Chinn v. Warden Mansfield
Filing
196
SECOND SUPPLEMENTAL MEMORANDUM ON PROPOSED AMENDMENTS. Signed by Magistrate Judge Michael R. Merz on 1/19/2018. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVEL CHINN,
Petitioner,
:
- vs -
Case No. 3:02-cv-512
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz
CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.
SECOND SUPPLEMENTAL MEMORANDUM ON PROPOSED
AMENDMENTS
This capital habeas corpus case is before the Court on Petitioner=s Objections (ECF No.
193) to the Magistrate Judge’s Supplemental Memorandum of December 13, 2017 (ECF No.
190). Respondent has replied to the Objections (ECF No. 194) and Chief Judge Sargus has
recommitted the matter for reconsideration in light of the Objections (ECF No. 195).
In a Decision and Order of November 8, 2017, the Magistrate Judge denied Petitioner
leave to amend his Petition to add lethal injection invalidity claims (proposed Grounds 24, 25,
26, & 27) on the basis of In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub nom.
Campbell v. Jenkins, 138 S.Ct. 466 (2017). The same Order repeated an earlier denial of a
motion to add claims under Hurst v. Florida, 136 S.Ct. 616 (2016), on the basis of In re Coley,
871 F.3d 455 (6th Cir. 2017). Chinn appealed (ECF No. 187), the Warden responded to the
appeal (ECF No. 188), Chief Judge Sargus recommitted the matter (ECF No. 189), and the
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Magistrate Judge adhered to the prior rulings (Supplemental Memorandum, ECF No. 190).
The Ethics of Citation
In the Supplemental Memorandum, the Magistrate Judge noted that “a number of judges
of this Court have already held that Hurst is not to be applied retroactively.” (ECF No. 190,
PageID 10278, citing Smith v. Pineda, 2017 WL 631410 (S.D. Ohio Feb. 16, 2017)(Merz, M.J.);
McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio Feb. 15, 2017)(Merz, M.J.);
Gapen v. Robinson, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15, 2017)(Rice, D.J.);
Davis v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep. 25, 2017)(Sargus, Ch. J.);
Lindsey v. Jenkins, Case No. 1:03-cv-702 (S.D. Ohio Sep. 25, 2017)(Sargus, Ch. J.); Myers v.
Bagley, Case No. 3:04-cv-174 (S.D. Ohio Sep. 12,2017)(Marbley, D.J.)(unreported; available in
that case at ECF No. 126); and Robb v. Ishee, Case No. 2:02-cv-535 (S.D. Ohio Sep. 12,
2017)(unreported; available in that case at ECF No. 213). None of these decisions had been
cited by Chinn’s counsel.
The Memorandum then notes:
In all seven of these cases, the death row inmate is represented by
one or more attorneys employed by the Federal Public Defender
for the Southern District of Ohio. Therefore, each of those
attorneys had notice – without doing any legal research – of these
seven in-point precedents that reject the argument made in the
Appeal. Moreover, all of those precedents are recent, having been
handed down this year. And yet none of these precedents is cited in
the Appeal. In any objections to this Supplemental Memorandum,
Petitioner’s counsel shall explain why failure to cite these cases is
not a violation of Rule 3.3 of the Ohio Rules of Professional
Conduct.
(ECF No. 190, PageID 10278-79.)
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Counsel respond first that “none of these cases is ‘legal authority in the controlling
jurisdiction known to [undersigned counsel] to be direct adverse’ to Chinn’s position that Coley
does not foreclose a Hurst claim like Chinn’s.” (ECF No. 193, PageID 10289.).
In In re Coley, 871 F.3d 455 (6th Cir. 2017), the Sixth Circuit denied another Ohio death
row inmate permission to file a second-or-successive habeas petition raising a claim under Hurst.
In doing so, it noted that the Supreme Court had not made Hurst retroactive to cases on collateral
review. Id. at 457. Such a finding, by the Supreme Court itself, is required to authorize a
second-or-successive habeas application under 28 U.S.C. § 2244(b)(2)(A). Lack of such a
finding by the Supreme Court is not in itself fatal to Chinn’s Hurst claim because this case is still
his first habeas application. Therefore counsel are correct that none of the cited cases is adverse
to “Chinn’s position that Coley does not foreclose” his claim.
All seven of those opinions are, however, “legal authority” (i.e., case law) in the
controlling jurisdiction (i.e. the Southern District of Ohio) which are adverse to Chinn’s claim
that Hurst applies retroactively. Each of those cases applied the Supreme Court’s general
retroactivity analysis in Teague v. Lane, 489 U.S. 288 (1989), and concluded Hurst does not
apply retroactively. See, e.g., Davis, supra, 2017 U.S. Dist. LEXIS 157948 at *8. But Chinn’s
counsel apparently believe these seven decisions are not even relevant, stating, “even if the
decisions were relevant . . .” Presumably that means they did not even deserve a “but see”
citation; certainly they did not get one.
Asserting that they take their “professional obligations very seriously,” counsel expound
at some length on the doctrine of stare decisis and request the Court’s guidance on the
applicability of Rule 3.3(a)(2) of the Rules of Professional Conduct to unpublished district court
rulings.
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First they assert that a district court opinion “has no binding precedential value.”
(Objections, ECF No. 193, PageID 10289, citing Bridgeport Music, Inc., v. Dimension Films,
410 F.3d 792, 802, n. 16 (6th Cir. 2005).) Bridgeport is a copyright case regarding sampling a
copyrighted sound recording and reproducing the sample in a film. At note 16, the court
discusses Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y.
1991), and declines to follow it for three reasons, including that it is a district court opinion and
as such has no binding precedential value.1 A comment in a footnote in a copyright case about
one of three reasons for not following a district court opinion from another circuit is not a
holding of the Sixth Circuit. This judge would classify it as judicial dicta. It almost goes
without saying that a district court opinion in the Second Circuit does not bind the Sixth Circuit.
But the Sixth Circuit did not treat Grand Upright as meaningless – it just found it to be (1) nonbinding and (2) unpersuasive. Nevertheless, non-binding opinions can be persuasive.
Do counsel wish to assert that a district court opinion has no precedential value even for
the deciding judge? A basic principle of the rule of law is that like cases should be decided alike.
Would they be open to having the undersigned refuse to give Hurst retroactive effect in one case
and then, without explaining the change, to give it retroactive effect in the next case raising the
issue?
The next general principle counsel cite is that “the doctrine of stare decisis does not
compel one district judge to follow the decision of another.” (Objections, ECF No. 193, PageID
10289). That is certainly an accepted principle.2
1
The court noted, however, that the third reason, that here was no analysis set forth in the district court decision the
appellate court was reviewing, was the most important reason for not citing Grand Upright as precedent.
2
Interestingly, although there is abundant published precedent for this principle, Chinn’s principal citation is to an
unpublished decision while a page later in the Objections, his counsel assert “unpublished opinions are never
controlling authority.”
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There is no such thing as "the law of the district." Even where the
facts of a prior district court case are, for all practical purposes, the
same as those presented to a different district court in the same
district, the prior "resolution of those claims does not bar
reconsideration by this Court of similar contentions. The doctrine
of stare decisis does not compel one district court judge to follow
the decision of another." State Farm Mutual Automobile Insurance
Co. v. Bates, 542 F. Supp. 807, 816 (N.D. Ga. 1982). Where a
second judge believes that a different result may obtain,
independent analysis is appropriate. Id.
Threadgill v. Armstrong World Industries, Inc., 928 F.2d 1366, 1371 (3rd Cir. 1991). See also
Colby v. J.C. Penney Co., Inc., 811 F.2d 1119, 1124 (7th Cir. 1987) (district judges should not
treat decisions of other district judges as controlling unless doctrines of res judicata or collateral
estoppel apply); United States v. Article of Drugs Consisting of 203 Paper Bags, 818 F.2d 569,
572 (7th Cir. 1987) (single district court decision has little precedential effect and is not binding
on other district judges in the same district); Starbuck v. City and County of San Francisco, 556
F.2d 450, 457 n.13 (9th Cir. 1977 (same); Farley v. Farley, 481 F.2d 1009 (3rd Cir. 1973) (even a
three-judge decision of the district court is not necessarily binding on any other district court);
and EEOC v. Pan American World Airways, 576 F. Supp. 1530, 1535 (S.D.N.Y. 1984) (district
court decision was not binding even on other district courts in the same district).
Even though decisions of other judges of the same court are not binding precedent, most
judges as a matter of comity or collegiality would want to know what their colleagues had
written. The opinions of a neutral judicial colleague, after all, may balance the advocacy of
parties in a case. In the absence of supervening case authority from the Supreme Court or the
Court of Appeals, a court should as a matter of comity to colleagues and even-handed justice to
litigants, follow decisions of its own judges. See United States v. Hirschhorn, 21 F.2d 758
(S.D.N.Y. 1927); Henry Campbell Black, The Law of Judicial Precedents, §104 (1912).
Chinn’s counsel next argue that “the Sixth Circuit has indicated that the ethical rules
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require disclosure of only published opinions in any event.” (Objections, ECF No. 193, PageID
10290, citing United States v. Marks, 209 F.3d 577 (6th Cir. 2000).) The relevant portion of the
Marks opinion reads:
This court's opinion in [United States v. Ware, 161 F.3d 414 (6th
Cir. 1998), cert. denied, 526 U.S. 1045 (1999)] unequivocally
forecloses defendants' argument.
Ware was decided on December 3, 1998. Defendants submitted
their proof briefs in late January of 1999, nearly two months later.
They do not mention Ware. Instead, they excoriate the government
for its use of "bribed testimony" that was "illegally obtained"--as if
Ware had never been decided. During all of the time between the
submissions of their proof briefs in January of 1999 and oral
argument in January of 2000, counsel never acknowledged, as
permitted by Rule 28(j) of the Federal Rules of Appellate
Procedure, that Ware had been decided and that their argument
was foreclosed as a result.
At oral argument, counsel admitted that they knew about Ware, but
did not cite it in their briefs because they were "not sure where it
would go in the appellate process." Presumably this meant that
they hoped (unrealistically, in our view) that either this court en
banc or the Supreme Court of the United States would overturn
Ware. Because Ware is a published decision of this court directly
contrary to Defendants' position, it should have been disclosed. See
Model Rules of Professional Conduct Rule 3.3(a)(3) ("A lawyer
shall not knowingly fail to disclose to the tribunal legal authority in
the controlling jurisdiction known to the lawyer to be directly
adverse to the position of the client and not disclosed by opposing
counsel"); Rule 3.3(b) (providing that this duty continues "to the
conclusion of the proceeding.").
209 F.3d at 585. Thus Chinn’s counsel correctly cite Marks for the proposition that a prior
decision of the Sixth Circuit that “forecloses” an argument must be disclosed to the Sixth Circuit
in a subsequent case. But the obligation to disclose X does not logically imply that there is no
obligation to disclose anything else. For example, the fact that an attorney for one of the parties
to an appeal is dating a law clerk of the panel member designated to write the opinion would not
appear in a prior published opinion of the circuit; that would not imply that it did not need to be
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disclosed.
Chinn’s counsel finally argue that “unpublished opinions are never controlling authority,”
(Objections, ECF No. 193, PageID 10290, citing Fonseca v. Consolidated Rail. Corp., 246 F.3d
585 (6th Cir. 20003).) In Fonseca, the Sixth Circuit found a district court had erred in treating a
prior unpublished Sixth Circuit decision as controlling. Id. at 585, citing 6th Cir. R. 28(g), and
Salamalekis v. Commissioner of Soc. Sec., 221 F.3d 828, 833 (6th Cir. 2000). Chinn also cites
the undersigned’s recent opinion in United States v. Baltimore, 2017 WL 5562294 (S.D. Ohio
Nov. 20. 2017), for the same proposition. Since the opinion in Baltimore is unpublished, am I
bound to follow it on this particular issue? Even if I am not bound, am I interested to know what
I recently wrote in a reported opinion on the same question?
Chinn’s counsel conclude by asserting there is a “current lack of clarity in the case law,”
and ask for “guidance” on the applicability of the rule to unpublished district court decisions.”
To respond usefully requires making some distinctions.
First of all, there is a rule of law about published Sixth Circuit opinions: they are
controlling binding precedent for future Sixth Circuit panels and for all district courts in the
circuit. But “published” in the circuit court context means designated for publication in the
Federal Reporter. 6th Cir. Internal Operating Procedure 32.1(b)(1). No such rule exists for this
District Court. Publication in the Federal Supplement or Federal Rules Decisions, the trial court
parallel to the Federal Reporter, is dependent on submission by the deciding judge to Thomson
Reuters. There is no legal difference between a district court decision published in Federal
Supplement and one that is not.
By virtue of § 205 of the E-Government Act, Pub. L. 107-347, federal courts are required
to make available to the public “all written opinions issued by the court, regardless of whether
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Fonseca was actually decided in 2001.
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such opinions are to be published in the official court reporter, in a text searchable format.” The
Judicial Conference of the United States has adopted an official definition of “written opinion”
as it is included in this statute to mean any decision by a judge that gives reasons for the
decision. To effectuate the Act, then, federal judges are instructed to designate through the
CM/ECF system any order that meets the definition. On a daily basis, the Westlaw, LEXIS, and
Government Printing Office robotically extract these written opinions and make them available
to the public, to subscribers in the case of Westlaw and LEXIS, and to the general public without
fee in the case of the GPO. Searching Westlaw and LEXIS databases is apparently the principal
means of conducting legal research in the United States today and the principal legal research
skill taught to recent law school graduates.
The Model Rules of Professional Conduct were initially drafted by the Kutak
Commission of the American Bar Association and adopted by the House of Delegates of the
ABA in August 1983. Rule 3.3(a)(2) speaks of legal authority without distinguishing between
published and unpublished opinions. The Model Rules were not adopted by the Ohio Supreme
Court until February 1, 2007, more than twenty years after their promulgation by the ABA, but
without taking any notice of how legal publishing and research had changed in the interim. The
Rules became the governing ethical authority in this Court when adopted by the Ohio Supreme
Court. See Rule IV(B) of the Rules of Disciplinary Enforcement attached to the Local Rules.
Whether or not Rule 3.3 requires in general the disclosure of prior unfavorable but
relevant unpublished district court decisions, the Magistrate Judge regards as insufficiently
professional the failure of Chinn’s counsel to cite the seven cases cited in the Supplemental
Memorandum. All of the cases are relevant to the question of whether Hurst is to be applied
retroactively and all decide it is not. All of those opinions except the ones by Judge Marbley
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were readily available on the LEXIS, Westlaw, and GPO databases. All of them, including those
by Judge Marbley, had been distributed to the law offices for which Chinn’s counsel work.
Counsel do not assert that they considered these seven cases and found them to be irrelevant and
therefore not required to be cited; such an assertion would be in any event incredible, given the
concentration of these attorneys on capital defense work. It is not as if counsel were being
questioned about their failure to cite unpublished district court decisions from Nebraska in 1987.
The point of this exercise is not to decide whether Chinn’s counsel are subject to
professional discipline. The Sixth Circuit in Marks, faced with a plain violation of Rule 3.3, did
not refer the matter to disciplinary counsel; it merely chided counsel for their lack of mandated
candor.4 The Magistrate Judge here finds the failure to cite the prior cases a disappointing lack
of candor and cautions against its repetition. To properly fulfill its judicial function, the Court
needs to be in dialogue with recent opinions of other judges on the same topic, whether those
opinions are binding or merely persuasive.
Hurst v. Florida Does Not Apply to Cases on Collateral Review
Chinn seeks to amend his Petition to add two claims for relief under Hurst v. Florida, 136
S.Ct. 616 (2016). As noted above, every judge of this Court to consider the issue, including
Chief Judge Sargus to whom this case is assigned, has decided that Hurst does not apply
retroactively to cases on collateral review (See cases cited supra at p.2.)
Instead of suggesting an alternative analysis under Teague v. Layne, supra, Chinn argues
the Court should stay this case pending Chinn’s exhaustion of his Hurst claim in the state courts
See James G. Carr, A Judge’s Guide to Protecting Your Reputation, 36 Litigation, 26, 28 (Spring 2010)
(emphasizing the importance of acknowledging relevant but unfavorable law without distinguishing between
published and unpublished decisions.)
4
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(Objections, ECF No. 193, PageID 10292). When he initially filed for leave to add a Hurst
claim, he did not disclose that he had simultaneously filed a motion for new mitigation trial in
the Montgomery County Court of Common Pleas nor did he seek a stay (Motion, ECF No. 145).
In fact, he has never filed a motion for stay and abeyance under Rhines v. Weber, 544 U.S. 269
(2005), and only now suggests it would be appropriate.
Chinn notes that if the Ohio courts grant him relief, this case will be over and projects
there is good reason to believe the Ohio courts will give Hurst retroactive effect (Objections,
ECF No. 193, PageID 10292). The Magistrate Judge respectfully disagrees with that projection.
In State v. Fears, 147 Ohio St. 3d 1439 (2016), the Ohio Supreme Court turned down a motion to
stay Fears’ execution pending determination of the applicability of Hurst. On the same day, the
court denied a motion for relief based on Hurst filed by death row inmate Larry Gapen. State v.
Gapen, 147 Ohio St. 3d 1440 (2016). Also on the same day it denied parallel motions in State v.
Myers, 147 Ohio St. 3d 1440 (2016), and State v. Sheppard, 147 Ohio St. 3d 1439 (2016). None
of these published decisions of the Ohio Supreme Court is cited in the Objections.
Chinn relies instead on the decision in State v. Kirkland, 145 Ohio St. 3d 1455 (2016),
where the Ohio Supreme Court, without any discussion and by a 4-3 vote, granted a motion for
relief and remanded a capital case for a new mitigation and sentencing hearing. Thus the weight
of authority on Hurst retroactivity in the Ohio Supreme Court is four to one against, with no
explanation in any of those cases.
The Ohio courts could lawfully apply Hurst retroactively under Ohio law. Danforth v.
Minnesota, 552 U.S. 264 (2008). But under Teague v. Lane, supra, Hurst is not retroactively
applicable as a matter of federal law and therefore Chinn’s conviction and death sentence are not
unconstitutional. Chinn should not be allowed to amend to add Hurst claims because the
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amendment would be futile.
Lethal Injection Invalidity Claims
As to the motion to add lethal injection invalidity claims, Chinn stands on his prior
argument (Objections, ECF No. 193, PageID 10294).
Therefore no additional analysis is
required.
Conclusion
Based on the foregoing analysis, the Objections should be overruled.
January 19, 2018.
s/ Michael R. Merz
United States Magistrate Judge
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