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Raglin v. Mitchell

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

August 13, 2019

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

          Michael R. Barrett District Judge

          SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON RULE 59(E) AND 60 MOTIONS

          Michael R. Merz United States Magistrate Judge

         This case is before the Court on Petitioner's Objections (Doc. No. 325) to the Magistrate Judge's Report and Recommendations (“Report, ” ECF No. 320) recommending denial of Petitioner's Motions to Amend the Judgment (ECF No. 309) and for Relief from Judgment (ECF No. 310). District Judge Barrett has recommitted the case to the Magistrate Judge for reconsideration in light of the Objections (Recommittal Order, ECF No. 326).

         Raglin seeks to reopen or amend the March 22, 2018, judgment in this case so that he can again move to amend his Petition to add allegedly newly ripe lethal injection invalidity claims. His previous motion to that effect (ECF No. 289) was denied on the basis of In re Campbell, 874 F.3d 454 (6th Cir. 2017) (ECF No. 292, reported at Raglin v. Mitchell, 2017 WL 6629102 (S.D. Ohio Dec. 29, 2017).

         Raglin claims that Campbell has been “abrogated” by Bucklew v. Precythe, 139 S.Ct. 1112 (2019). The Report rejected that argument:

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 and hypothetical.

         (ECF No. 320 at PageID 4299.)

         Raglin objects that the Supreme Court's silence on this point does not mean that it did not abrogate Campbell because in Campbell itself the Sixth Circuit held that its prior precedent (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)) was abrogated by Glossip. However, the Campbell court never uses either the word “abrogate” or the word “overrule.” Instead, it says “Glossip held that a Baze challenger [an inmate challenging a method of execution under 42 U.S.C. § 1983] has no claim unless he can identify a constitutional means by which he can be executed. Notice that this closes the final path into habeas court left open by Hill [v. McDonough, 547 U.S. 573 (2006)] and Adams II.” 874 F.3d at 462. The Campbell Court noted that Adams III was decided after Glossip, but, having found Adams's claim procedurally defaulted, still thought a proper method of execution claim could be brought in habeas. The Campbell court reacted:

Notwithstanding the procedural default, the panel proceeded to speculate in dicta about the viability of a psychological-torment claim. Adams III, 826 F.3d at 320. It ultimately found the claim unsupported by the substantive law. Even then, the panel proceeded to discuss-again in dicta-the holding of Adams II in light of Glossip. Id. at 321. It reiterated that "Adams's case is distinguishable from Hill because Adams argues that lethal injection cannot be administered in a constitutional manner, and that his claim 'could render his death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547 U.S. at 580). Therefore, "to the extent that [a petitioner] challenges the constitutionality of lethal injection in general and not a lethal-injection protocol, his claim is cognizable in habeas." Id.
We think this dictum mischaracterizes both Adams II and Glossip. And, of course, dictum in a prior decision-as opposed to a holding-does not bind future panels, including this one. 6th Cir. R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir. 2010) (explaining that statements which are "not necessary to the outcome" are not binding on later panels). The Adams III panel had already concluded that the petitioner's claim was both procedurally defaulted and forfeited. Adams III, 826 F.3d at 320. And although we may choose to excuse forfeiture in an exceptional case, we cannot ignore procedural default absent an express finding of cause and prejudice. Wainwright [v. Sykes], 433 U.S. [72, ] 86-87 [(1977)]. Thus, the statements "necessary" to the decision in Adams III ended when the panel acknowledged the default and forfeiture without any indication that an exception was present. Adams III, 826 F.3d at 320.

874 F.3d at 463-64. Before Adams III but after Glossip, this Court followed Adams I and allowed lethal injection invalidity claims in habeas even from those inmates simultaneously pursuing Baze claims in § 1983. But then we treated Glossip as “upending” that practice. Henderson v. Warden, 136 F.Supp.3d 847, 851 (S.D. Ohio 2015)(Frost, D.J.). Then came Adams III and, at the urging of Petitioner's counsels' firm, [1] we reverted to our practice of allowing those claims in habeas. Then came Campbell.

         In Glossip, the Supreme Court stated that “Hill ‘held that a method-of-execution claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence.'” 135 S.Ct. at 2738. In Henderson the petitioner had characterized that sentence from Glossip as “mere dictum.” Judge Frost disagreed because the sentence was a portion of Glossip necessary to the result and therefore binding. 136 F.Supp.3d at 851, citing Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996). Moreover, even if the sentence were dictum,

[I]t carries with it an important part of the majority's rationale for the result the majority reaches and is thus entitled to greater weight than a stray aside tagged onto a decision. See Seminole Tribe of Florida, 517 U.S. at 67 (quoting Local 28 of Sheet Metal Workers' Int'l Ass'n v. EEOC, 478 U.S. 421, 490, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986)). The unavoidable fact is that a majority of the Supreme Court has now stated in unmistakable language that "[w]e held [in Hill] that a method-of-execution claim must be brought under § 1983 because such a claim does not attack the validity of the prisoner's conviction or death sentence." Glossip, 135 S.Ct. at 2738. Justice Kennedy, the author of Hill, in fact joined the majority in Glossip without writing separately to dispute that characterization of the former case. In light of these circumstances, it is not for this Court or any other lower court to ...

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