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Smith v. Pineda

United States District Court, S.D. Ohio, Western Division, Cincinnati

April 3, 2017

KENNETH SMITH, Petitioner,
FRANCISCO PINEDA, Warden, Franklin Medical Center Respondent.

          District Judge, Thomas M. Rose



         This 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. 102).

         In his 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 so.

         Procedural History

         Petitioner 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).

         Smith 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).

         On 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.


         Kenneth 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 Circuit.

         A civil 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 (2011).

         Even 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.

         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 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.

         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 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 ...

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