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IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION AT COLUMBUS

LAWRENCE LANDRUM, 

Petitioner, : Case No. 2:12-cv-859 

- vs - District Judge Thomas M. Rose 

Magistrate Judge Michael R. Merz 

NORMAN ROBINSON, Warden, 

 Chillicothe Correctional Institution, 

 : 

 Respondent. 

 SUPPLEMENTAL OPINION ON RECOMMITTAL 

 

 More than thirty years ago, on September 19, 1985, Lawrence Landrum and Grant 

Swackhammer murdered Harold White, Sr., during a burglary of White’s apartment. Landrum v. 

Mitchell, 625 F.3d 905, 909-912 (6th Cir. 2010), quoting State v. Landrum, 53 Ohio St. 3d 107 

(1990). On Landrum’s first habeas petition, this Court granted relief but the Sixth Circuit 

reversed. Landrum v. Anderson, 2005 U.S. Dist. LEXIS 41846 (S.D. Ohio 2005), adopted by 

Landrum v. Anderson, 2006 U.S. Dist. LEXIS 27510 (S.D. 2006), reversed in part by Landrum 

v. Mitchell, 625 F.3d 905 (6th Cir. 2010). After litigation on remand, Landrum’s first petition is 

now back before the Sixth Circuit in its Case No. 14-3591. 

 While Landrum’s first case was pending before this Court on remand, his counsel1

 filed 

this second habeas corpus case on October 3, 2012 (ECF No. 4). 

 

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 In both cases Landrum is represented by Gerald Simmons of the Thompson Hine firm and Assistant State Public 

Defender Randall Porter. 

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First Post-Glossip Analysis 

 Following the Supreme Court’s late June decision in Glossip v. Gross, 576 U.S. ___, 135 

S. Ct. 2726, 192 L. Ed. 2d 761 (2015), Respondent filed a Motion to Dismiss (ECF No. 15) 

predicated on Glossip’s explanation of the Supreme Court’s decision in Hill v. McDonough, 547 

U. S. 573 (2006), the effect of Glossip on the Sixth Circuit’s decision in Adams v. Bradshaw, 644 

F.3d 481 (6th Cir. 2011), and this Court’s broad reading of Adams in a number of capital cases. 

 The Magistrate Judge analyzed Glossip’s impact in a Report and Recommendations filed 

September 2, 2015 (ECF No. 19) which concluded Landrum’s claims in this case were not pled 

with sufficient clarity to distinguish them from the claims he makes in the parallel § 1983 case, 

In re Ohio Lethal Injection Protocol, Case No. 2:11-cv-1016. The Magistrate Judge 

recommended the original Petition be dismissed without prejudice, but granted Landrum leave to 

move to amend by September 15, 2015 (ECF No. 19, PageID 261). 

 The same Report discussed an issue not raised by the parties, to wit, whether the Petition 

was a second-or-successive petition on which Landrum would need circuit court permission to 

proceed. The Magistrate Judge raised the issue sua sponte because it is jurisdictional under 

Burton v. Stewart, 549 U.S. 147 (2007). The Report concluded by requiring Landrum to address 

this issue if he moved to amend (ECF No. 19, PageID 262). 

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Landrum’s Counsel’s Responses 

Landrum’s counsel sought a thirty-day extension to move to amend and a separate thirtyday extension to file objections (ECF Nos. 20, 21). This would have resulted in disconnecting 

the objections from the motion to amend by creating different due dates. The Magistrate Judge 

therefore granted the longer extension to October 21, 2015, for both filings, but found the motion 

for the shorter extension moot. 

 Instead of filing a motion to amend and objections together, counsel filed the Objections 

on October 21, 2015 (ECF No. 22), but did not file a Motion to Amend until December 7, 2015 

(ECF No. 31). Judge Rose recommitted the case in light of the Objections (ECF No. 23). 

Second Post-Glossip Analysis 

 On recommittal, the Magistrate Judge noted that no motion to amend had been filed by 

the date set (October 21, 2015) and concluded “Landrum . . . has apparently elected to stand on 

the sufficiency of his original Petition.” (Supplemental Report, ECF No. 24, PageID 284.) The 

Supplemental Report again analyzed the impact of Glossip in light of the Objections, but 

withdrew the recommendation to dismiss the Petition without prejudice in light of its conclusion 

that the Petition was second or successive and was required to be transferred to the Sixth Circuit 

for a determination on whether Landrum could proceed. Id. at PageID 294. 

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Landrum’s Counsel’s Pending Objections 

 Landrum’s counsel next responded with the Objections that are now pending before the 

Court (ECF No. 27). Judge Rose has recommitted the case (ECF No. 28) and the Warden has 

responded to the Objections (ECF No. 29). 

 Counsel first objects to being taken to task for not moving to amend (Objections, ECF 

No. 27, PageID 304-05). They say they were of two minds about whether to object or move to 

amend and sought separate extensions of time because the Clerk told them the motions had to be 

separate. Id. at PageID 304, n. 1. They somehow interpreted the notation order finding moot the 

extension on moving to amend as a denial. If it were a denial, how do counsel infer from that 

permission to file for leave to amend on December 7, 2015? In other words, how does a denial 

become a grant of a six-week extension? 

 Counsel’s Fifth Objection is to the Magistrate Judge’s conclusion that his original 

Petition does not state claims cognizable in habeas corpus (ECF No. 27, PageID 307). That 

objection is premature since the Report and Recommendations reaching that conclusion has been 

withdrawn (ECF No. 24, PageID 294). 

 Counsel’s Sixth Objection is that “[o]n remand, the Magistrate Judge did not grant 

Landrum an opportunity to address the successor/jurisdictional issue.” (ECF No. 27, PageID 

308.) The issue was addressed at length in the original Report (ECF No. 19, PageID 257-61). 

Instead of responding to the substance of that analysis, Landrum’s counsel objected “[t]he 

Magistrate Judge erred when he sua sponte raised the statute of limitations and successor petition 

defenses without providing Landrum any opportunity to address the defenses.” (ECF No. 22, 

PageID 277.) In the Supplemental Report, the Magistrate Judge pointed out that he had never 

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raised any statute of limitations defense and that he had expected Landrum’s counsel to raise 

whatever substantive objections they had in their Objections to the Report (ECF No. 24, PageID 

291-94). The question whether the Magistrate Judge should have created, without request, some 

separate additional opportunity for briefing this issue is rendered moot by counsel’s having 

argued the merits as their Seventh Objection (ECF No. 27, PageID 309). 

 The position taken on the merits in the Seventh Objection adds nothing to prior 

arguments on this point and is unpersuasive for reasons already given. 

Conclusion 

 On October 28, 2015, the Magistrate Judge ordered this case transferred to the Sixth 

Circuit for a determination of whether it could proceed despite being a second or successive 

petition.2

 The transfer was stayed pending Judge Rose’s decision on any objections. That stay is 

continued pending any review of this Supplemental Opinion. 

 Neither party has objected to the recommendation that consideration of cognizability be 

delayed pending Sixth Circuit action on the second or successive question. Landrum merely 

incorporates his prior Objections on cognizability (ECF No. 27, PageID 306) and the Warden 

restates his own arguments on that point (Response, ECF No. 29, PageID PageID 316-17). That 

is, both parties have restated their substantive positions on cognizability, but neither objects to 

 

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 Landrum’s counsel read the October 28th filing as including a recommendation that the case be transferred. As its 

caption displays, it instead includes an order for transfer. 

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postponing a decision on that question, which is what the Supplemental Report recommends. 

December 16, 2015. 

 s/ Michael R. Merz

 United States Magistrate Judge 

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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). 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 copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

 

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