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Campbell v. Jenkins

United States District Court, S.D. Ohio, Eastern Division, Columbus

March 31, 2017

ALVA E. CAMPBELL, JR., Petitioner,
v.
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

         This 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).

         It is 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.

         In the 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.

         Analysis

         I. Cognizability of Lethal Injection Claims in Both Habeas Corpus and Civil Rights (42 U.S.C. 1983: Legal History

         Alva 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.

         A civil 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 (2011).

         It was 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.

         Cooey 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.

         Petitioners' 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 respectively.

         In 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 obey[1]Adams 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 was ...


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