Lynch v. Hudson

Filing 81

ORDER denying 71 Petitioner's Motion to Alter or Amend the Judgment and denying 72 Petitioner's Motion to Stay this Matter and hold the Proceedings In Abeyance. Signed by Judge Gregory L Frost on 2/8/12. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RALPH LYNCH,
Petitioner,
v.
STUART HUDSON, Warden,

Case No. 2:07-cv-948
JUDGE GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

Respondent.
OPINION AND ORDER
The Court entered final judgment dismissing the instant capital habeas corpus petition on
September 28, 2011. (ECF No. 69.) Petitioner filed a notice of appeal on October 26, 2011.
(ECF No. 70.) This matter is now before the Court on Petitioner’s motions to alter, amend, or
correct the Court’s judgment (ECF No. 71) and to stay this matter and hold the proceedings in
abeyance (ECF No. 72).
In Cullen v. Pinholster, 131 S.Ct. 1388 (2011), the Supreme Court granted certiorari to
resolve two questions, the first of which was “whether review under § 2254(d)(1) permits
consideration of evidence introduced in an evidentiary hearing before the federal habeas court.”
Id. at 1398. In Pinholster, the district court and then the United States Court of Appeals for the
Ninth Circuit, sitting en banc, had held that a California state court’s decision rejecting
Pinholster’s ineffective assistance claim was contrary to or involved an unreasonable application
of clearly established federal law and warranted habeas corpus relief on the basis of evidence
developed during a federal evidentiary hearing. The Supreme Court reversed, holding “that
review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.” Id. Noting that “[o]ur cases emphasize that review under § 2254(d)(1)
focuses on what a state court knew and did,” the Supreme Court remarked that “[i]t would be
strange to ask federal courts to analyze whether a state court’s adjudication resulted in a decision
that unreasonably applied federal law to facts not before the state court.” Id. at 1399.

“[H]old[ing] that evidence introduced in federal court has no bearing on § 2254(d)(1) review,”
the Supreme Court made clear that, “[i]f a claim has been adjudicated on the merits by a state
court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that
was before that state court.” Id. at 1400. This Court in its September 28, 2011 Opinion and
Order denying Petitioner habeas corpus relief applied Pinholster to preclude consideration of the
findings of neuropsychologist Dr. Michael Gelbort that Petitioner developed and presented for
the first time in this proceeding. (ECF No. 68.)
In his motion to alter or amend the judgment, Petitioner asserts that this Court erred in
applying Pinholster to the instant petition. (ECF No. 71, at 3.) Petitioner argues that it was error
because he “did all that he could do to obtain funding for Dr. Gelbort from the state courts, but
was unsuccessful through no fault of his own.” (Id.) The gravamen of Petitioner’s argument is
that systemic inadequacies in Ohio’s postconviction procedure deprived him of the full and fair
opportunity to develop evidence and present his claim that California’s postconviction
procedures allowed the petitioner in Pinholster. Petitioner thus reasons that “[i]t cannot possibly
be that the Supreme Court in Pinholster meant for a petitioner in Lynch’s situation to be denied
the right to utilize the services of such an expert.” (Id. at 4.) To that point, Petitioner
emphasizes that application of Pinholster in such a manner penalizes indigent defendants in
violation of the Equal Protection Clause. “Had Lynch not been indigent,” Petitioner asserts, “he
could have retained the services of Dr. Gelbort during the state post-conviction proceedings and
his opinion would be part of the record before this Court.” (Id. at 5.) Petitioner proceeds to
argue as he did in his petition that he met his burden of establishing that he is mentally retarded
and accordingly ineligible for the death penalty. (Id. at 5-8.)
Respondent opposes Petitioner’s motion. “As a threshold matter,” Respondent begins,
“the Court is without jurisdiction because Lynch filed a notice of appeal post-judgment but prior
to filing his motion to alter or amend.” (ECF No. 74, at 1.) Respondent argues in the alternative

2

that this Court should deny Petitioner’s motion because by merely rehashing the same arguments
that he raised before, Petitioner “fail[s] to provide any appropriate rationale to alter or amend
judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.” (Id.) Respondent
proceeds to assert that even assuming the Court could consider Dr. Gelbort’s findings, that new
evidence does not advance Petitioner’s claim. (Id. at 10-12.)
In reply, Petitioner begins by insisting that Fed. R. App. P. 4(a)(4)(B)(I) vests this Court
with jurisdiction over Petitioner’s Rule 59 motion to alter or amend the judgment. (ECF No. 79,
at 2.) Petitioner proceeds to argue that he did provide a basis for this Court to alter or amend the
judgment. In particular, Petitioner asserts that he “has not had the opportunity to present the
arguments in his Rule 59(e) motion relating to the specific findings of this court regarding the
effect of Pinholster and the mental retardation claim.” (Id. at 3.) Petitioner reasons that
Pinholster should not erect a barrier to consideration of Dr. Gelbort’s materials because
Petitioner did not fail to present those materials to the state courts; rather, “he was forestalled
from presenting the materials.” (Id.) Petitioner adds that he did make a new argument in support
of his mental retardation claim, specifically challenging as “factually incorrect” this Court’s
conclusion that under the standard error of measurement, it was as equally plausible that
Petitioner’s IQ was as high at 77 as it was that his IQ was as low as 67. (Id. at 5-6 (quoting ECF
No. 68, at 45).) Petitioner also argues that Respondent’s position regarding this Court’s
application of Pinholster lacks merit and that Dr. Gelbort’s materials do advance Petitioner’s
mental retardation claim. (Id. at 6-10.)
Two days after filing his motion to alter or amend, Petitioner filed a motion to stay this
matter and hold the proceedings in abeyance in order to permit him to exhaust his new evidence
in the state courts. (ECF No. 72.) Petitioner emphasizes that although he does not concede that
Pinholster precludes consideration of Dr. Gelbort’s findings, “due to this Court’s Opinion and
out of an abundance of caution, counsel for Mr. Lynch filed a post-conviction petition with the

3

Hamilton County Court of Common Pleas to address the evidence ascertained in Dr. Gelbort’s
report.” (Id. at 2-3.)
Respondent opposes Petitioner’s motion. First, Respondent argues that this Court is
without jurisdiction over the motion, by virtue of Petitioner having first filed a notice of appeal.
(ECF No. 75, at 2-3.) Respondent in the alternative asserts that the Court should deny
Petitioner’s motion, not only because it is unsupported by any authority allowing for stay and
abeyance, but also because Petitioner was dilatory in initiating his new postconviction action in
the state trial court. (Id. at 4-9.)
In reply, Petitioner begins by reiterating his argument that Fed. R. App. P. 4(a)(4)(B)(I)
vests this Court with jurisdiction to entertain the instant motion even in the wake of Petitioner
having filed a notice of appeal. (ECF No. 78, at 2-3.) Petitioner next takes aim at Respondent’s
inconsistency in arguing on the one hand that the claims that Petitioner identified as his basis for
the requested stay and abeyance–claims in support of which Petitioner offers Dr. Gelbort’s
findings–were already exhausted and on the other hand that this Court cannot consider Dr.
Gelbort’s findings by virtue of the fact that Petitioner did not exhaust them in the state courts.
(Id. at 3-4.) After explaining why Dr. Gelbort’s findings have merit, Petitioner concludes by
declaring that Respondent’s “argument that Petitioner was intentionally dilatory in pursuing his
additional postconviction petition is as absurd as it is insulting.” (Id. at 4.)
As a threshold matter, the Court concludes that it has jurisdiction to rule on Petitioner’s
motion to alter or amend. Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides in
relevant part:
(A)

If a party timely files in the district court any of the following motions under
the Federal Rules of Civil Procedure, the time to file an appeal runs for all
parties from the entry of the order disposing of the last such remaining
motion:
...
(iv)

to alter or amend the judgment under Rule 59[.]
4

Fed. R. App. P. 4(a)(4)(A)(iv). Under the most recent version of Fed. R. Civ. P. 59(e), a motion
to alter or amend is timely if filed within 28 days of the date the Court enters judgment.
Petitioner filed his Rule 59 motion within that time limit, thus providing this Court with
jurisdiction to rule on his motion. See, e.g., United States v. Real Prop. Located at U.S. Highway
South, 23 F App’x 523, 526 (6th Cir. 2001) (holding that although the filing of a notice of appeal
normally divests a district court of control over the aspects of the case implicated by the appeal,
a timely filed motion to alter or amend the judgment tolls the running of the time to file a notice
of appeal); Johnson v. Epps, 35 F.3d 566, 1994 WL 445098, at *1 (6th Cir. 1994) (unpublished
table decision) (“A notice of appeal filed before or during the pendency of a timely motion to
alter or amend is ineffective.”).
Respondent premises his argument that this Court is without jurisdiction to entertain the
instant motion on the notion that “Rule 4 of the Federal Rules of Appellate Procedure would not
postpone the transfer of jurisdiction because Lynch filed his notice after the Court’s judgment
while there was no pending motion before the Court.” (ECF No. 74, at 2.) The statutory
language contains no such precondition or restriction and Respondent offers no authority in
support of this interpretation. In fact, the rules speak to the instant scenario, expressly providing
for what becomes of a notice of appeal filed prior to disposition of a motion to alter or amend.
Rule (4)(a)(4)(B)(i) states that “[i]f a party files a notice of appeal after the court announces or
enters a judgment–but before it disposes of any motion listed in Rule 4(a)(4)(A)–the notice
becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of
the last such remaining motion is entered.”
The Court finds a bit murkier the question of whether it has jurisdiction to consider
Petitioner’s motion for stay and abeyance. That said, both parties note that the Sixth Circuit sent
a letter indicating that it would hold Petitioner’s appeal in abeyance until this Court rules on the
motions pending before it. Although the Sixth Circuit referenced the motions identified in Fed.
5

R. App. P. 4(a)(4)(A), which includes a Rule 59(e) motion to alter or amend but not a motion for
stay and abeyance, the fact that the Sixth Circuit referenced “motions” in the plural gives rise to
a reasonable inference that this Court, at least in the Sixth Circuit’s view, has jurisdiction to rule
on both motions. The Court is satisfied that it has jurisdiction to rule on both of Petitioner’s
motions.
Rule 59(e) relief is available to correct a clear error of law, to give effect to an
intervening change in controlling law or newly discovered evidence, or to prevent a manifest
miscarriage of justice. Gencorp, Inc. v. American Int’l Underwriters, 178 F.3d 804, 834 (6th
Cir. 1999). A motion to alter or amend judgment pursuant to Rule 59(e) is not an opportunity to
re-argue the same facts, law, or evidence. Thus, a petitioner should not use a Rule 59(e) motion
to present arguments that could and should have been raised during the litigation. Sault Ste.
Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998). Similarly, a Rule
59(e) motion is not the proper vehicle for arguments better suited for appeal. See Keweenaw Bay
Indian Cmty. v. Michigan, 152 F.R.D. 562, 563 (W.D. Mich. 1992) (“Where the movant is
attempting to obtain a complete reversal of the court’s judgment by offering essentially the same
arguments presented on the original motion, the proper vehicle for relief is an appeal.”).
Petitioner’s argument challenging this Court’s application of Pinholster is one more
suited for appeal, especially in view of the procedural posture of this case. Because this Court
has already issued final judgment rejecting Petitioner’s claims and dismissing this case, the court
most suited to determined whether this Court erred in applying Pinholster is the Sixth Circuit,
not this Court.
The same reasons that render altering or amending final judgment inappropriate also
render inappropriate staying this case and holding the proceedings in abeyance. Petitioner has
made his arguments. This Court has rejected them. It is time for him to take his case to the
Court of Appeals for the Sixth Circuit. The Court expresses no opinion about the merits of either

6

of Petitioner’s motions and nothing in this order prohibits Petitioner from pursuing remedies in
the state courts.
For the foregoing reasons, the Court DENIES Petitioner’s motions to alter or amend the
judgment (ECF No. 71) and to stay this matter and hold the proceedings in abeyance (ECF No.
72).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

7