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Raglin v. Mitchell

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

May 24, 2018

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

          Michael R. Barrett, District Judge

          REPORT AND RECOMMENDATIONS ON MOTION TO ALTER OR AMEND THE JUDGMENT

          Michael R. Merz, United States Magistrate Judge

         This 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).

         As a post-judgment motion, this matter is deemed referred t the Magistrate Judge for report and recommendations under 28 U.S.C. § 636(b)(3).

         Petitioner 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).

         The 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.

         On 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.

         The 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 127-28 (1995).

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).

         While 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 provides:

         Rule 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. ยง 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 ...

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