings. As for the district court’s refusal to appoint federal counsel for reopening of
state postconviction, the Sixth Circuit agreed that Harbison explicitly limited § 3599
representation to exclude state habeas and other proceedings not subsequent to the original
appointment and that the state postconviction proceedings Irick sought to pursue were not a stage
subsequent to habeas corpus but rather the commencement of new judicial proceedings. The
Sixth Circuit explained, “Irick is not attempting to exhaust a claim in the state courts for the
purpose of later presenting it in federal court; rather, he is re-opening a state judgment on statelaw grounds.” Id. at 292. “Section 3599,” the Sixth Circuit continued, “does not authorize
federal funding for this type of proceeding.” Id. See also Gray v. Warden, Georgia Diagnostic
Prison, 686 F.3d 1261, 1273-74, 1277 (11th Cir. 2012) (holding that although § 3599(e)’s
language is broad the Supreme Court in Harbison found certain limitations and that footnote 7 in
Harbison described a mixed petition scenario in which certain claims required state-court

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exhaustion for the purpose of later being presented in a habeas corpus action on hold.)
In seeking reconsideration, Petitioner argues that the authorization he seeks “does not
contravene either Harbison v. Bell, 556 U.S. 180 (2009), or Irick v. Bell, 636 F.3d 298 (6th Cir.
2011)[,]” because neither is directly on point. (ECF No. 114, at PageID 1493.) “Although no
court has spoken directly on the issue,” Petitioner continues, “Harbison and Irick seem to
support this understanding of clemency counsel’s role in favor of authorizing clemency counsel
to participate in state court litigation of claims interrelated with counsel’s clemency
representation.” (Id. at PageID 1495.) Petitioner points to language in Harbison recognizing
that clemency is deeply rooted in our Anglo-Saxon tradition of law, and asserts that Irick did not
speak to clemency counsel’s participation in already-initiated and on-going state collateral
proceedings arising directly from evidence gained through clemency counsel’s clemency
representation. (Id.) With respect to this Court’s determination that “ ‘[c]haracterizating a
proceeding as affecting clemency efforts going forward . . . would effectively extend § 3599 to
virtually any other proceeding or process, which would fly in the face of Harbison and Irick,’ ”
(ECF No. 114 at PageID 1495 (quoting ECF No. 112, at PageID 1483-1484)), Petitioner insists
that “in a narrow circumstance such as this were the state litigation is none other than federal
counsel’s clemency presentation adapted for state court litigation, the authorization for federal
counsel to participate in the state court proceedings does not impermissibly expand § 3599
representation.” (ECF No. 114, at PageID 1495-1496.) “Rather,” Petitioner emphasizes,
“allowing clemency counsel’s participation will ensure that Petitioner’s state clemency
representation guaranteed by § 3599 and Harbison is carried out unobstructed by an inability to
participate in the development of claims that form the foundation of the Petitioner’s clemency

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effort.” (Id. at PageID 1496.)
Petitioner does not assert a manifest error of law, newly discovered evidence, or
intervening authority. Rather, he disagrees with this Court’s interpretation and/or application of
Harbison and Irick. That is an argument more suited for appeal, not a motion for
reconsideration.3
For the foregoing reasons, Petitioner’s Motion for Reconsideration of Court’s Opinion
and Order Denying Authorization to Appear in Ancillary State Court Litigation (ECF No. 114) is
DENIED. The Court further DIRECTS the Clerk to TERMINATE ECF No. 113 as moot,
since ECF No. 114 essentially replaces ECF No. 113.
IT IS SO ORDERED.

s/ George C. Smith__________________
GEORGE C. SMITH, JUDGE
UNITED STATES DISTRICT COURT

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In her Opposition, Respondent argues simply that the Sixth Circuit in Baze v. Parker,
632 F.3d 338, 341-45 (6th Cir. 2011), expressly rejected the premise that the power of the Court
to appoint counsel for state clemency under Harbison v. Bell, 556 U.S. 180 (2009), extends to
contemporaneous state post-conviction/habeas proceedings. (ECF No. 115, at PageID 1498.)
Petitioner disputes that characterization of the holding in Baze. (ECF No. 116.) Although the
Court is not entirely persuaded that Respondent’s is an accurate characterization of the holding in
Baze, the Court need not resolve that issue in view of its decision denying Petitioner’s Motion
for Reconsideration as failing to make a colorable showing of manifest error of law, newly
discovered evidence, or intervening authority.
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