United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Barrett, District Judge
REPORT AND RECOMMENDATIONS ON MOTION TO ALTER OR
AMEND THE JUDGMENT
Michael R. Merz, United States Magistrate Judge
capital habeas corpus case is before the Court on
Petitioner's Motion to Alter or Amend the Judgment (ECF
No. 297). The Warden opposes the Motion (ECF No. 209) and
Petitioner has filed a Reply in support (ECF No. 299).
post-judgment motion, this matter is deemed referred t the
Magistrate Judge for report and recommendations under 28
U.S.C. § 636(b)(3).
requests that the Court grant him a certificate of
appealability “with respect to the denial of his motion
to amend to include lethal injection claims.” (ECF No.
297, PageID 4155.) The Motion is brought under Fed.R.Civ.P.
59(e). Petitioner asserts that the failure of the Court to
address a claim that is properly before it is a permissible
basis for seeking relief under Rule 59(e).
Warden argues that this is not a proper subject for Rule
59(e) treatment, but should instead have been brought under
Rule 11(a) of the Rules Governing (Memo in Opp., ECF No.
298). The Warden reminds the Court that it previously dealt
with certificate of appealability questions in Judge
Barrett's Order and Opinion of September 29, 2013 (ECF
No. 198, PageID 2357-67). However, no judgment was entered on
that Order. Rather, Judge Barrett gave Petitioner two weeks
thereafter to file his Second Amended Petition pleading his
Thirty-Ninth and Fortieth Grounds for Relief which were
Eighth Amendment and Equal Protection Clause claims directed
to Ohio's lethal injection protocol. Id. at
PageID 2367. There ensued several years of to-and-fro, in
this and other capital habeas cases in this Court, over
whether method of execution claims were going to be
cognizable in habeas corpus.
November 13, 2017, the Magistrate Judge denied
Petitioner's most recent motion to amend in light of
In re Campbell, 874 F.3d 454 (6th Cir.
2017), cert. den. sub nom. Campbell v. Jenkins, 138
S.Ct. 466, 199 L.Ed.2d 350 (2017)(Decision and Order, ECF No.
287). Objections to this Decision were overruled by Judge
Barrett on March 22, 2018, resulting in the entry of judgment
(Order, ECF No. 295, Clerk's Judgment, ECF No. 296).
Neither the Magistrate Judge's Decision nor that of
District Judge Barrett discussed whether a certificate of
appealability should be issued on the claims sought to be
added by amendment.
first time Raglin expressly sought a certificate of
appealability on the lethal injection invalidity grounds was
in his “Objections to and Appeal from the Magistrate
Judge's December 29, 2017[, ] Supplemental Opinion on
Motion to Amend” (ECF No. 293, PageID 4142).
Motions to alter or amend judgment may be granted if there is
a clear error of law, see Sault Ste. Marie Tribe,
146 F.3d at 374, newly discovered evidence, see id.,
an intervening change in controlling law, Collison v.
International Chem. Workers Union, Local 217, 34 F.3d
233, 236 (4th Cir. 1994); Hayes v. Douglas Dynamics,
Inc., 8 F.3d 88, 90-91 n.3 (1st Cir. 1993); School
District No. 1J v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th
Cir. 1993), or to prevent manifest injustice. Davis,
912 F.2d at 133; Collison, 34 F.3d at 236;
Hayes, 8 F.3d at 90-91 n.3. See also North River
Ins. Co. v. Cigna Reinsurance Co., 52 F.3d 1194, 1218
(3d Cir. 1995).
To constitute "newly discovered evidence, " the
evidence must have been previously unavailable. See
ACandS, 5 F.3d at 1263; Javetz v. Board of Control,
Grand Valley State Univ. 903 F.Supp. 1181, 1191 (W.D.
Mich. 1995)(and cases cited therein); Charles A. Wright, 11
Federal Practice and Procedure § 2810.1 at
Gencorp, Inc. v. American Int'l Underwriters,
178 F.3d 804, 834 (6th Cir. 1999), accord,
Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538,
551-52 (6th Cir. 2011), quoting Leisure
Caviar, LLC v. United States Fish & Wildlife
Serv., 616 F.3d 612, 615 (6th Cir. 2010).
Petitioner's Motion does not fit neatly within the
Gencorp standard, it does point out an omission from
the final judgment which this Court has authority to remedy.
Rule 11 of the Rules Governing § 2254 Proceedings
11. Certificate of Appealability; Time to Appeal
(a) Certificate of Appealability. The
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant. Before entering the final order, the court may
direct the parties to submit arguments on whether a
certificate should issue. If the court issues a certificate,
the court must state the specific issue or issues that
satisfy the showing required by 28 U.S.C. § 2253(c)(2).
If the court denies a certificate, the parties may not appeal
the denial but may seek a certificate from the court of