Raglin v. Mitchell

• Decision Date: 10 June 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

June 10, 2019

District Judge Michael R. Barrett

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS ON PETITIONER'S SECOND MOTION TO ALTER OR AMEND THE JUDGMENT AND MOTION FOR RELIEF FROM JUDGMENT

The Court entered final judgment in this case on March 22, 2018, (Decision and Order, ECF No. 295; Clerk's Judgment ECF No. 296) and modified that judgment on March 22, 2019, when District Judge Michael R. Barrett expanded the Certificate of Appealability to include the issue of whether the Court erred in concluding that his method-of-execution claims are not cognizable in habeas corpus (Order, ECF No. 308).

On April 16, 2019, Raglin filed his Second Motion to Alter or Amend Judgment under Fed.R.Civ.P. 59(e) ("59(e) Motion," ECF No. 309). On April 19, 2019, Raglin filed a Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) ("60(b) Motion," ECF No. 310) and a Notice of Appeal of the final judgment as modified (ECF No. 311, citing ECF Nos. 295-96, 308). The Warden has filed a memorandum in opposition to both the 59(e) and 60(b) Motions (ECF No. 316), to which Raglin has filed a Reply (ECF No. 319).

Because these are post-judgment motions, they are deemed referred to the Magistrate Judge under 28 U.S.C. § 636(b)(3), requiring a recommendation rather than a decision in the first instance.

Analysis

1. This Court has jurisdiction

In her memorandum contra, the Warden argues "that the district court has jurisdiction to consider a Rule 60(b) motion when a notice of appeal has not been timely filed. However, the district court cannot issue a final ruling on the motion until after the appeal has been dismissed for lack of jurisdiction." (ECF No. 316, PageID 4247, citing Fed.R.Civ.P. 62.1(a); United States v. Garcia-Robles, 562 F.3d 763 (6^th Cir. 2009); FHC Equities, L.L.C. v. MBL Life Assur. Corp., 188 F.3d 678, 683 (6^th Cir. 1999). While the Warden has filed a Motion to Dismiss the Appeal (Case No. 19-3361, ECF No. 7), she argues that this Court cannot consider either the 59(e) or 60(b) Motion until and unless the United States Court of Appeals for the Sixth Circuit grants her Motion (Memo. in Opp., ECF No. 316, PageID 4247-48), which is still pending.

The Warden's argument ignores the plain language of Appellate Rule 4(a)(4)(A) and Slep-Tone Entm't Corp. v. Karaoke Kandy Store, Inc., in which the Sixth Circuit held a timely motion contemplated under that Rule "render[s] a notice of appeal effective only after the district court enters an order disposing of such motion. 782 F.3d 712, 716 (6^th Cir. 2015) (internal quotation marks omitted), citing Kusens v. Pascal Co., 448 F.3d 349, 360 (6^th Cir. 2006); Fed.R.App.P. 4(a)(4)(A). In effect, "the notice of appeal becomes temporarily ineffective." Id. at 717-18 (internal quotation marks omitted), quoting 16A CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE: JURISDICTION § 3950.4 (4^th ed. 2014).Motions under Civil Rules 59 and 60 are among those that tolls the time for filing a notice of appeal, Fed.R.App.P. 4(a)(4)(A)(iv-vi), and:

If 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.

Fed.R.App.P. 4(a)(4)(B)(i). As there is no dispute that Raglin's 59(e) and 60(b) Motions were timely filed within twenty-eight days of the modified judgment's being entered, jurisdiction currently rests with this Court, rather than the Sixth Circuit. Thus, the Court may properly adjudicate the merits of the 59(e) and 60(b) Motions.

2. Bucklew is not grounds for Rule 59(e) Relief

Raglin notes that he had "previously requested leave to file an amended petition raising newly ripe lethal injection claims[,]" which this Court did not grant because it read (correctly) the Sixth Circuit case of In re Campbell as precluding method-of-execution claims in habeas corpus and requiring such claims to be brought under 42 U.S.C. § 1983 (59(e) Motion, ECF No. 309, PageID 4208, citing In re Campbell, 874 F.3d 454, 462 (6^th Cir. 2017); Raglin v. Mitchell, No. 1:00-cv-767, 2017 WL 6629102 (S.D. Ohio Dec. 29, 2017) (Merz, Mag. J.). In so holding, Campbell differed from 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), which had not barred method-of-execution claims from being raised in habeas. Id. at PageID 4208-09.¹ Raglin cites the SupremeCourt's recent decision in Bucklew v. Precythe, in which that Court stated that "existing state law might be relevant to determining the proper procedural vehicle for the inmate's claim." 139 S.Ct. 1112, 1128 (2019). For example, the Bucklew Court noted, "if the relief sought in a 42 U.S.C. § 1983 action would 'foreclose the State from implementing the [inmate's] sentence under present law,'" then "'recharacterizing a complaint as an action for habeas corpus might be proper[.]'" Id. (brackets in original), quoting Hill v. McDonough, 547 U.S. 573, 582, 583 (2006). Raglin argues that, through this language, Bucklew abrogated Campbell, essentially returning Sixth Circuit law to its pre-Campbell status. That intervening change in law, he claims, is sufficient cause to grant the motion. (59(e) Motion, ECF No. 309, PageID 4210-11, citing Campbell, 874 F.3d at 463-64; Adams III, 826 F.3d at 321; Adams I, 644 F.3d at 483; Leisure Caviar v. United States Fish & Wildlife Serv., 616 F.3d 612, 616 (6^th Cir. 2010)).

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. This Court cannot reasonably infer, from such language and context, that the Bucklew Court intended to resurrect an avenue of relief for death row inmates, as Raglin claims.

Moreover, Raglin's reading of Bucklew is at odds with the holding and other language inthe opinion, in which the majority repeatedly expressed frustration at repeated challenges and delays to death sentences. See, e.g., 139 S.Ct. at 1134 (internal quotation marks and citation omitted) ("[T]he long delays that now typically occur between the time an offender is sentenced to death and his execution are excessive. . . . Courts should police carefully against attempts to use such challenges as tools to interpose unjustified delay."); see also Connors v. Sellers, 136 S.Ct. 2440, 2441 (Mem.) (2016) (Breyer, J., dissenting from denial of certiorari) (Collecting cases in which Justice Breyer has noted the decades-long waits between death sentence and execution for many inmates). Moreover, as the Warden points out, Bucklew did not address, much less abrogate, the Supreme Court's holdings in Hill and Glossip v. Gross that method-of-execution claims must be brought under 42 U.S.C. § 1983 unless the claim is tantamount to an attack on the validity of the death sentence itself (Memo. in Opp., ECF No. 316, PageID 4248, citing Glossip, 135 S.Ct. 2726, 2738 (2015); Hill, 547 U.S. at 579-80). As both Glossip and Hill predated the decision in Campbell, they were and remain binding authority upon the Sixth Circuit and this Court, and Bucklew's passing reference to Hill may not reasonably be read as the "intervening change in the controlling law" required for relief under Civil Rule 59(e).

Yet, even if Bucklew had abrogated Campbell in the limited circumstances described supra, Raglin still would not be able to raise his method-of-execution claims in habeas. Raglin argues in his Reply that:

The question for habeas corpus consideration is whether Raglin can demonstrate that Ohio is incapable of carrying out his execution under the present law. If so, then his sentence is an illegal sentence, because it is impossible to carry out. The present law permits execution in Ohio only via lethal injection.

(ECF No. 319, PageID 4285, citing Ohio Rev. Code § 2949.22). Raglin and the Warden appear to agree that the language of Ohio's death penalty statute, Ohio Rev. Code § 2949.22, controls asto the cognizability of his claims in habeas (Memo. in Opp., ECF No. 316, PageID 4248-49, quoting Ohio Rev. Code § 2949.22(C)). "It is a 'fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.'" Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000), quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989). In light of this fundamental canon, Raglin's argument is unavailing for two reasons. First, while Raglin is correct that lethal injection is the only statutorily permissible method of execution, Ohio Rev. Code § 2949.22(A), the statute does not specify a particular means of lethal injection that must be used. Thus, it does not follow that if the current protocol were found to be unconstitutional, it would render any lethal injection unconstitutional or illegal under the statute. Second, Raglin does not argue that his death warrant specifies that he may only be executed by lethal injection; nor does he claim that he has any medical or other restriction that would...