Raglin v. Mitchell

• Decision Date: 13 August 2019
• 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

August 13, 2019

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON RULE 59(E) AND 60 MOTIONS

This case is before the Court on Petitioner's Objections (Doc. No. 325) to the Magistrate Judge's Report and Recommendations ("Report," ECF No. 320) recommending denial of Petitioner's Motions to Amend the Judgment (ECF No. 309) and for Relief from Judgment (ECF No. 310). District Judge Barrett has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Recommittal Order, ECF No. 326).

Raglin seeks to reopen or amend the March 22, 2018, judgment in this case so that he can again move to amend his Petition to add allegedly newly ripe lethal injection invalidity claims. His previous motion to that effect (ECF No. 289) was denied on the basis of In re Campbell, 874 F.3d 454 (6^th Cir. 2017) (ECF No. 292, reported at Raglin v. Mitchell, 2017 WL 6629102 (S.D. Ohio Dec. 29, 2017).

Raglin claims that Campbell has been "abrogated" by Bucklew v. Precythe, 139 S.Ct. 1112 (2019). The Report rejected that argument:

Bucklew did not mention Campbell or any other case in which a sister circuit may have held that method of execution claims were not cognizable in habeas, as that issue was not considered or ruled on by the Court; after all, "Bucklew filed this action under 42 U.S.C. § 1983[.]" Bucklew v. Precythe, 883 F.3d 1087, 1089 (8^th Cir. 2018). Further, the portion of Bucklew quoted by Raglin is the only reference to habeas law in the entire opinion. The language used—"recharacterizing . . . as an action for habeas corpus might be proper" and "existing state law might be relevant[,]" Bucklew, 139 S.Ct. at 1128 (internal quotation marks and citation and omitted, emphasis added)—is conditional and hypothetical.

(ECF No. 320 at PageID 4299.)

Raglin objects that the Supreme Court's silence on this point does not mean that it did not abrogate Campbell because in Campbell itself the Sixth Circuit held that its prior precedent (Adams v. Bradshaw (Adams I), 644 F.3d 481, 483 (6^th Cir. 2011), and Adams v. Bradshaw (Adams III), 826 F.3d 306, 321 (6^th Cir. 2016)) was abrogated by Glossip. However, the Campbell court never uses either the word "abrogate" or the word "overrule." Instead, it says "Glossip held that a Baze challenger [an inmate challenging a method of execution under 42 U.S.C. § 1983] has no claim unless he can identify a constitutional means by which he can be executed. Notice that this closes the final path into habeas court left open by Hill [v. McDonough, 547 U.S. 573 (2006)] and Adams II." 874 F.3d at 462. The Campbell Court noted that Adams III was decided after Glossip, but, having found Adams's claim procedurally defaulted, still thought a proper method of execution claim could be brought in habeas. The Campbell court reacted:

Notwithstanding the procedural default, 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 distinguishablefrom 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 [v. Sykes], 433 U.S. [72,] 86-87 [(1977)]. 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.

874 F. 3d at 463-64. Before Adams III but after Glossip, this Court followed Adams I and allowed lethal injection invalidity claims in habeas even from those inmates simultaneously pursuing Baze claims in § 1983. But then we treated Glossip as "upending" that practice. Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015)(Frost, D.J.). Then came Adams III and, at the urging of Petitioner's counsels' firm,¹ we reverted to our practice of allowing those claims in habeas. Then came Campbell.

In Glossip, the Supreme Court stated that "Hill '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.'" 135 S.Ct. at 2738. In Henderson the petitioner had characterized that sentence from Glossip as "mere dictum." Judge Frost disagreed because the sentence was a portion of Glossip necessary to the result and therefore binding. 136 F. Supp. 3d at 851, citingSeminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Moreover, even if the sentence were dictum,

[I]t carries with it an important part of the majority's rationale for the result the majority reaches and is thus entitled to greater weight than a stray aside tagged onto a decision. SeeSeminole Tribe of Florida, 517 U.S. at 67 (quoting Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 490, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). The unavoidable fact is that a majority of the Supreme Court has now stated in unmistakable language that "[w]e held [in Hill] 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." Glossip, 135 S.Ct. at 2738. Justice Kennedy, the author of Hill, in fact joined the majority in Glossip without writing separately to dispute that characterization of the former case. In light of these circumstances, it is not for this Court or any other lower court to say Hill means otherwise than what Glossip said it means. Regardless of how this Court or other courts read Hill in the past, it is the obligation of the lower courts to comply with the teachings of a Supreme Court majority.

Id.

Thus, even though the holding in Glossip did not compel this Court, the logic/rationale as embodied in the Supreme Court's interpretation of Hill was compelling, as the Sixth Circuit eventually held in Campbell.

As the Report points out, there is nothing in the Bucklew opinion which is even as remotely in point as the Hill language interpreted in Glossip. More to the point, the Sixth Circuit has not found that Bucklew abrogates Campbell. Thus, while the Magistrate Judge agrees it is possible for a Supreme Court decision to effectively negate a lower court precedent, nothing said in Bucklew supports that inference.

Justice Gorsuch's language in Bucklew relied on by Raglin is as follows:

[E]xisting state law might be relevant to determining the proper procedural vehicle for the inmate's claim. See Hill v. McDonough, 547 U.S. 573, 582-583, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) (if the relief sought in a 42 U.S.C. §1983 action would "foreclose theState from implementing the [inmate's] sentence under present law," then "recharacterizing a complaint as an action for habeas corpus might be proper").

Bucklew, 139 S.Ct. at 1128. Nothing in this language, itself a quotation from Hill, suggests that the Court was re-thinking its interpretation of Hill in Glossip. And "recharacterizing" a complaint filed in a § 1983 case as a habeas petition, is very far from authorizing a lethal injection invalidity claim to be pleaded both in § 1983 and habeas corpus simultaneously.

Raglin objects to the Magistrate Judge's citation to the Bucklew majority's expression of frustration at long delays in finality in capital cases, characterizing it as dictum (Objections, ECF No. 325, PageID 4325). Raglin cites Justice Sotomayor's dissent referring to this portion of the majority opinion (Part IV) as "troubling dicta" and then proceeds for five pages to discuss how the delay which would be occasioned by reopening the judgment here would be completely different from the delay criticized in Part IV.

The Magistrate Judge agrees that Part IV of the majority opinion in Bucklew is dicta. Therefore the extent to which it should control this Court's decisions in this and other capital cases is debatable, as is always the case for applying appellate decisions in subsequent trial court cases. This section of the Objections concludes, "Raglin objects to the Magistrate Judge's determination that the avoidance of delay is an appropriate justification for denying his motions." (ECF No. 325, PageID 4331.) But avoidance of unnecessary delay is always a proper consideration in deciding a motion to amend under Fed.R.Civ.P. 15. Foman v. Davis, 371 U.S. 178, 182 (1962)(stating that in the absence of any undue delay, the leave sought should be freely given); see also Coe v. Bell, 161 F.3d 320, 341-42 (6^th Cir. 1998)(death penalty case identifying undue delay as factor to be considered in determining whether amendment should be granted), quoting Brooks v. Celeste, 39 F.3d 125, 130 (6^th Cir. 1994). The Report...