United States District Court, S.D. Ohio, Western Division, Cincinnati
District Judge Thomas M. Rose
REPORT AND RECOMMENDATIONS ON APPEAL
Michael R. Merz United States Magistrate Judge
capital habeas corpus case is before the Court on District
Judge Rose's Recommittal Order (ECF No. 246), directing
the Magistrate Judge to reconsider his Decision and Order
Granting Petitioner's Counsel Authorization to Appear in
State Court (ECF No. 236).
November 7, 2016, Petitioner's counsel sought leave to
appear in state court to litigate “a newly-arising
constitutional claim based on Hurst v. Florida, 136
S.Ct. 616 (2016)” (ECF No. 231, PageID 4385). Since
this was a non-dispositive pre-trial motion, it was within
the decisional authority of the assigned Magistrate Judge.
After briefing, the Magistrate Judge granted the Motion (ECF
No. 236). Respondent Warden then appealed to District Judge
Rose, claiming this Court lacked subject matter jurisdiction
to make the authorization because the habeas case was closed
and the appointment was not in pursuit of clemency
proceedings (ECF No. 237). Petitioner filed an extensive
Response (ECF No. 238).
briefing remained in that posture for three months until the
Petitioner filed a Suggestion of Mootness, noting that the
Ohio Supreme Court had denied his Motion (ECF No. 239). See
State v. LaMar, 148 Ohio St.3d 1424 (2017),
cert. den. sub nom. LaMar v. Ohio, 138 S.Ct. 363
Warden responded that the Appeal was not moot because LaMar
had in fact pursued the state court proceeding which the
Warden continues to assert this Court lacked subject matter
jurisdiction to authorize (ECF No. 240). Since then the
Warden has filed additional authority and notice of
LaMar's petition for certiorari to the United States
Supreme Court on his Hurst claim (ECF Nos. 241, 241,
243, 244, 245).
LaMar initially sought this authorization, the Warden opposed
it on grounds of lack of jurisdiction (ECF No. 232, PageID
4462-63), relying on denials of such appointment in Eley
v. Bagley, Case No. 4:02-cv-1994, 2012 WL 1945610 (N.D.
Ohio May 30, 2012)(Boyko, D.J.), and Hill v.
Anderson, Case No. 4:96-cv-795 (N.D. Ohio May 15,
2014)(Adams, D.J.)(unreported; copy at ECF No. 232-1, PageID
4465 et seq.). The Warden distinguished the grants of
authorization this Magistrate Judge had made in Waddy v.
Robinson, Case No. 3:98-cv-084, 2013 WL 3087294 (S.D.
Ohio, June 18, 2013); Gapen v. Bobby, Case No.
3:08-cv-280, 2013 WL 5539557 (S.D. Ohio Oct. 8, 2013); and
Conway v. Houk, Dase No. 3:07-cv-345, 2013 WL
6170601 (S.D. Ohio Nov. 22, 2013), because those
authorizations were made in ongoing habeas cases, whereas
LaMar's habeas case is final.
granting authorization, the Magistrate Judge noted that Judge
Adams' decision in Hill had been overruled by
the Sixth Circuit (Decision, ECF No. 236, PageID 4555, citing
Hill v. Mitchell, Case Nos. 99-4317, 14-3718
(unreported; copy at ECF No. 233-1, PageID 4485). The Sixth
Circuit Order in Hill does not discuss Judge
Adams' decision or the question of subject matter
jurisdiction. The State of Ohio had raised a lack of
jurisdiction defense to the motion to authorize not based on
the fact that there was a final judgment in Hill,
but based on the lack of a certificate of appealability.
(6th Cir. Case No. 99-4317, Doc. No. 299).
Nevertheless, the Sixth Circuit granted the authorization,
implicitly deciding that both it and the District Court had
arguing that the appeal is not moot, the Warden asserts that
LaMar could have rendered it moot by either not filing the
motion in the Ohio Supreme Court or voluntarily dismissing it
after the Warden appealed (Response to Suggestion of
Mootness, ECF No. 240, PageID 4592). Because LaMar did
neither, “his own actions ensured that a controversy
would continue to exist where the Warden's position is
that LaMar was not legally entitled to take the action at
are two difficulties with this argument. First of all, the
Warden allowed the state court authorization to proceed by
not seeking a stay pending appeal. As noted above, a motion
to authorize appearance in state court is a non-dispositive
pre-trial motion on which a Magistrate Judge has authority to
act, rather than make a recommendation. Under S. D. Ohio Civ.
R. 72.3, such a ruling remains effective unless stayed
pending appeal or upon reversal by a District Judge. This
parallels the treatment of preliminary injunctive relief by a
District Judge which remains in effect unless stayed pending
appeal. Although the Warden appealed, he did not seek a stay
from either the Magistrate Judge or District Judge Rose.
the Warden contends “the controversy remains, where
LaMar will undoubtedly use the state litigation that was
terminated against him as some sort of reason to seek some
brand of federal habeas relief.” (Response to
Suggestion of Mootness, ECF No. 240, PageID 4593.) This
argument conflates the question of authorization to counsel
to appear in state court with the question whether the state
court proceeding could be brought at all. Whether LaMar could
properly raise his Hurst claim by motion in the Ohio
Supreme Court was a question for that court to decide under
Ohio law. LaMar could have filed that motion with the
assistance of other counsel or pro se and thereafter used the
result to seek “some brand of federal habeas
relief.” This Court's authorization of counsel to
appear on that motion did not make the motion cognizable in
the Ohio Supreme Court, it merely decided who would represent
LaMar on that motion.
Magistrate Judge concludes the controversy over the
authorization is in fact moot. An order by the District Judge
finding the Magistrate Judge was without jurisdiction to make
the authorization would have no effect on the fact that the
motion was filed and acted on by the Ohio Supreme Court. It
might instruct the Magistrate Judge about the limits of his
authority on § 3599 motions in general, but it would
have no impact on the authorization in this case which has
now been exhausted by completion of the state court
Magistrate Judge accordingly respectfully recommends the