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Raglin v. Mitchell

United States District Court, S.D. Ohio, Western Division, Cincinnati

April 10, 2017

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

          Michael R. Barrett District Judge

          DECISION AND ORDER

          Michael R. Merz United States Magistrate Judge

         This capital habeas corpus case is before the Court on Petitioner's Renewed Motion for Leave to File an Amended and Supplemental Petition Raising Lethal Injection Grounds for Relief (“Renewed Motion, ” ECF No. 272).

         Procedural History

         On December 27, 1995, Petitioner Walter Raglin murdered Michael Bany in Cincinnati, Ohio. After conviction and imposition of a sentence of death, Raglin appealed to the Ohio Supreme Court which affirmed the conviction and sentence. State v. Raglin, 83 Ohio St.3d 253 (1998), cert. den., 525 U.S. 1180 (March 1, 1999). After denial of certiorari, Raglin filed his Petition in this Court September 13, 2000 (Doc. No. 14) and a First Amended Petition on March 8, 2005 (ECF No. 76). On August 5, 2005, District Judge Rice dismissed the Second, Thirty- Seventh, and Thirty-Eighth Grounds for Relief (ECF No. 87). On February 2, 2006, the Magistrate Judge recommended dismissing the First Amended Petition with prejudice (ECF No. 89). Petitioner filed a Second Amended Petition on April 17, 2012 (ECF No. 178).

         In overruling Respondent's Objections to the proposed second amended petition, Judge Barrett wrote:

The Sixth Circuit has held that challenges to Ohio's legal injection procedures are cognizable in a habeas petition. Adams v. Bradshaw, 644 F.3d 481, 482-83 (6th Cir. 2011); see also Shank v. Mitchell, 2:00-CV-17, 2013 WL 3208554 (S.D. Ohio June 24, 2013) (concluding that petitioner's claims properly sound in habeas corpus); but see Treesh v. Robinson, 1:12cv2322, 2012 WL 5617072 (N.D. Ohio Nov. 15, 2012) (finding claims not cognizable in habeas). This Court has also recognized that “[t]he Sixth Circuit has taken the position that the statute of limitations governing method-of-execution challenges brought via § 1983 begins anew any time Ohio adopts a new written protocol.” Chinn v. Bradshaw, 3:02-CV-512, 2012 WL 2674518 (S.D. Ohio 2012) (citing Cooey v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010)). This Court has applied this reasoning to method-of-execution challenges brought in habeas. Id. Here, Petitioner claims that his claims could not have been raised previously because Ohio adopted its latest written execution policy on September 18, 2011. This Court concludes that because Petitioner's Motion to Amend was filed on March 8, 2012, Petitioner filed his claims within the one-year statute of limitations found at 28 U.S.C. § 2244(d)(1)(D).

(ECF No. 198, PageID 2365-66 (Sept. 13, 2013).) In the same Order, Judge Barrett dismissed all grounds for relief in the First Amended Petition, but allowed Raglin to file a second amended petition adding the following claims:

Thirty-Ninth Ground for Relief: Raglin's execution will violate the Eighth Amendment because Ohio's lethal injection protocol will result in cruel and unusual punishment.
Fortieth Ground for Relief: Raglin's execution will violate the Fourteenth Amendment because Ohio's lethal injection protocol will deprive him of equal protection of the law.

Id. at PageID 2367. Almost immediately, Raglin conceded these new grounds for relief were moot and they were dismissed on that basis without objection (ECF Nos. 204, 205). In the meantime, Raglin had sought and received a stay of consideration of his lethal injection claims (ECF Nos. 200, 203). After much back and forth on scheduling, the Magistrate Judge on April 28, 2016, denied Mr. Raglin's Renewed Motion for Leave to File a Third Amended Petition without prejudice to its renewal within thirty days of the mandate in the Adams habeas litigation. The instant Motion was filed consistent with that schedule.

         Raglin's Proposed Third Amended Petition

         Raglin's proposed Third Amended Petition contains forty-five grounds for relief as follows:

FIRST GROUND FOR RELIEF: Walter Raglin was denied his right to the effective assistance of counsel at the pretrial and trial phases of his capital trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.
SECOND GROUND FOR RELIEF: Walter Raglin was denied his right to the effective assistance of counsel at the mitigation phase of his capital trial in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments.
THIRD GROUND FOR RELIEF: Walter Raglin was denied his right to the effective assistance of counsel under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments when his attorneys failed to object and properly preserve numerous errors.
FOURTH GROUND FOR RELIEF: Walter Raglin was denied his right to the effective assistance of counsel on his direct appeals in violation of the Sixth and Fourteenth Amendments to the United States
FIFTH GROUND FOR RELIEF: Walter Raglin's rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution were violated when the trial court admitted into evidence at the trial phase of the capital proceedings his inculpatory statement made to members of the Cincinnati Police Department on January 3, 1996, because his statement was the fruit of an illegal arrest.
SIXTH GROUND FOR RELIEF: Walter Raglin's rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress his statement made to members of the Cincinnati Police Department on January 3, 1996, because his statement was made during a custodial interrogation following an unfulfilled request for counsel. Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451U.S. 477 (1981); Minnick v. Mississippi, 489 U.S. 146 (1990).
SEVENTH GROUND FOR RELIEF: Walter Raglin's rights under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress his statement made to members of the Cincinnati Police Department on January 3, 1996, because his statement was involuntarily given.
EIGHTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment Rights were violated when the judge refused to instruct the jury at the end of the trial phase that it could find Mr. Raglin guilty of involuntary manslaughter, a lesser included offense of aggravated murder.
NINTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment rights were violated when the judge erroneously instructed the jury at the end of the trial phase on the issues of causation, foreseeability, intent, and purpose.
TENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth, and Fourteenth Amendment rights were violated when the judge failed to properly instruct the jury at the end of the trial phase as to the definitions for reasonable doubt, beyond a reasonable doubt and circumstantial evidence.
ELEVENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that its verdict of death merely constituted a recommendation to the bench and that the judge would make the final decision with respect to the imposition of the death penalty.
TWELFTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge failed to properly instruct the jury at the end of the mitigation phase as to the definition of reasonable doubt.
THIRTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that it should consider all the evidence admitted during the trial phase of the proceedings with respect to its deliberations following the mitigation phase of the trial.
FOURTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge failed to properly instruct the jury at the end of the mitigation phase as to the definition of the mitigating circumstances that the jury should consider during its deliberations.
FIFTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that it could consider any other factors that are relevant to the issue of whether it should recommend that Walter Raglin be sentenced to death.
A. The trial court's mitigation phase instructions violated Raglin's rights by permitting the jury to consider any factor it desired in determining the appropriate penalty in his case.
B. The trial court's mitigation phase instructions violated
SIXTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that it could consider the killing itself as a factor relevant to the issue of whether it should recommend that Walter Raglin be sentenced to death and by instructing the jury that the killing itself was an aggravating circumstance.
SEVENTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase in such a manner that the jury could conclude that it had to consider and reject a recommendation as to the imposition of death before it could consider either life sentence option.
EIGHTEENTH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge instructed the jury at the end of the mitigation phase that it could consider the nature and circumstances of the offense as a mitigating factor in its determination of whether it should recommend that Walter Raglin be sentenced to death.
NINETEENTH GROUND FOR RELIEF: Walter Raglin's Firth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge refused to instruct the jury at the end of the mitigation phase that it could consider Walter Raglin's remorse, residual doubt and cooperation with law enforcement as mitigating factors it could consider in its determination of whether it should recommend that Walter Raglin be sentenced to death.
TWENTIETH GROUND FOR RELIEF: Walter Raglin's Fifth, Sixth, Seventh, Eighth and Fourteenth Amendment rights were violated when the judge refused to instruct the jury at the end of the mitigation phase that it could consider the sentencing alternative of life without parole.
TWENTY-FIRST GROUND FOR RELIEF: Walter Raglin was denied his rights to an impartial and disinterested jury due to the bias of Juror Tara Veesart in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
TWENTY-SECOND GROUND FOR RELIEF: Walter Raglin was denied his Sixth Amendment rights because juror Tara Veesart was influenced by occurrences from outside of the courtroom, out of the presence of the jury and without the rights of confrontation, cross- examination, and of counsel. These occurrences were communicated to, and thereby prejudicially influenced, other members of Walter Raglin's jury in violation of his rights under the Sixth and Fourteenth Amendment to the United States Constitution.
TWENTY-THIRD GROUND FOR RELIEF: Walter Raglin was denied his constitutional rights to a fair and impartial trial under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments as a result of prosecutorial misconduct during both phases of his capital proceedings.
TWENTY-FOURTH GROUND FOR RELIEF: Walter Raglin was denied his rights in violation of the Eighth Amendment, the due process and equal protection clauses of the Fifth and Fourteenth Amendments and the “Fair cross section” requirement for the Sixth Amendment to the United States Constitution because procedures used by the Hamilton County Court of Common Pleas and the Hamilton County Prosecutor's office to discriminate against African-Americans result in the imposition of the death sentence with much greater frequency upon those who kill white persons than those who kill African-Americans.
TWENTY-FIFTH GROUND FOR RELIEF: Walter Raglin was denied his rights under the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments and the “Fair Cross Section” requirement of the Sixth Amendment to the United States Constitution because the process of selecting grand jurors, grand jury forepersons, and petit jurors in Hamilton County was tainted in 1996 due to consideration of the factor of race in the drawing, selection and impanelment of grand jurors and petit jurors; and due to consideration of the factors of race and gender in the selection of grand jury forepersons.
TWENTY-SIXTH GROUND FOR RELIEF: Walter Raglin was denied his rights under the equal protection clause because the prosecutors used their peremptory challenges to exclude members from the jury based on their race.
TWENTY-SEVENTH GROUND FOR RELIEF: Walter Raglin's constitutional rights as guaranteed by the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments were violated when the trial court, in its decision to impose a sentence of death, improperly considered and weighed invalid or improper aggravating circumstances; failed to specify the reasons why aggravation outweighs mitigation beyond a reasonable doubt; and failed to consider and weigh valid mitigating factors presented by the defense; and when such error was not properly addressed on appeal.
A. The trial court improperly considered an uncharged and unproven statutory aggravating factor in sentencing Mr. Raglin to death.
B. The trial court's failure to state reasons why aggravation outweighed mitigation.
C. The trial court failed to consider and weigh valid mitigating factors presented by the defense.
TWENTY-EIGHTH GROUND FOR RELIEF: The State failed to prove beyond a reasonable doubt the essential element of purpose to kill and Mr. Raglin's conviction is contrary to the manifest weight of the evidence. Therefore, Walter Raglin's death sentence must be vacated pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
TWENTY-NINTH GROUND FOR RELIEF: Walter Raglin was denied his constitutional rights to a fair trial and impartial jury under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments during the mitigation phase because the trial court permitted the prosecutor to introduce irrelevant and highly prejudicial evidence from the trial phase of the capital proceedings.
THIRTIETH GROUND FOR RELIEF: Walter Raglin was denied his constitutional rights under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments during the mitigation phase because the trial court permitted the prosecutor to introduce inadmissible rebuttal evidence that was unfairly prejudicial to Mr. Raglin's rights to a fair trial and impartial jury.
THIRTY-FIRST GROUND FOR RELIEF: Walter Raglin was denied his constitutional rights to a fair trial and impartial jury under the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments when the trial court overruled trial counsel's challenge to the state's use of peremptory challenges under Batson v. Kentucky
THIRTY-SECOND GROUND FOR RELIEF:·Walter Raglin's rights as guaranteed by the Fifth, Sixth, Seventh, Eighth, Ninth and Fourteenth Amendments were violated when the trial court committed multiple errors during the pretrial, trial and mitigation phases of his capital case.
THIRTY-THIRD GROUND FOR RELIEF: The proportionality review that the appellate courts must conduct pursuant to Ohio Revised Code ยง2929.05 is fatally flawed. Therefore, Walter Raglin's death sentence must be vacated pursuant to the Fifth, Eighth and ...

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