United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Barrett District Judge
SUPPLEMENTAL 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 the
Warden's Objections (ECF No. 302) to the Magistrate
Judge's Report and Recommendations (ECF No. 301)
recommending that the Court grant Petitioner's Motion to
Amend the Judgment by expanding the certificate of
appealability (ECF No. 297). District Judge Barrett has
recommitted the matter for reconsideration in light of the
Objections (ECF No. 303), and Petitioner has responded to the
Objections (ECF No. 4).
Petitioner's claims in this case were dealt with on the
merits in Judge Barrett's Opinion and order of September
29, 2013 (ECF No. 198), which also dealt with the certificate
of appealability question for the then-pending claims.
However, final resolution of the case was delayed by the
controversy, involving this and other capital habeas cases,
of whether lethal injection invalidity claims could be heard
in habeas as well as in the 42 U.S.C. § 1983 case
challenging methods of execution, In re: Ohio Execution
Protocol Litig., No. 2:11-cv-1016, in which Raglin is a
plaintiff. Once that controversy was settled by 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), this Court denied leave to amend
to add lethal injection invalidity claims (R&R, ECF No.
287; adopted ECF No. 295).
the Magistrate Judge's Report and Recommendations nor the
adoption Order discussed whether a certificate of
appealability should be granted on the exclusion of lethal
injection invalidity grounds. Petitioner moved to expand the
certificate to include that question. Because judgment had
already been entered, Petitioner had to use a procedural
vehicle that could result in an amendment of the judgment and
chose Fed.R.Civ.P. 59(e).
Magistrate Judge found Rule 59(e) was an appropriate
procedural vehicle and the question on which a certificate
was sought was debatable among jurists of reason, given Judge
Moore's dissent in Campbell and the contrary
opinions of other Sixth Circuit judges in Adams v.
Bradshaw, 826 F.3d 306 (6th Cir. 2016),
cert. denied sub. nom. Adams v. Jenkins, 137 S.Ct.
814, 196 L.Ed.2d 60 (Jan. 17, 2017). The undersigned had
recommended a certificate of appealability on the same
question in Bays v. Warden, 2017 WL 6035231 (S.D.
Ohio Dec. 6, 2017), adopted 2017 WL 6731493 (S.D. Ohio Dec.
29, 2017), and noted that stare decisis was also an
appropriate basis for certifying the question in this case
(ECF No. 301, PageID 4178).
Warden does not argue the merits of the appealability
question either in her original Memorandum in Opposition (ECF
No. 209) or her Objections (ECF No. 302). Thus there is no
dispute between the parties about whether the cognizability
of lethal injection claims in habeas corpus is debatable
among jurists of reason. Instead, the Warden objects only to
the method of getting that question before the circuit court.
Warden cites no authority in point for the proposition that a
Rule 59(e) motion cannot be used to correct an omission in a
judgment on an appealability question. Her citations from
other contexts make little procedural sense in this context.
Congress enacted the AEDPA, it imposed the certificate of
appealability requirement on unsuccessful habeas applicants
and made its issuance the work of the circuit courts. See 28
U.S.C. § 2253(c)(1): “Unless a circuit justice or
judge issues a certificate of appealability . . . .”
The circuit courts of appeals, however, made quick work of
what would appear to be the plain language of that statute by
declaring that the certificate of appealability decision
would be made in the first instance by the district courts.
Kincade v. Sparkman, 117 F.3d 949 (6th
Cir. 1997), decided within a year of AEDPA's adoption.
true, as Respondent notes (ECF No. 302, PageID 4183), that a
district court decision to grant or deny a certificate of
appealability is not itself appealable. Sims v. United
States, 244 F.3d 509 (6th Cir. 2001). Because
of that, a habeas appellant can move to grant or expand a
certificate of appealability in circuit court itself.
Id. But the Sims court did not hold that
that was the only available remedy. After Sims, the
Supreme Court codified the preference for initial district
court decision of the appealability question by amending
Habeas Rule 11 to provide district courts “must”
decide the appealability question at the time of a final
adverse order. This Court did not do that in the final order
in this case. Nothing prevents us from correcting that
omission by granting the Motion to Amend.
the Magistrate Judge adheres to his prior recommendation that
the certificate of appealability in this case be expanded to
include the question whether this Court was correct in
denying Petitioner leave to amend to add lethal injection
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within fourteen days after being served with
this Report and Recommendations. Such objections shall
specify the portions of the Report objected to and shall be
accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in
whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all
parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party's
objections within fourteen days after being served with a