Lynch v. Hudson

Filing 110

SUPPLEMENTAL REPORT AND RECOMMENDATIONS; SCHEDULING ORDER - Even though this case is before the Court on a general remand from the Sixth Circuit, the Courts judgment of September 28, 2011, remains final. That is to say, even if this Supplemental Repo rt and Recommendations is adopted by Judge Barrett, the only changes to the final judgment will be (1) Judge Frost's decision that the Gelbort Affidavit is barred by Pinholster and (2) the determination that Hall and Brumfield apply to this case generally without any conclusion as to what difference that makes. As the Report notes, Petitioner's argument about the applicability of those cases is very cursory. It is accordingly ORDERED that Lynch file any motion he may wish the Court to consider under Fed. R. Civ. P. 60(b), arguing the applicability of Hall and Brumfield to this case not later than September 1, 2016. Objections to R&R due by 8/15/2016. Signed by Magistrate Judge Michael R. Merz on 7/28/201 6. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
RALPH LYNCH,
Petitioner,

:

- vs -

Case No. 2:07-cv-948
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

STEWART HUDSON, Warden,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS;
SCHEDULING ORDER

This capital habeas corpus case is before the Court on Petitioner’s Motion to Alter and
Amend under Fed. R. Civ. P. 59(e) (ECF No. 104). The Magistrate Judge recommended
denying the Motion (“Report,” ECF No. 106), Petitioner has objected (ECF No. 107), the
Warden has responded to the Objections (ECF No. 108), and District Judge Barrett has
recommitted the matter for reconsideration in light of the Objections (ECF No. 109).

Standard of Review

Because a motion to amend the judgment under Fed. R. Civ. P. 59(e) is a post-judgment
motion and not a pre-trial matter, it is deemed referred to an assigned magistrate judge under 28
U.S.C. § 636(b)(3). Therefore the standard of review by the District Judge is, as Petitioner
asserts, de novo.

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Scope of the Sixth Circuit Remand

The Report concluded that the Sixth Circuit Remand Order in this case (Lynch v.
Hudson, Case No. 11-4175 (6th Cir. Mar. 19, 2015)(unreported, copy at ECF No. 87) should be
read as a general, rather than a limited, remand (Report, ECF No. 106, PageID 1978). Neither
party has objected to that conclusion and the Magistrate Judge will therefore proceed by treating
that conclusion as part of the law of this case.

Issue Presented by the Motion to Amend the Judgment

Lynch asserts Judge Frost committed clear error when he refused to apply Hall v.
Florida, 134 S. Ct. 1986 (2014), and Brumfield v. Cain, 135 S. Ct. 2269 (2015), to this case
(Motion, ECF No. 104, PageID 1969). The Report found that, although the Sixth Circuit remand
was a general remand, the parties had not treated it that way in their briefing before Judge Frost
(Report, ECF No. 10, PageID 1978). Instead, Petitioner made only a brief argument about Hall
and Brumfield in his Reply Brief (ECF No. 100, PageID 1949-50). Almost all of his argument
was devoted to considering the Gelbort Affidavit despite Cullen v. Pinholster, 563 U.S. 170
(2011), an issue Judge Frost decided against him and which is not the subject of the motion
amend.
The Magistrate Judge recommended denying the Motion to Amend (and any hypothetical
Fed. R. Civ. P. 60(b) motion based on Hall or Brumfield) because those cases “do not apply
retroactively to this case.” (ECF No. 106, PageID 1980). That is the conclusion to which Lynch

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objects (Objections, ECF No. 107, PageID 1985-88).
Is Petitioner Intellectually Disabled?

The Objections spend three pages summarizing the evidence that Petitioner Ralph Lynch
is intellectually disabled (Objections, ECF No. 107, PageID 1983-85)

Do Hall and Brumfield Apply Retroactively to this Case?

The Report found that Lynch’s conviction became final February 28, 2007, and Hall and
Brumfield were decided in 2014 and 2015 respectively (ECF No. 106, PageID 1980). The
Report sets out the Magistrate Judge’s general understanding of the law of retroactivity and its
application in this case as follows:
Subject to two narrow exceptions not applicable here, a case that is
decided after a defendant's conviction and sentence become final
may not provide the basis for federal habeas relief if it announces a
new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v.
Black, 503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989).
A Supreme Court decision announces a new rule where the issue
addressed was susceptible to debate among reasonable minds.
Butler v. McKellar, 494 U.S. 407, 412-415 (1990). A new rule is
“a rule that ... was not dictated by precedent existing at the time the
defendant’s conviction became final.” Saffle v. Parks, 494 U.S.
484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288, 301
(1989)(emphasis in original). The decision in Hall announces a
new rule – a binding presumption against intellectual disability
when a person scores above 70 on an IQ test is unconstitutional.
Brumfield does not announce a new rule but found an unreasonable
determination of the facts decision under § 2254(d)(2).

(Report, ECF No. 106, PageID 1980.)
Lynch takes issue with the conclusion that Hall stated a new rule (Objections, ECF No.

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107, PageID 1986). Instead, the relevant new rule was stated in Atkins v. Virginia, 536 U.S. 304
(2002). In Hall, Lynch asserts, the Supreme Court “utilized the holding from Atkins” to hold
unconstitutional the Florida rule which created a conclusive presumption against intellectual
disability when a habeas petitioner scored higher than 70 on an IQ test (Objections, ECF No.
107, PageID 1986). Lynch claims “[t]he holding in Hall was dictated by the ruling in Atkins. . .”
Id. Lynch notes that neither Hall nor Brumfield mentions Teague. Id. Furthermore, Lynch says
we are bound by precedent since the Sixth Circuit has applied both Hall and Brumfield
retroactively. Id. at 1987, citing Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014), and Williams
v. Mitchell, 792 F.3d 606 (6th Cir. 2015). Lynch argues we should be persuaded by decisions
from other jurisdictions (Objections, ECF No. 107, PageID 1987, citing White v. Commonwealth,
2016 Ky. LEXIS 169 (Ky. Sup. Ct., May 5, 2016), and Oats v. State, 181 So. 3d 457 (Fl. Sup.
Ct. 2015). Finally Lynch argues the Report’s conclusion is at odds with what the Supreme Court
actually did in Brumfield where it applied Hall to a conviction which had become final before
Hall was decided (Objections, ECF No. 107, PageID 1988).
Without question Atkins stated a new rule: persons who are mentally retarded1 may not
constitutionally be executed. That rule was applicable to cases on collateral review because:
in Penry v. Lynaugh, when the question was last before it, the
Court recognized that a constitutional rule barring execution of the
retarded would fall outside Teague v. Lane's ban on retroactive
application of new constitutional rules because it placed the ability
to execute the retarded "beyond the State's power." 492 U.S. 302,
330, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989) (discussing
Teague, 489 U.S. 288, 301-02, 103 L. Ed. 2d 334, 109 S. Ct. 1060
(1989)).
Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002). Atkins stated a new substantive rule of
constitutional law and thus came within an exception to Teague’s non-retroactivity framework.
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The more modern and respectful term for “mental retardation” is “intellectual disability,” but “mental retardation”
was the term in use when Atkins was handed down.

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But the fact that Atkins stated a new rule does not mean that decisions less sweeping that Atkins
do not announce new rules.
In contrast, for example, United States v. Booker, 543 U.S. 220 (2005), which held that
the Sentencing Guidelines would be unconstitutional if treated as mandatory, stated a new
procedural rule.

Because it was not a new “watershed” procedural rule, it did not apply

retroactively to cases on collateral review. Humphress v. United States, 398 F.3d 855 (6th Cir.
2005). As the Humphress court put it, a rule is new if it was not dictated by precedent at the time
a conviction became final. Id. at 860, quoting Beard v. Banks, 542 U.S. 406 (2004). A new rule
is dictated by precedent if the unlawfulness of a conviction would have been “apparent to all
reasonable jurists.” Beard, 124 S. Ct. at 2511, quoting Lambrix v. Singletary, 520 U.S. 518, 52728 (1997).
The Magistrate Judge disagrees with Lynch’s assertion that the result in Hall was dictated
by Atkins or that the unlawfulness of Hall’s death sentence would have been “apparent to all
reasonable jurists.” Justice Kennedy does not claim that the Hall result was thus dictated, nor
does he opine that any reasonable jurist would have understood Hall’s death sentence was
unconstitutional in light of Atkins.
Nevertheless, this Court cannot rely on its own analysis of retroactivity, but must follow
circuit precedent. Van Tran v. Colson, 764 F.3d 594 (6th Cir. 2014), is a capital habeas corpus
case arising from a Tennessee conviction.

In Van Tran, the Sixth Circuit did not decide

explicitly that Hall was to be applied retroactively, but in fact cited Hall (1) for the change in
description of the condition at issue from “mental retardation” to “intellectual disability,” 764 F.
3d at 597; (2) for its reiteration of the Atkins’ holding that the Constitution prohibits the
execution of intellectually disabled persons id. at 604; (3) for its elucidation of the “vague

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command” in Atkins that the States were to develop ways to enforce the prohibition id.; (4) for
its “reason[ing]” that “the Constitution requires the courts and legislatures to follow clinical
practices in defining intellectual disability” id. at 612.
Williams v. Mitchell, 792 F.3d 606 (6th Cir. 2015), was likewise a capital habeas corpus
case citing Hall for the proposition that a State’s test for intellectual disability under Atkins may
not run counter to the clinical definitions of that condition “cited throughout Atkins.” The
Williams court did not expressly discuss whether Hall is to be applied retroactively, but simply
proceeded to apply it. The court remanded the case for issuance of a conditional writ to prohibit
Williams’ execution unless his Atkins petition was properly assessed, holding that the prior state
court assessment was contrary to clearly established federal law,” citing Hall.
The Sixth Circuit has held that clearly established law means the law that existed at the
time of the last state court adjudication on the merits. Bunch v. Smith, 685 F.3d 546, 549 (6th Cir.
2012), citing Greene v. Fisher, 565 U.S. 34 (2011). Plainly, Hall had not been decided at the
time the state court acted in Williams. The decision in Williams does not cite either Bunch or
Greene, but the conclusion is inescapable that the Sixth Circuit applied Hall in deciding the state
court decision in Williams was contrary to clearly established federal law. This Court is bound
by Williams.

Contra In re Henry, 757 F.3d 1151, 1161 (11th Cir. 2014)(stating that “no

combination of Supreme Court holdings compels the conclusion that Hall is retroactive to cases
on collateral review . . . because Hall merely provides new procedures for ensuring that States do
not execute members of an already protected group”). Therefore the conclusion in the Report
that Hall and Brumfield are not to be applied retroactively to this case is in error and is hereby
WITHDRAWN. Judge Frost’s Opinion and Order of April 21, 2016, should be modified to
accept the applicability of Hall and Brumfield to this case.

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What is the Effect of Applying Hall and Brumfield to this Case?

Even though this case is before the Court on a general remand from the Sixth Circuit, the
Court’s judgment of September 28, 2011, remains final. That is to say, even if this Supplemental
Report and Recommendations is adopted by Judge Barrett, the only changes to the final
judgment will be (1) Judge Frost’s decision that the Gelbort Affidavit is barred by Pinholster and
(2) the determination that Hall and Brumfield apply to this case generally without any conclusion
as to what difference that makes.

As the Report notes, Petitioner’s argument about the

applicability of those cases is very cursory.
It is accordingly ORDERED that Lynch file any motion he may wish the Court to
consider under Fed. R. Civ. P. 60(b), arguing the applicability of Hall and Brumfield to this case
not later than September 1, 2016.

July 28, 2016.
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 Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is 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)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law 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
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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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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