United States District Court, S.D. Ohio, Eastern Division, Columbus
ALVA E. CAMPBELL, JR., Petitioner,
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
Execution Date September 13, 2017
District Judge, Walter Herbert Rice
SECOND SUPPLEMENTAL MEMORANDUM OPINION
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
capital habeas corpus case is before the Court on
Petitioner's Objections (“Objections, ” ECF
No. 51) to the Magistrate Judge's Amendment and
Supplement to Second Transfer Order (“Order, ”
ECF No. 50)(reported at 2017 U.S. Dist. LEXIS 36305(S.D. Ohio
Mar. 14, 2017). The Warden has responded (Response, ECF No.
53) and Judge Rice has recommitted the matter for further
analysis by the Magistrate Judge before deciding the appeal
(ECF No. 52).
undisputed that this case is Petitioner's second-in-time
habeas application related to his conviction and sentence of
death for a 1997 murder. His first case was dismissed with
prejudice and that judgment is final. Campbell v.
Bradshaw, 674 F.3d 578 (6th Cir. 2012),
cert den. 133 S.Ct. 527 (2012). He filed the instant
case May 6, 2015.
Second Transfer Order (ECF No. 46), the Magistrate Judge
concluded Campbell's Motion to Amend (ECF No. 37) to add
a claim under Hurst v. Florida, 577 U.S., 136 S.Ct.
616 (2016), was itself a second-or-successive habeas
application, relying on Moreland v. Robinson, 813
F.3d 315, 319 (6th Cir. 2016). Applying the same
logic, Campbell's Motion to Amend to re-plead lethal
injection claims (ECF No. 47) was held to be a
second-or-successive habeas application and the entire case
was again ordered transferred to the Sixth Circuit for a
determination on whether or not it may proceed.
Cognizability of Lethal Injection Claims in Both Habeas
Corpus and Civil Rights (42 U.S.C. 1983: Legal History
Campbell is a plaintiff in In re: Ohio Execution Protocol
Litigation, Case No. 2:11-cv-1016, the § 1983
litigation challenging Ohio's lethal injection protocol.
Like all § 1983 injunctive litigation, it is forward
looking. It seeks to enjoin Ohio from executing Campbell and
others under the current protocol, which was adopted October
7, 2016. That protocol has already been the subject of
extensive litigation, resulting in a preliminary injunction
order enjoining its intended use in the executions of Ronald
Phillips, Raymond Tibbetts, and Gary Otte. In re: Ohio
Execution Protocol Litig (Phillips, Tibbetts, &
Otte), ___ F.Supp.3d ___, 2017 U.S. Dist. LEXIS 11019
(S.D. Ohio Jan 26, 2017)(Merz, M.J.), presently pending on
appeal to the Sixth Circuit.
rights action under § 1983 offers the capital litigant
many advantages over a habeas corpus action. Among other
things, it is not subject to the second-or-successive
limitation or the limits on discovery in habeas corpus.
Because it is forward looking instead of focused on what
happened in the state courts, it is not limited in the
introduction of evidence imposed in habeas by § 2254(d)
as interpreted in Cullen v. Pinholster, 563 U.S. 170
in Nelson v. Campbell, 541 U.S. 637 (2004), that the
Supreme Court first held that a means or method of execution
claim could be brought in a § 1983 case, over the
objection of state officials who insisted that such a claim
had to be brought in habeas corpus and would, in Nelson's
case, have been subject to the second-or-successive
requirement imposed by the Antiterrorism and Effective Death
Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat. 1214)(the
"AEDPA"). The Court unanimously concluded that
Nelson's challenge to the method of execution (there a
vein cut-down procedure) did not challenge his actual death
sentence, it could be brought in a § 1983 action.
v. Taft, Case No. 2:04-cv-1156, a § 1983 action
which is the direct predecessor of Case No. 2:11-cv-1016, was
filed December 8, 2014, and references an earlier filing in
Case No. 2:04-cv-532 on June 10, 2004, less than a month
after Nelson was decided. As consolidated in
2:11-cv-1016, Cooey remains pending. The same
organizations of attorneys who provide representation to
plaintiffs in 2:11-cv-1016 - the Capital Habeas Units of the
Office of the Federal Public Defender for the Southern and
Northern Districts of Ohio and the Ohio Public Defender's
Office - also represent most of the capital habeas corpus
petitioners in this Court. Thus the litigation context
provides maximal opportunities for coordination of strategy.
To this Court's eye, those opportunities are never
missed; if there are internal disagreements among the capital
petitioners' bar, they are never apparent to this Court.
bar has had an apparent strategy for some years to have
parallel habeas and § 1983 actions pending
simultaneously on behalf of the same inmate. Implementation
of this strategy has been supported by the series of
decisions of the Sixth Circuit in Stanley Adams habeas corpus
case from the Northern District of Ohio, Adams v.
Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Adams
v. Bradshaw, 817 F.3d 284 (6th Cir. March 15,
2016); and Adams v. Bradshaw, 826 F.3d 306
(6th Cir. June 13, 2016), referred to herein as
Adams I, Adams II, and Adams III
Adams I the circuit court held, over Ohio's
objection, that a challenge to the method of lethal injection
could be brought in habeas corpus as well as in a § 1983
action. That is to say, availability of the § 1983 cause
of action did not logically imply the absence of a §
2254 cause of action. Attempting to obeyAdams I,
this Court permitted amendments of habeas petitions to add
lethal injection claims and indeed treated those claims as
newly-arising whenever Ohio's lethal injection protocol