Opinion
Case No. C-3-96-163.
February 5, 2010
ORDER
This case is before the Court on remand from the United States Court of Appeals for the Sixth Circuit pursuant to Fed.R.App.P. 12.1(b) (Doc. No. 288). On Petitioner's Motion to Amend (Doc. No. 284), the Magistrate Judge entered a Provisional Decision and Order (Doc. No. 287) indicating that, if the Court of Appeals permitted by remand, this Court "would vacate its judgment, permit the proposed amendment, and adjudicate Petitioner's Atkins claim." Id. at 2-3.
The Court of Appeals has reminded the parties and this Court that it retains jurisdiction of the appeals pursuant to Fed.R.App.P. 12.1(b) and did not dismiss the appeals. Having considered that fact and the status of this matter, it appears to the Court appropriate to permit Petitioner to raise his Atkins claim by a supplemental, rather than an amended, petition. The Atkins claim arose after final judgment was entered in this case. Per Fed.R.Civ.P. 15(d), a supplemental pleading is the proper way to raise a claim which arises after an initial pleading is filed.
Therefore, consistent with the Remand Order and Fed.R.Civ.P. 15, Petitioner may, not later than March 1, 2010, file a supplemental petition in habeas corpus raising the Atkins claim which he has now exhausted in the Ohio courts. This Court's prior final judgment in the case, which has been appealed and cross-appealed, remains final.