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Raglin v. Mitchell

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

June 10, 2019

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

          District Judge Michael R. Barrett

          REPORT AND RECOMMENDATIONS ON PETITIONER'S SECOND MOTION TO ALTER OR AMEND THE JUDGMENT AND MOTION FOR RELIEF FROM JUDGMENT

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE.

         The Court entered final judgment in this case on March 22, 2018, (Decision and Order, ECF No. 295; Clerk's Judgment ECF No. 296) and modified that judgment on March 22, 2019, when District Judge Michael R. Barrett expanded the Certificate of Appealability to include the issue of whether the Court erred in concluding that his method-of-execution claims are not cognizable in habeas corpus (Order, ECF No. 308).

         On April 16, 2019, Raglin filed his Second Motion to Alter or Amend Judgment under Fed.R.Civ.P. 59(e) (“59(e) Motion, ” ECF No. 309). On April 19, 2019, Raglin filed a Motion for Relief from Judgment under Fed.R.Civ.P. 60(b) (“60(b) Motion, ” ECF No. 310) and a Notice of Appeal of the final judgment as modified (ECF No. 311, citing ECF Nos. 295-96, 308). The Warden has filed a memorandum in opposition to both the 59(e) and 60(b) Motions (ECF No. 316), to which Raglin has filed a Reply (ECF No. 319).

         Because these are post-judgment motions, they are deemed referred to the Magistrate Judge under 28 U.S.C. § 636(b)(3), requiring a recommendation rather than a decision in the first instance.

         Analysis

         1. This Court has jurisdiction

         In her memorandum contra, the Warden argues “that the district court has jurisdiction to consider a Rule 60(b) motion when a notice of appeal has not been timely filed. However, the district court cannot issue a final ruling on the motion until after the appeal has been dismissed for lack of jurisdiction.” (ECF No. 316, PageID 4247, citing Fed.R.Civ.P. 62.1(a); United States v. Garcia-Robles, 562 F.3d 763 (6th Cir. 2009); FHC Equities, L.L.C. v. MBL Life Assur. Corp., 188 F.3d 678, 683 (6th Cir. 1999). While the Warden has filed a Motion to Dismiss the Appeal (No. 19-3361, ECF No. 7), she argues that this Court cannot consider either the 59(e) or 60(b) Motion until and unless the United States Court of Appeals for the Sixth Circuit grants her Motion (Memo. in Opp., ECF No. 316, PageID 4247-48), which is still pending.

         The Warden's argument ignores the plain language of Appellate Rule 4(a)(4)(A) and Slep-Tone Entm't Corp. v. Karaoke Kandy Store, Inc., in which the Sixth Circuit held a timely motion contemplated under that Rule “render[s] a notice of appeal effective only after the district court enters an order disposing of such motion. 782 F.3d 712, 716 (6th Cir. 2015) (internal quotation marks omitted), citing Kusens v. Pascal Co., 448 F.3d 349, 360 (6th Cir. 2006); Fed.R.App.P. 4(a)(4)(A). In effect, “the notice of appeal becomes temporarily ineffective.” Id. at 717-18 (internal quotation marks omitted), quoting 16A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction § 3950.4 (4th ed. 2014). Motions under Civil Rules 59 and 60 are among those that tolls the time for filing a notice of appeal, Fed.R.App.P. 4(a)(4)(A)(iv-vi), and:

If a party files a notice of appeal after the court announces or enters a judgment- but before it disposes of any motion listed in Rule 4(a)(4)(A)-the notice becomes effective to appeal a judgment or order, in whole or in part, when the order disposing of the last such remaining motion is entered.

Fed.R.App.P. 4(a)(4)(B)(i). As there is no dispute that Raglin's 59(e) and 60(b) Motions were timely filed within twenty-eight days of the modified judgment's being entered, jurisdiction currently rests with this Court, rather than the Sixth Circuit. Thus, the Court may properly adjudicate the merits of the 59(e) and 60(b) Motions.

         2. Bucklew is not grounds for Rule 59(e) Relief

         Raglin notes that he had “previously requested leave to file an amended petition raising newly ripe lethal injection claims[, ]” which this Court did not grant because it read (correctly) the Sixth Circuit case of In re Campbell as precluding method-of-execution claims in habeas corpus and requiring such claims to be brought under 42 U.S.C. § 1983 (59(e) Motion, ECF No. 309, PageID 4208, citing In re Campbell, 874 F.3d 454, 462 (6th Cir. 2017); Raglin v. Mitchell, No. 1:00-cv-767, 2017 WL 6629102 (S.D. Ohio Dec. 29, 2017) (Merz, Mag. J.). In so holding, Campbell differed from Adams v. Bradshaw (Adams I), 644 F.3d 481, 483 (6th Cir. 2011), and Adams v. Bradshaw (Adams III), 826 F.3d 306, 321 (6th Cir. 2016), which had not barred method-of-execution claims from being raised in habeas. Id. at PageID 4208-09.[1] Raglin cites the Supreme Court's recent decision in Bucklew v. Precythe, in which that Court stated that “existing state law might be relevant to determining the proper procedural vehicle for the inmate's claim.” 139 S.Ct. 1112, 1128 (2019). For example, the Bucklew Court noted, “if the relief sought in a 42 U.S.C. § 1983 action would ‘foreclose the State from implementing the [inmate's] sentence under present law, '” then “‘recharacterizing a complaint as an action for habeas corpus might be proper[.]'” Id. (brackets in original), quoting Hill v. McDonough, 547 U.S. 573, 582, 583 (2006). Raglin argues that, through this language, Bucklew abrogated Campbell, essentially returning Sixth Circuit law to its pre-Campbell status. That intervening change in law, he claims, is sufficient cause to grant the motion. (59(e) Motion, ECF No. 309, PageID 4210-11, citing Campbell, 874 F.3d at 463-64; Adams III, 826 F.3d at 321; Adams I, 644 F.3d at 483; Leisure Caviar v. United States Fish & Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010)).

         Bucklew did not mention Campbell or any other case in which a sister circuit may have held that method of execution claims were not cognizable in habeas, as that issue was not considered or ruled on by the Court; after all, “Bucklew filed this action under 42 U.S.C. § 1983[.]” Bucklew v. Precythe, 883 F.3d 1087, 1089 (8th Cir. 2018). Further, the portion of Bucklew quoted by Raglin is the only reference to habeas law in the entire opinion. The language used- “recharacterizing . . . as an action for habeas corpus might be proper” and “existing state law might be relevant[, ]” Bucklew, 139 S.Ct. at 1128 (internal quotation marks and citation and omitted, emphasis added)-is conditional ...


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