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Raglin v. Mitchell

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

December 29, 2017

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

          Michael R. Barrett, District Judge


          Michael R. Merz, United States Magistrate Judge

         This capital habeas corpus case is before the Court on Petitioner's Appeal (ECF No. 289) of the Magistrate Judge's Decision Denying Petitioner's Motion to Amend (ECF No. 287). The Warden has responded to the Appeal (ECF No. 291) and District Judge Barrett has recommitted the matter for a supplemental opinion (ECF No. 290).

         Petitioner agrees that a motion to amend is non-dispositive under 28 U.S.C. § 636(b) and therefore it was proper for the Magistrate Judge to decide the motion rather than recommending a decision (Appeal, ECF No. 289, PageID 4115). Raglin notes that all of his objections involve questions of law on which the Magistrate Judge's Decision is to be reviewed de novo. Id. at PageID 4116 and the Magistrate Judge agrees.

         The Impact of In re: Campbell

         The Decision appealed from concluded that In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 199 L.Ed.2d 350 (2017), requires this Court to cease its practice of allowing lethal injection invalidity claims to be pleaded in habeas corpus cases. Rather, the Campbell court, applying the Supreme Court's decision in Glossip v. Gross, 135 S.Ct. 2726 (2015), concluded those claims can only be brought in an action for injunctive relief under 42 U.S.C. § 1983. Raglin himself is a plaintiff in just such a case, In re Lethal Injection Protocol Litig., 2:11-cv-1016 (the “Protocol Case”), with most other Ohio death row inmates. They seek injunctive relief in that case on constitutional bases parallel to those in the lethal injection invalidity claims he seeks to add here. (Compare Proposed Grounds in ECF No. 272-1 with the Fourth Amended Omnibus Complaint in the Protocol Case, ECF No. 1252.)

         Raglin first objects (Appeal, ECF No. 289, PageID 4116) that Campbell cannot be followed here because “Campbell is in conflict with the earlier binding precedent Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) (“Adams III”), and Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011) (“Adams I”).”

         What remedy does a death-sentenced inmate have for an unconstitutional method of execution - habeas corpus, 42 U.S.C. § 1983, or both?

         A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages over a habeas corpus action. Among other things, it is not subject to the second-or-successive limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of focused on what happened in the state courts, it is not limited in the introduction of evidence imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011).

         Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district court could not grant release from confinement in a § 1983 action because to do so would frustrate the habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). It was in Nelson v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of execution claim could be brought in a § 1983 case, over the objection of state officials who insisted that such a claim had to be brought in habeas corpus and would, in Nelson's case, have been subject to the second-or-successive requirement imposed by 28 U.S.C. § 2244(b). The Court unanimously concluded that, because Nelson's challenge to the method of execution (a vein cut-down procedure) did not challenge his actual death sentence, it could be brought in a § 1983 action.

         Cooey v. Taft, No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of the Protocol Case, was filed December 8, 2004, and references an even earlier filing in No. 2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in the Protocol Case, Cooey remains pending. The same organizations of attorneys who provide representation to plaintiffs in that case - the Capital Habeas Units of the Offices of the Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public Defender's Office - also represent most of the capital habeas corpus petitioners in this Court. Thus the litigation context provides maximal opportunities for coordination of strategy. To this Court's eye, those opportunities are never missed; if there are internal disagreements among the capital petitioners' bar, they are not apparent to this Court.

         Petitioners' bar has had an apparent strategy for some years to have parallel habeas and § 1983 actions pending simultaneously on behalf of the same inmate and raising substantively parallel claims. Implementation of this strategy has been supported by the series of decisions of the Sixth Circuit in Stanley Adams' habeas corpus case from the Northern District of Ohio, Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6thCir. March 15, 2016); and Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), referred to herein as Adams I, Adams II, and Adams III respectively.

         In Adams I the circuit court held, over Ohio's objection, that a challenge to the method of lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say, availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add lethal injection claims.

         Then the Supreme Court appeared to call this Court's practice into question with its decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):

Petitioners contend that the requirement to identify an alternative method of execution contravenes our pre-Baze [v. Rees, 533 U.S. 35 (2008)] decision in Hill v. McDonough, 547 U.S. 573, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), but they misread that decision. The portion of the opinion in Hill on which they rely concerned a question of civil procedure, not a substantive Eighth Amendment question. In Hill, the issue was whether a challenge to a method of execution must be brought by means of an application for a writ of habeas corpus or a civil action under §1983. Id., at 576, 126 S.Ct. 2096, 165 L.Ed.2d 44. We held that a method-of-execution claim must be brought ...

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