United States District Court, S.D. Ohio, Western Division, Cincinnati
District Judge, Thomas M. Rose
MEMORANDUM OPINION AND TRANSFER ORDER
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
capital habeas corpus case is before the Court on
Petitioner's Renewed Motion for Leave to File a Second
Amended and Supplemental Petition for Writ of Habeas Corpus
(ECF No. 100). The Warden opposes the Motion and moves
instead for transfer of this case to the Sixth Circuit Court
of Appeals as a second-or-successive habeas application (ECF
No. 101). Petitioner has filed a Reply in support (ECF No.
Renewed Motion, Petitioner purports to
fully incorporate his Renewed Motion for Leave to Amend
(ECF No. 65), his Reply in Support of that motion (ECF No.
67), his first Supplemental Brief (ECF No. 75), his Second
Supplemental Brief (ECF No. 80), and the arguments asserted
in his reply memorandum (ECF No. 83) that was subsequently
struck for being filed without leave.
(ECF No. 100 at PageID 2359-60). Nothing in the Local Rules
of this Court or the Federal Rules of Civil Procedure
authorizes a party to compel this Court to review again
hundreds of pages of dense argument made earlier in the case
in different litigation contexts and the Court refuses to do
Kenneth Smith was convicted of the May 12, 1995, murders of
Lewis and Ruth Ray and sentenced to death. His conviction was
affirmed on direct appeal. State v. Smith, 80 Ohio
St.3d 89 (1997). He first petitioned this Court for a writ of
habeas corpus on October 14, 1999. Smith v.
Mitchell, Case No. 1:99-cv-832. Final judgment
dismissing that first petition with prejudice was entered
August 15, 2005. This Court's judgment was then affirmed.
Smith v. Mitchell, 567 F.3d 246 (6th Cir.
2009), cert den., 558 U.S. 1052 (2009).
filed the instant case, his second-in-time habeas
application, on March 9, 2012 (ECF No. 2). The Petition
contains three grounds for relief, all attacking Ohio's
lethal injection protocol. Recognizing that this
second-in-time Petition might be second-or-successive, the
Magistrate Judge transferred the case to the Sixth Circuit so
that that court might decide the second-or-successive
question and then decide if it would grant permission for
Smith to proceed. Without questioning the authority of a
Magistrate Judge to enter a transfer order, the circuit court
held that district courts must decide the
second-or-successive question in the first instance. In
re: Kenneth Smith, 690 F.3d 809 (6th Cir.
2012), see also In re Sheppard, 2012 U.S. App. LEXIS
13709 (6th Cir. May 25, 2012).
remand the Magistrate Judge recommended finding the Petition
was not second-or-successive based on his understanding of
Adams I (See infra at page 4)(Report and
Recommendations, ECF No. 11, adopted ECF No. 20). On June 15,
2015, Smith filed an Amended Petition, this time pleading
eleven grounds for relief, all directed at Ohio's lethal
injection protocol (ECF No. 50). On September 4, 2015,
Petitioner moved to amend again (ECF No. 60). On April 27,
2016, the motion to amend was denied without prejudice to its
renewal within thirty days of the mandate in Adams v.
Bradshaw, a habeas corpus case from the Northern
District of Ohio then pending on appeal to the Sixth Circuit.
It was hoped that the circuit court decision in that case
would clarify circuit precedent on the filing of lethal
injection claims in habeas in light of Glossip v.
Gross, 135 S.Ct. 2726 (2015). The instant motion was
filed pursuant to that schedule.
Smith is a plaintiff in In re: Ohio Execution Protocol
Litig., Case No. 2:11-cv-1016. It seeks to enjoin Ohio
from executing Smith and most other Ohio death row inmates
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), 2017 U.S. Dist. LEXIS 11019 (S.D. Ohio Jan 26,
2017)(Merz, M.J.), presently pending on appeal to the Sixth
rights action under 28 U.S.C. § 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
before the Antiterrorism and Effective Death Penalty Act of
1996 (Pub. L. No 104- 132, 110 Stat. 1214)(the
"AEDPA") vastly increased the procedural
restrictions on habeas corpus, the Supreme Court held a
district court could not grant release from confinement in a
§ 1983 action; to do so would frustrate the habeas
exhaustion requirements. Preiser v. Rodriquez, 411
U.S. 475 (1973). (Notably, Justice Brennan, the major
architect of expansion of habeas in the 1960's,
dissented.) 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 AEDPA. The
Court unanimously concluded that, because 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
Offices 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 not 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 obey 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 amended. Then the Supreme Court appeared to call this
Court's practice into question with its decision in
Glossip v. Gross, 135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an
alternative method of execution contravenes our
pre-Baze [v. Rees, 533 U.S. 35 (2008)]
decision in Hill v. McDonough, 547 U.S. 573, 126
S.Ct. 2096, 165 L.Ed.2d 44 (2006), but they misread that
decision. The portion of the opinion in Hill on
which they rely concerned a question of civil procedure, not
a substantive Eighth Amendment question. In Hill,
the issue was whether a challenge to a method of execution
must be brought by means of an application for a writ of
habeas corpus or a civil action under §1983.
Id., at 576, 126 S.Ct. 2096, 165 L.Ed.2d 44. We held
that a method-of-execution claim must be brought ...