United States District Court, S.D. Ohio, Western Division, Cincinnati
M. Rose District Judge.
SUPPLEMENTAL MEMORANDUM OPINION
Michael R. Merz United States Magistrate Judge.
capital habeas corpus case is before the Court on
Petitioner's Objections to/Appeal of (Objections, ECF No.
105) the Magistrate Judge's Memorandum Opinion and
Transfer Order transferring this case to the Court of Appeals
for the Sixth Circuit (Transfer Order, ECF No. 103). The
Warden has responded to the Objections/Appeal (ECF No. 107)
and District Judge Rose has recommitted the matter for
reconsideration in light of the Objections/Appeal (ECF No.
Objections are considered seriatim below.
Objection: A Magistrate Judge Lacks Authority to Transfer a
Second-or-Successive Habeas Application
first objection reads, “Like [sic] before in this case,
the Magistrate Judge's ruling should be reviewed de
novo because it was dispositive of Smith's lethal
injection claims and thus should have been a Report and
Recommendation, not an Opinion and Transfer Order.”
(Objections, ECF No. 105, PageID 2587.)
support, Smith argues first that prior practice in this case
was to treat second-or-successive transfer questions as
dispositive and to have the Magistrate Judge file a Report
and Recommendations instead of deciding the matter
(Objections, ECF No. 105, PageID 2588). Actually, what first
happened was that the Magistrate Judge decided it was unclear
whether the original Petition here was second-or-successive
and transferred the case to the Sixth Circuit (ECF No. 10).
The Sixth Circuit never questioned the authority of the
Magistrate Judge to enter that Order but instead held the
question whether a petition is second-or-successive must be
decided in the first instance by a district court. In re:
Kenneth Smith, 690 F.3d 809 (6th Cir. 2012).
is correct that on remand the Magistrate Judge filed a Report
and Recommendation on the second-or-successive question
without discussing the issue of whether that question was
dispositive or not. Smith v. Warden, 2012 U.S. Dist.
LEXIS 121019 (S.D. Ohio Aug. 27, 2012). The Warden objected
to that Report and argued that review must be de novo. The
Magistrate Judge agreed that the second-or-successive issue
was jurisdictional and therefore dispositive (Supplemental
Report, ECF No. 17, PageID 178). Moreover, Judge Rose
reviewed the Report and Supplemental Report de novo (ECF No.
20, PageID 206-07).
citing the doctrine by name, Petitioner argues the
law-of-the-case doctrine requires the same ruling here:
“The previous rulings by the Magistrate Judge and the
District Judge in this case, however, still control . . .
.” (ECF No. 105, PageID 2589.) Under the doctrine of
law of the case, findings made at one point in the litigation
become the law of the case for subsequent stages of that same
litigation. United States v. Moored, 38 F.3d 1419,
1421 (6th Cir. 1994), citing United States v.
Bell, 988 F.2d 247, 250 (1st Cir. 1993).
"As most commonly defined, the [law-of-the-case]
doctrine posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues in
subsequent stages in the same case." Arizona v.
California, 460 U.S. 605, 618 (1983), citing 1B
Moore's Federal Practice ¶0.404 (1982);
Patterson v. Haskins, 470 F.3d 645, 660-61
(6th Cir. 2006); United States v. City of
Detroit, 401 F.3d 448, 452 (6th Cir. 2005).
“If it is important for courts to treat like matters
alike in different cases, it is indispensable that they
‘treat the same litigants in the same case the same way
throughout the same dispute.'” United States v.
Charles, 843 F.3d 1142, 1145 (6th Cir.
2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law
of Judicial Precedent 441 (2016).
deal of litigation over the second-or-successive question has
occurred in the five years since the prior ruling. For
reasons given in other capital cases, the Magistrate Judge is
now persuaded that a motion to transfer a habeas petition as
second-or-successive is not the functional equivalent of a
motion to dismiss for lack of jurisdiction. See, e.g.,
Tibbetts v. Warden, 2017 U.S. Dist. LEXIS 51968
(S.D. Ohio Apr. 5, 2017). Nevertheless, the law-of-the-case
doctrine cautions against further litigating that question in
this case. The Magistrate Judge therefore agrees that the
District Judge's review should be de novo.
Objection: This Court is Bound by Its Prior Decision that the
Petition is Not Second-or-Successive
notes that District Judge Rose previously adopted the
Magistrate Judge's conclusion that the Petition in this
case is not second-or-successive on the basis of Adams v.
Bradshaw, 644 F.3d 481, 483 (6th Cir.
2011). (Objections, ECF No. 105, PageID 2591.)
Here Petitioner makes an explicit law-of-the-case argument.
Id. at PageID 2592.
law-of-the-case doctrine is not an inexorable command.
"Law of the case directs a court's discretion, it
does not limit the tribunal's power." Arizona v.
California, 460 U.S. 605, 618 (1983), citing
Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922);
Messenger v. Anderson, 225 U.S. 436, 444 (1912);
see also Gillig v. Advanced Cardiovascular Sys.,
Inc., 67 F.3d 586, 589-90 (6th Cir. 1995).
“At the trial level, the doctrine of the law of the
case is little more than a management practice to permit
logical progression toward judgment. Prejudgment orders
remain interlocutory and can be reconsidered at any
time.” 1B Moore's Federal Practice ¶0.404
Magistrate Judge's prior position that the Petition
herein is not second-or-successive was wrong. As noted above,
there has been a great deal of litigation on the
second-or-successive question in the five years since that
ruling was made, both in capital cases which have become
final on a first petition and in cases under 28 U.S.C. §
2255 because of Johnson v. United States, 135 S.Ct.
2551 (2015). The Magistrate Judge's original thinking on
this question was misguided because of the argument that
habeas corpus cases raising lethal injection method of
execution claims were procedurally the same as § 1983
cases raising those claims. For example, in the time before
Glossip v. Gross,135 S.Ct. 2726 (2015), the
Magistrate Judge routinely allowed habeas corpus amendments
any time Ohio's lethal injection protocol was amended.
The Sixth Circuit has continued to permit lethal injection
invalidity claims to be made in habeas corpus cases.
Adams [III] v. Bradshaw, 826 F.3d 306
(6th Cir. June 13, 2016), cert denied, sub
nom. Adams v. Jenkins, 137 S.Ct. 814 (2017). But that
court has not conflated habeas and civil rights procedures in
the manner this Court allowed under Adams I. It has
expressly rejected the argument that adoption of a new lethal
injection protocol is a newly arising ...