Smith v. Pineda

          Thomas M. Rose District Judge.

          SUPPLEMENTAL MEMORANDUM OPINION

          Michael R. Merz United States Magistrate Judge.

         This 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. 106).

         Petitioner's Objections are considered seriatim below.

         First Objection: A Magistrate Judge Lacks Authority to Transfer a Second-or-Successive Habeas Application

         Smith 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.)

         In 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 (6^th Cir. 2012).

         Petitioner 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).

         Without 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 (6^th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1^st 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 (6^th Cir. 2006); United States v. City of Detroit, 401 F.3d 448, 452 (6^th 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 (6^th Cir. 2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).

         A great 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.

         Second Objection: This Court is Bound by Its Prior Decision that the Petition is Not Second-or-Successive

         Petitioner 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 (6^th Cir. 2011).^[1] (Objections, ECF No. 105, PageID 2591.) Here Petitioner makes an explicit law-of-the-case argument. Id. at PageID 2592.

         The 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 (6^th 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 (1982).

         The 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 (6^th 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 ...