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Hand v. Houk

United States District Court, S.D. Ohio, Eastern Division, Columbus

July 2, 2019

GERALD HAND, Petitioner,
v.
MARC HOUK, Warden, Respondent.

          Michael H. Watson District Judge

          REPORT AND RECOMMENDATIONS

          MICHAEL R. MERZ UNITED STATES MAGISTRATE JUDGE

         This capital habeas corpus case is before the Court on Petitioner Gerald Hand's Motion for Relief from Judgment under Fed.R.Civ.P. 60(b)(6) (ECF No. 182). The Warden opposes the Motion (Memo in Opp., ECF No. 183) and Petitioner has filed a Reply in support (ECF No. 184).

         As a post-judgment matter, the Motion is referred for a report and recommended disposition under 28 U.S.C. § 636(b)(3).

         Because the Motion attacks the integrity of this Court's judgment, rather than raising a new claim for habeas corpus relief, the Motion is properly addressed in this Court, rather than by transfer to the Sixth Circuit as a second or successive habeas application. Gonzalez v. Crosby, 545 U.S. 524, 534-36 (2005).

         Litigation History

         Gerald Hand filed this habeas corpus action in 2007 to obtain relief from his conviction and sentence of death. On January 3, 2014, Judge Beckwith dismissed the Petition but granted a certificate of appealability on some grounds (Judgment, ECF No. 148). The United States Court of Appeals for the Sixth Circuit affirmed, Hand v. Houk, 871 F.3d 390 (6th Cir. 2017), cert. denied sub. nom. Hand v. Shoop, 138 S.Ct. 1593 (2018), and the mandate from the Sixth Circuit issued on October 26, 2017. Since jurisdiction was returned to this Court, Hand has sought authorization for his habeas counsel-specifically, the Office of the Federal Public Defender for the Southern District of Ohio-to appear before and file a motion for relief from judgment in the Delaware County, Ohio Court of Common Pleas (ECF No. 170). The Magistrate Judge has twice recommended that that authorization be denied (ECF Nos. 175, 179) and the motion for authorization remains pending on Petitioner's Objections (ECF Nos. 176, 180). Hand does not presently have a scheduled execution date, but is a Plaintiff in In re: Ohio Execution Protocol Litig., No. 2:11-cv-1016.

         The Instant Motion

         In his present Motion, Hand asserts he is entitled to relief from judgment “because the Criminal Justice Section of the Office of the Ohio Attorney General developed an imputed conflict of interest during these proceedings and should have been disqualified from participating in this case.” (ECF No. 182, PageID 16423).

         The factual basis for the asserted imputed conflict is that attorney Debra Gorrell Wehrle, was Hand's mitigation specialist at his trial in 2003 (Evid. Hrg. Tr., ECF No. 88, PageID 1977). By the time she was deposed in this case on December 9, 2008, and then at the time of the evidentiary hearing in this case in 2010, she was employed by the Ohio Attorney General and working in the Education Section of that Office (Motion, ECF No. 182, PageID 16425, citing Wehrle Dep., ECF No. 58, PageID 1067-68; Evid. Hrg. Tr., ECF No. 88, PageID 1977). By 2012 she was still with the Office of the Attorney General, but working in the Corrections Litigation Unit of the Criminal Justice Section, the same section which includes the Capital Crimes Unit. Id. at nn.2-3.

         Hand asserts his Motion is timely because his present Trial Attorney, Assistant Federal Public Defender Jacob Cairns, “learned that Ms. [Wehrle] had been employed in the Criminal Justice Section on May 21, 2019, while researching Ms. [Wehrle's] litigation history as an attorney.” (ECF No. 182, PageID 16431, n.8.) As a remedy for this undisclosed imputed disqualification, Hand seeks to: (1) have the judgment reopened; (2) have the Office of the Ohio Attorney General disqualified from any further participation in this case; and (3) to excuse Hand's previously adjudicated procedural defaults and adjudicate the merits of the defaulted claims. Id. at PageID 16432.

         The Warden opposes Hand's Motion on the ground it is untimely and Hand has not shown then extraordinary circumstances needed for relief under Fed.R.Civ.P. 60(b)(6). He also attaches Ms. Wehrle's Affidavit (ECF No. 183-1) which shows that she was admitted to the practice of law in Ohio in 1994. Id. at PageID 16440, ¶ 2. In 2003 she was appointed as mitigation specialist in Mr. Hand's capital murder case. Id. at ¶ 3. On April 30, 2007, she was employed as an Assistant Ohio Attorney General in the Education Section. Id. at ¶ 4. While thus employed, she was called as a witness in the evidentiary hearing in this case on February 10, 2010. Id. at ¶ 5. On June 6, 2010, she transferred to the Corrections Unit of the Ohio Attorney General's Office where she served until transferring again to the Healthcare Fraud Section of that Office on August 20, 2017. Id. at ¶ 6.

         Ms. Wehrle avers that she has never had any involvement at all in the Ohio Attorney General's representation of Respondent in this case (Wehrle Aff., ECF No. 183-1, PageID 16441, ¶ 7). Recognizing her professional responsibility as an attorney in this regard, she “did not discuss Mr. Hand's case with the assistant attorney general representing the Respondent, . . .” Id. She attaches a chart showing organization of the OAG Criminal Justice Section in 2010. PageID 16442. She also attaches pages from the transcript of the evidentiary hearing in which she affirmed, on questioning from the Court, that she understood she was bound by the attorney-client communication privilege “in all realms of my life.” (Evid. Hrg. Tr., ECF No. 183-2, PageID 16445).[1]

         Analysis

         General Standard for Relief from Judgment

         Fed.R.Civ.P. 60(b) allows relief from a final judgment on the following bases:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for ...

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