Wogenstahl v. Warden, Chillicothe Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT CINCINNATI

JEFFREY A. WOGENSTAHL,

Petitioner, : Case No. 1:17-cv-298

- vs - District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

Warden,

Chillicothe Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Petitioner’s Motion for Relief from

Judgment Pursuant to Rule 60(b)(6)(ECF No. 58). Respondent opposes the Motion (ECF No. 59)

and Petitioner has filed both a Reply Memorandum in support (ECF No. 60) and a Notice of

Additional Authority (ECF No. 64).

Magistrate Judge Decisional Authority and the Instant Motion

The parties have argued the Motion as one made under Fed.R.Civ.P. 60(b)(6). Motions for

relief from judgment under Rule 60(b), being properly made post-judgment, are not within the

original decisional authority of a Magistrate Judge under Fed.R.Civ.P. 72(a), but rather require a

report and recommended disposition under Fed.R.Civ.P. 72(b)(3). Respondent argues, correctly

the undersigned believes, that a 60(b) motion is not properly made as to an interlocutory order.

That is because there is no judgment in this case from which to grant relief. Rather, Petitioner

seeks an amendment of the Order of Transfer (ECF No. 6) in which the undersigned determined

that this was a second or successive habeas corpus case which required permission from the Sixth

Circuit under 28 U.S.C. § 2244(b) before it could proceed.

When the Transfer Order was entered (May 4, 2017), Petitioner objected that the

Magistrate Judge lacked authority to enter the Transfer Order because it was “dispositive,” the

“functional equivalent of a dismissal for lack of jurisdiction.” (ECF No. 9, PageID 1173, relying

on Vogel v. U.S. Office Products Company, 258 F.3d 509, 514 (6th Cir. 2001)). Judge Rose

overruled those Objections (ECF No. 30) and the transfer was effected.

The Sixth Circuit accepted the transfer. In re: Jeffrey Wogenstahl, 902 F. 3d 621 (6th Cir.

2018)(Cole, Moore, and Gibbons). It held the Petition in this case was indeed second or

successive, denied Wogenstahl’s motion to transfer the case back to this Court, but found he had

presented sufficient evidence to show, prima facie, that he could satisfy the criteria for a second or

successive filing. None of the judges discussed the question of whether a § 2244(b) transfer order

was within the decisional authority of a Magistrate Judge or was instead a dispositive matter.

So far as the undersigned is aware, no judge of the Sixth Circuit nor any District Judge of

this Court has ever held that the transfer question is dispositive. Nevertheless, to avoid entangling

the instant Motion with that question, the Magistrate Judge provides Judge Rose in this Report

with a recommendation on disposition rather than, say, a decision on reconsideration of the

Transfer Order.

Motion for Relief from Judgment under Fed.R.Civ.P. 60(b)(6)

After the case was transferred to it, the Sixth Circuit held:

In the instant case, Wogenstahl’s claims do not fall within any of the

situations that have been recognized under the abuse-of-the-writ

doctrine as making a petition second-in-time but not second or

successive. He is attacking the same state court judgment of

conviction, see King v. Morgan, 807 F.3d 154, 155–57 (6th

Cir.2015); he did not previously raise these claims before a federal

court which then did not adjudicate them on the merits, see In re

Coley, 871 F.3d at 457; and his claims were not unripe at the time

he filed his initial petition because the purported Brady violations

and defense counsel’s alleged ineffectiveness—the predicates

underlying Wogenstahl’s current claims—had already occurred

when he filed his petition, although Wogenstahl was unaware of

these facts, see In re Jones, 652 F.3d at 604–05. Instead,

Wogenstahl’s claims fall within the scenario contemplated by §

2244(b)(2)(B). He filed a previous habeas petition and is now

raising claims he did not raise in his first petition.2 28 U.S.C. §

2244(b)(2). Furthermore, he relies on facts that he only recently

discovered. Id. at § 2244(b)(2)(B)(i). Thus, Wogenstahl’s petition is

both second-in-time and second or successive, and he must therefore

pass through the gatekeeping mechanism of § 2244(b)(2)(B). In re

Coley, 871 F.3d at 457.

902 F.3d at 627-28. Judge Gibbons did not dissent from the holding that the Petition is second or

successive, so the decision on this point was unanimous. Petitioner now argues:

The Sixth Circuit, a Justice of the United States Supreme Court, and

other Circuit Courts of Appeal agree that In re Wogenstahl was

decided incorrectly. This Court should reverse the judgment

transferring the case to the Sixth Circuit and apply the 28 U.S.C. §

2254 standard to Wogenstahl’s habeas petition.

(Motion, ECF No. 58, PageID 2445). This conclusion requires unpacking.

In asserting that “[t]he Sixth Circuit . . . agree[s] In re Wogenstahl was decided incorrectly,

Petitioner relies on Baugh v. Nagy, 2022 U.S. App. LEXIS 27469 (6th Cir. Sept. 30, 2022)(Guy,

Moore, and Clay). Petitioner in that case, like Petitioner here, presented a claim under Brady v.

Maryland, 373 U.S. 83 (1963), that the State had withheld exculpatory evidence. Even though the

State and Baugh agreed his petition was second or successive, the panel decided that question

needed “a closer look.” 2022 U.S. App. LEXIS at *15. They opined:

In Wogenstahl we held that Brady claims are subject to § 2244(b)'s

gatekeeping requirements because the factual predicate of the

claim—the unlawful withholding of evidence—occurs before the

petitioner files his first habeas petition. Id. at 627; see also In re

Jackson, 12 F.4th 604, 608 (6th Cir. 2021). We reasoned that

"[Wogenstahl's] claims were not unripe at the time he filed his initial

petition because the purported Brady violations . . . had already

occurred when he filed his petition, although Wogenstahl was

unaware of these facts." Wogenstahl, 902 F.3d at 627-28. Other

circuits have reached the same conclusion. In re Will, 970 F.3d 536,

540 (5th Cir. 2020) (per curiam) ("Brady claims raised in second-

in-time habeas petitions are successive regardless of whether the

petitioner knew about the alleged suppression when he filed his first

habeas petition."); Brown v. Muniz, 889 F.3d 661, 674 (9th Cir.

2018) (same); Tompkins v. Sec'y, Dep't of Corr., 557 F.3d 1257,

1260 (11th Cir. 2009) (per curiam) (same); but see Douglas v.

Workman, 560 F.3d 1156, 1193 (10th Cir. 2009) (holding that a

prisoner's Brady claim is not subject to § 2244(b) when the

prosecutor purposefully withholds exculpatory evidence.).

Upon further consideration, we respectfully believe that Wogenstahl

was incorrectly decided. Congress's intention in enacting AEDPA

was "to curb the abuse of the statutory writ of habeas corpus." H.R.

Rep. No. 104-518, at 111 (1996) (Conf. Rep.); see also Panetti, 551

U.S. at 945 (noting the legislative purpose of promoting "finality").

But under Wogenstahl, we do not further this purpose. Instead,

Wogenstahl incentivizes prisoners to bring Brady claims without

any evidence or else risk having a potential Brady claim reviewed

under the heightened "second or successive" standards. This system

"pit[s] the petitioner's interest in vigorously presenting the argument

against counsel's interest in preserving their professional

reputation[.]" In re Hanna, 987 F.3d 605, 615 (6th Cir. 2021)

(Moore, J., dissenting).

We find it "illogical" to hold that the abuse of the writ doctrine is

abused when a petitioner seeks vindication for a previously

unknown Brady violation. Storey v. Lumpkin, 142 S. Ct. 2576, 2578,

213 L. Ed. 2d 1136 (2022) (Mem) (Sotomayor, J.). Rather, "[w]here

a prisoner can show that the state purposefully withheld exculpatory

evidence, that prisoner should not be forced to bear the burden of

section 2244, which is meant to protect against the prisoner himself

withholding such information or intentionally prolonging the

litigation." Workman v. Bell, 227 F.3d 331, 335 (6th Cir. 2000) (en

banc) (Merritt, J., dissenting). In fact, Brady claims seem to fall

perfectly within the realm of claims that should not be considered

"second or successive."

Although several other circuits have reached the same conclusion

that we did in Wogenstahl, we likewise are not alone in second-

guessing whether such holding was correct. See, e.g., Scott v. United

States, 890 F.3d 1239, 1243 (11th Cir. 2018) ("Though we have

great respect for our colleagues, we think Tompkins got it wrong:

Tompkins's rule eliminates the sole fair opportunity for these

petitioners to obtain relief."); Gage v. Chappell, 793 F.3d 1159,

1165 (9th Cir. 2015) ("We acknowledge that Gage's argument for

exempting his Brady claim from the § 2244(b)(2) requirements has

some merit. . . . But as a three-judge panel, we are bound to follow

[circuit precedent]."); Long v. Hooks, 972 F.3d 442, 487 (4th Cir.

2020) (Wynn, J., concurring) (expressing doubt that Brady claims

should be subjected to § 2244(b)'s gatekeeping mechanism, but

ultimately following circuit precedent that held § 2244(b) applies).

Unfortunately, as ill-guided as Wogenstahl may be, it remains the

law of our circuit, Salmi v. Sec'y of Health & Human Servs., 774

F.2d 685, 689 (6th Cir. 1985), so we must hold that Baugh's petition

alleging a Brady violation is "second or successive."

Id. at *15-19. Because the parties in Baugh had agreed his petition was second or successive, the

majority opinion is dictum, a statement not necessary to the outcome. Statements which are "not

necessary to the outcome" are not binding on later panels. United States v. Turner, 602 F.3d 778,

785-86 (6th Cir. 2010). Moreover, Wogenstahl is a published opinion of the circuit court. Absent

a contrary Supreme Court decision or an en banc ruling by the Sixth Circuit, it remains binding

throughout the circuit, particularly in the case in which it was handed down. “[T]he paper of

unpublished decisions cannot escape the scissors of published decisions on point.” Keahey v.

Marquis, 978 F.3d 474, 478 (6th Cir. 2020)(Sutton, J.).

It is well established that Rule 60(b)(6) is not to be used as a substitute for appeal. Polites

v. United States, 364 U.S. 426 (1960); Ackerman v. United States, 340 U.S. 193 (1950). Relief

should be granted under Rule 60(b)(6) only in unusual circumstances where principles of equity

mandate relief, Olle v. Henry & Wright Corp., 910 F.2d 357, 365 (6th Cir. 1990), and the district

court’s discretion under 60(b)(6) is particularly broad. Johnson v. Dellatifa, 357 F.3d 539 (6th Cir.

2004); McDowell v. Dynamics Corp., 931 F.2d 380, 383 (6th Cir. 1991); Hopper v. Euclid Manor

Nursing Home, Inc., 867 F.2d 291, 294 (6th Cir. 1989).

Rule 60(b)(6) is a "catchall" provision that "vests courts with a

deep reservoir of equitable power to vacate judgments 'to achieve

substantial justice' in the most 'unusual and extreme situations."'

Zagorski v. Mays, 907 F.3d 901, 904 (6th Cir. 2018) (quoting Stokes

v. Williams, 475 F.3d 732, 735 (6th Cir. 2007)). The Sixth Circuit

has made clear that Rule 60(b)(6) "applies only in exceptional or

extraordinary circumstances where principles of equity mandate

relief." West v. Carpenter, 790 F .3d 693, 696-97 (6th Cir. 2015)

(citing McGuire v. Warden, Chillicothe Corr. Inst., 738 F.3d

741,750 (6th Cir. 2013)). In other words, Rule 60(b)(6) is to be used

rarely-especially in habeas corpus. See Gonzalez v. Crosby, 545 U.S.

524, 535 (2005).

Hand v. Houk, 2020 U.S. Dist. LEXIS 41511 *3 (S.D. Ohio Mar. 10, 2020)(Watson, J.).

A change in decisional law is usually not, by itself, an extraordinary circumstance.

Landrum v. Anderson, 813 F.3d 330 (6th Cir. 2016); Wright v. Warden, 793 F.3d 670 (6th Cir.

2015); Henness v. Bagley, 766 F.3d 550 (6th Cir. 2014); McGuire v. Warden, 738 F.3d 741 (6th

Cir. 2013), citing Stokes v. Williams, 475 F.3d 732, 735 (6th Cir. 2007); Agostini v. Felton, 521

U.S. 203, 239 (1997); Blue Diamond Coal Co. v. Trs. of the UMWA Combined Benefit Fund, 249

F.3d 519, 524 (6th Cir. 2001).

What has occurred in this case is not a change in the decisional law, but a change in what

some judges believe the decisional law should be. Justice Sotomayor concurred in the denial of

certiorari in Storey v. Lumpkin, 142 S. Ct. 2576 (2022), but wrote separately to “offer a cautionary

tale for those Courts of Appeals that have yet to define what constitutes a restricted ‘second or

successive habeas corpus application,’ 28 U.S. C. § 2244(b)(2), in the context of prosecutorial

misconduct.” She criticized the approach taken by the Sixth Circuit on transfer in this case, but

was not in a position to enact what she believed the law should be.

As additional authority, Petitioner relies on Jn re Hill, 2022 U.S. App. LEXIS 24442 □□

Cir. Aug. 30, 2022). There, however, the panel distinguished Wogenstahl in terms of when the

claim in question accrued.

Under the holding in Wogenstahl, the petition in this case is second or successive.

Reaching that conclusion does not require interpreting the language of Wogenstahl at all because

the circuit court has already applied it. Regardless of whether a different reading of 28 U.S.C. §

2244 would better accord with the purposes of the AEDPA, this Court is bound by the reading

given that statute by the Sixth Circuit in this very case.

The Motion for Relief from Judgment should be DENIED.

March 15, 2023.

NOTICE REGARDING OBJECTIONS

Pursuant 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. A party may respond

to another party’s objections within fourteen days after being served with a copy thereof. Failure

to make objections in accordance with this procedure may forfeit rights on appeal. #

s/ Michael R. Merz

United States Magistrate Judge