Lynch v. Hudson
SECOND SUPPLEMENT TO SUBSTITUTED REPORT ANDRECOMMENDATIONS - Having reconsidered the matter in light of the Objections and in light of Moore v. Texas, supra, the Magistrate Judge again respectfully recommends the District Court deny Lynch's Motion to Amend (ECF No. 104) and advise the Sixth Circuit that the remand has been completed, so that it may resume its review on the merits. Objections to R&R due by 8/23/2017. Signed by Magistrate Judge Michael R. Merz on 8/9/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
- vs -
Case No. 2:07-cv-948
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
STEWART HUDSON, WARDEN,
SECOND SUPPLEMENT TO SUBSTITUTED REPORT AND
This case is before the Court on Petitioner=s Objections (ECF No. 133) to the Magistrate
Judge’s Supplement to Substituted Report and Recommendations (ECF No. 130). Respondent
filed a Response to the Objections (ECF No. 135) and Judge Barrett has recommitted the case for
reconsideration in light of the Objections (ECF No. 134). Petitioner has also filed a Notice of
Supplemental Authority (ECF No. 136), calling the Court’s attention to Moore v. Texas, ___
U.S. ___, 137 S. Ct. 1039, 197 L. Ed. 2d 416 (2017).
In Atkins v. Virginia, 536 U.S. 304 (2002), the Supreme Court held as a substantive
matter that execution of the intellectually disabled1 constitutes cruel and unusual punishment in
violation of the Eighth Amendment.
However, the Court left to the States adoption of
procedures for determining which persons were intellectually disabled and therefore exempt
from the death penalty. See Bies v. Bobby, 556 U.S. 825 (2009). In Ohio death row inmates were
1 The Court used the term “mentally retarded,” but after that term came to be seen as insufficiently respectful, substituted “intellectual disability” but made it clear the terms had
the same legal content.
permitted to raise the issue in petitions for post-conviction relief under Ohio Revised Code §
2953.21. The Ohio Supreme Court prescribed the procedure in State v. Lott, 97 Ohio St. 3d 303
(2002). Petitioner had a post-Atkins proceeding under Ohio Revised Code § 2953.21 which
concluded on October 24, 2005, and found that Petitioner is not intellectually disabled (ECF No.
68, PageID 1042-43).
On April 21, 2016, just before his retirement, Judge Gregory Frost resolved the issue
remanded to this Court by the Sixth Circuit (ECF No. 101). Within two weeks after Judge
Frost’s retirement, Petitioner filed the pending Motion to Alter or Amend under Fed. R. Civ. P.
59(e)(ECF No. 104). Petitioner claimed Judge Frost was in error in refusing to apply Hall v.
Florida, 134 S. Ct. 1986 (2014), to this case on the basis that that was outside the scope of the
remand. Id. at PageID 1969. The Magistrate Judge then determined that the remand was general
in scope and directed Petitioner to brief the application of Hall v. Florida, 134 S. Ct. 1986
(2014), and Brumfield v. Cain, 135 S. Ct. 2269 (2015), to this case, assuming hypothetically that
they are applicable retroactively to cases on collateral review2 (ECF No. 118, PageID 2026).
After the parties filed their memoranda on the applicability of Hall and Brumfield, the
Magistrate Judge filed the Supplement to Substituted Report and Recommendations which is the
subject of the present Objections.
In the Supplement, the Magistrate Judge attempted to distinguish the holdings of Hall and
Brumfield from the dicta in those cases and concluded neither decision would have any impact in
this case because (1) unlike Florida, Ohio does not have a rigid IQ score cut-off and (2) unlike
Louisiana, Ohio gave Lynch a post-Atkins hearing on this intellectual disability claim (ECF No.
130, PageID 9380-82).
2 The Magistrate Judge is of the opinion that retroactive application of Hall and Brumfield is barred by Teague v. Lane, 489 U.S. 288 (1989), because neither creates a new
substantive constitutional right nor recognizes a new “watershed” rule of criminal procedure. Since this case is already on appeal from Judge Frost’s 2011 decision on the merits,
the hypothetical assumption of applicability is made to avoid the need for further remand from the circuit court.
The Supplement then lays out in detail what Lynch claims are the applicable holdings of
Hall and Brumfield and why those items from the Hall and Brumfield decisions are not part of
the holdings in those cases (Supplement, ECF No. 130, PageID 9382-86).
In the Objections, Petitioner discusses ways the Supreme Court in Hall, Brumfield, and
other cases has discussed current science in arriving at its conclusions (ECF No. 133, PageID
9407-10). Ultimately in Objection #6, “Petitioner objects to the Magistrate’s determination that
only the holdings in cases ‘count.’” Id. at 9412. The Magistrate Judge agrees with Petitioner that
that statement is “too summary.” What the Supplement should have said is that only holdings of
the Supreme Court “count” as clearly established law for habeas corpus cases. And that is not
this Court’s determination, but the decision of the Supreme Court itself. Lockyer v. Andrade, 538
U.S. 63, 71 (2003); White v. Woodall, 134 S. Ct. 1697, 1702 (2014); Woods v. Donald, 575 U.S.
___, 135 S. Ct. 1372, *; 191 L. Ed. 2d 464 (2015); Virginia v. LeBlanc, 582 U.S. ___, 198 L. Ed.
2d 186 (June 12, 2017).
For the reasons stated in the Supplement, none of the propositions relied on by Petitioner
from Hall or Brumfield are part of the holdings in those cases.
In his Objection #8, Petitioner “objects to the Magistrate-Judge’s conclusion that Lynch
thinks Hall and Brumfield entitled him to a de novo review of his intellectual disability claim.”
(ECF No. 133, PageID 9414.) What Lynch demands instead is that this Court, instead of
conducting a de novo review itself, remand the case to the state courts and order that they apply
the current science of intellectual disability to deciding whether Petitioner is intellectually
disabled or not. Id. The result of adopting that rule would be that any time the science applicable
to a conviction changes after the conviction becomes final, the habeas petitioner would be
entitled to start over in the state courts and finality would be circumvented.3 Since intellectual
disability is a subject of current scientific interest, it seems likely, if this rule were adopted, that
new science could lead to repeated remands to the state courts.
The Magistrate Judge has no doubt of the authority of the Supreme Court to make
standard error of measurement (SEM) or the Flynn Effect or other parts of the science of
intellectual disability as part of the substantive right not to be executed if one is intellectually
disabled. But it has not done so in Hall or Brumfield.
Moore v. Texas, supra, was handed down March 28, 2017, after Petitioner’s Objections
became ripe. In Moore a state habeas court, apparently considering the question for the first time
and de novo, found in 2014 that Moore was intellectually disabled, applying, inter alia, the 2010
11th edition of the clinical manual of the American Association on Intellectual Disability and the
2013 Diagnostic and Statistical Manual of the American Psychiatric Association (the “DSM 5”).
The Texas Court of Criminal Appeals reversed, holding the state habeas court should instead
have applied the earlier 9th edition of the AAID Manual. The Supreme Court reversed, holding
that “the medical community’s current standards supply one constraint on the States’ leeway” in
determining intellectual disability for Atkins’ purposes. 137 S. Ct. at 1053.
Nowhere in Moore does the Court suggests its decision is retroactively applicable to
cases pending on collateral review. Under Teague v. Lane, supra, it is not because it is neither a
new substantive constitutional rule nor a watershed procedural rule.
retroactively would lead to repeated intellectual disability determinations in the same case
whenever the medical consensus changed. No doubt the Supreme Court has the power to declare
that Moore must be applied retroactively, but it has not done so as yet.
3 It is hardly surprising that a death row inmate prefers a remand with an order to redetermine intellectual disability to a de novo proceeding in habeas court. A remand, given this
Court’s experience, is likely to take two years or more.
Having reconsidered the matter in light of the Objections and in light of Moore v. Texas,
supra, the Magistrate Judge again respectfully recommends the District Court deny Lynch’s
Motion to Amend (ECF No. 104) and advise the Sixth Circuit that the remand has been
completed, so that it may resume its review on the merits.
August 9, 2017.
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. 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
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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