Raglin v. Mitchell

• Decision Date: 29 December 2017
• Docket Number: Case No. 1:00-cv-767
• Parties: WALTER RAGLIN, Petitioner, v. BETTY MITCHELL, Warden, Respondent.
• Court: U.S. District Court — Southern District of Ohio

WALTER RAGLIN, Petitioner, v. BETTY MITCHELL, Warden, Respondent.

Case No. 1:00-cv-767

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

December 29, 2017

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

SUPPLEMENTAL OPINION ON MOTION TO AMEND

This capital habeas corpus case is before the Court on Petitioner's Appeal (ECF No. 289) of the Magistrate Judge's Decision Denying Petitioner's Motion to Amend (ECF No. 287). The Warden has responded to the Appeal (ECF No. 291) and District Judge Barrett has recommitted the matter for a supplemental opinion (ECF No. 290).

Petitioner agrees that a motion to amend is non-dispositive under 28 U.S.C. § 636(b) and therefore it was proper for the Magistrate Judge to decide the motion rather than recommending a decision (Appeal, ECF No. 289, PageID 4115). Raglin notes that all of his objections involve questions of law on which the Magistrate Judge's Decision is to be reviewed de novo. Id. at PageID 4116 and the Magistrate Judge agrees.

The Impact of In re: Campbell

The Decision appealed from concluded that In re Campbell, 874 F.3d 454 (6^th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 199 L. Ed. 2d 350 (2017), requires this Court to cease its practice of allowing lethal injection invalidity claims to be pleaded in habeas corpus cases. Rather, the Campbell court, applying the Supreme Court's decision in Glossip v. Gross, 135 S. Ct. 2726 (2015), concluded those claims can only be brought in an action for injunctive relief under 42 U.S.C. § 1983. Raglin himself is a plaintiff in just such a case, In re Lethal Injection Protocol Litig., 2:11-cv-1016 (the "Protocol Case"), with most other Ohio death row inmates. They seek injunctive relief in that case on constitutional bases parallel to those in the lethal injection invalidity claims he seeks to add here. (Compare Proposed Grounds in ECF No. 272-1 with the Fourth Amended Omnibus Complaint in the Protocol Case, ECF No. 1252.)

Raglin first objects (Appeal, ECF No. 289, PageID 4116) that Campbell cannot be followed here because "Campbell is in conflict with the earlier binding precedent Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) ("Adams III"), and Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011) ("Adams I")."

What remedy does a death-sentenced inmate have for an unconstitutional method of execution - habeas corpus, 42 U.S.C. § 1983, or both?

A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages over a habeas corpus action. Among other things, it is not subject to the second-or-successive limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of focused on what happened in the state courts, it is not limited in the introduction of evidence imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011).

Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district court could not grant release from confinement in a § 1983 action because to do so would frustrate the habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). It was in Nelson v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of execution claim could be brought in a § 1983 case, over the objection of state officials who insisted that such a claim had to be brought in habeas corpus and would, in Nelson's case, have been subject to the second-or-successive requirement imposed by 28 U.S.C. § 2244(b). The Court unanimously concluded that, because Nelson's challenge to the method of execution (a vein cut-down procedure) did not challenge his actual death sentence, it could be brought in a § 1983 action.

Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of the Protocol Case, was filed December 8, 2004, and references an even earlier filing in Case No. 2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in the Protocol Case, Cooey remains pending. The same organizations of attorneys who provide representation to plaintiffs in that case - the Capital Habeas Units of the Offices of the Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public Defender's Office - also represent most of the capital habeas corpus petitioners in this Court. Thus the litigation context provides maximal opportunities for coordination of strategy. To this Court's eye, those opportunities are never missed; if there are internal disagreements among the capital petitioners' bar, they are not apparent to this Court.

Petitioners' bar has had an apparent strategy for some years to have parallel habeas and § 1983 actions pending simultaneously on behalf of the same inmate and raising substantivelyparallel claims. Implementation of this strategy has been supported by the series of decisions of the Sixth Circuit in Stanley Adams' habeas corpus case from the Northern District of Ohio, Adams v. Bradshaw, 644 F.3d 481, 483 (6^th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6^th Cir. March 15, 2016); and Adams v. Bradshaw, 826 F.3d 306 (6^th Cir. June 13, 2016), referred to herein as Adams I, Adams II, and Adams III respectively.

In Adams I the circuit court held, over Ohio's objection, that a challenge to the method of lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say, availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add lethal injection claims.

Then the Supreme Court appeared to call this Court's practice into question with its decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):

Petitioners contend that the requirement to identify an alternative method of execution contravenes our pre-Baze [v. Rees, 533 U.S. 35 (2008)] decision in Hill v. McDonough, 547 U. S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006), but they misread that decision. The portion of the opinion in Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In Hill, the issue was whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under §1983. Id., at 576, 126 S. Ct. 2096, 165 L. Ed. 2d 44. We held that a method-of-execution claim must be brought under §1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence. Id., at 579-580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.

135 S.Ct. at 2738(emphasis added). Changing course, this Court concluded the "must be brought" language precluded what it had been doing under Adams I. As Judge Frost put it "Glossip now undeniably upends that practice." Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015).

Then, in Adams II as clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I. Adams v. Bradshaw, 826 F.3d 306, 318-21 (6^th Cir. 2016), cert den. sub nom. Adams v. Jenkins, 137 S. Ct. 814, 196 L. Ed. 2d 602 (2017). By denying certiorari, the Supreme Court passed up a chance to clarify the meaning of Glossip. This Court then changed course again and began allowing lethal injection invalidity claims in habeas. It was on that basis that the Magistrate Judge granted leave to amend in April 2017.

But on October 25, 2017, the Sixth Circuit decided Campbell.

Based on the history just recited, the Magistrate Judge wholeheartedly agrees with Raglin that Campbell conflicts Adams I and Adams III, both of which are published decisions of Sixth Circuit panels that pre-date Campbell. The Campbell panel dealt with that conflict directly.

Notwithstanding the procedural default [that the Adams panel found barred merits relief], the panel proceeded to speculate in dicta about the viability of a psychological-torment claim. Adams III, 826 F.3d at 320. It ultimately found the claim unsupported by the substantive law. Even then, the panel proceeded to discuss—again in dicta—the holding of Adams II in light of Glossip. Id. at 321. It reiterated that "Adams's case is distinguishable from Hill because Adams argues that lethal injection cannot be administered in a constitutional manner, and that his claim 'could render his death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547 U.S. at 580). Therefore, "to the extent that [a petitioner] challenges the constitutionality of lethal injection in general and not a lethal-injection protocol, his claim is cognizable in habeas." Id.

We think this dictum mischaracterizes both Adams II and Glossip. And, of course, dictum in a prior decision—as opposed to a holding—does not bind future panels, including this one. 6th Cir. R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir. 2010) (explaining that statements which are "not necessary to the outcome" are not binding on later panels). The Adams III panel had already concluded that the petitioner's claim was both procedurally defaulted and forfeited. Adams III, 826 F.3d at 320. And although we may choose to excuse forfeiture in an exceptional case, we cannot ignore procedural default absent an express finding of cause and prejudice. Wainwright, 433 U.S. at 86-87. Thus, the statements"necessary" to the decision in Adams III ended when the panel acknowledged the default and forfeiture without any indication that an exception was present. Adams III, 826 F.3d at 320.

Thus, to the extent that Adams III purported to permit Baze-style habeas claims that refuse to concede the possibility of an acceptable means of execution, it is not controlling. Since Glossip's holding directly addressed that question, it is binding on us, and we follow it today. In doing so, we do not intend to diminish the

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