United States District Court, S.D. Ohio, Western Division, Cincinnati
J. Dlott District Judge
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 an Amended
Petition (“Renewed Motion.” ECF No. 57). The
Warden filed a responsive paper which both opposes the Motion
to Amend and seeks to have the case transferred as
second-of-successive (ECF Nos. 58, 59). Petitioner's time
to file a reply in support of the Renewed Motion expired
March 25, 2017, and his time to oppose the Motion to Transfer
expired March 31, 2017. Without seeking or obtaining an
extension of time, Petitioner filed a single paper supporting
his Renewed Motion and opposing the transfer on April 3, 2017
(ECF No. 60).
Tibbetts was convicted and sentenced to death for the
November 6, 1997, murders of James Hicks and Susan Crawford.
His conviction was affirmed on direct appeal by the Ohio
Supreme Court. State v. Tibbetts, 92 Ohio St.3d 146
(2001). He then sought habeas corpus relief in this Court in
Tibbetts v. Bradshaw, Case No. 1:03-cv-114 in a
Petition filed February 18, 2003. On March 29, 2006, District
Judge Dlott dismissed the Petition with prejudice. That
decision was affirmed on appeal. Tibbetts v.
Bradshaw, 633 F.3d 436 (6th Cir. 2011),
cert. den., sub. nom. Tibbetts v. Bobby, 565 U.S.
876 (2011). The instant Petition was filed July 23, 2014 (ECF
filing, the Magistrate Judge ordered Petitioner to show cause
why this case should not be transferred to the Sixth Circuit
as a second-or-successive habeas application (ECF No. 3).
Tibbetts responded (ECF No. 6) and the Warden promptly filed
a Motion to Dismiss for lack of jurisdiction (ECF No. 7). In
opposing dismissal, Tibbetts relied on numerous cases
previously decided by the undersigned which concluded that
“habeas challenges to new lethal injection protocols
adopted since prior habeas corpus cases became final do not
constitute second or successive petitions within the meaning
of [28 U.S.C.] § 2244(b).” (ECF No. 11, PageID
127, n. 1.) Judge Dlott adopted the Reports reaching that
conclusion on March 5, 2015 (ECF No. 20).
end of the 2014 Term, the Supreme Court decided Glossip
v. Gross, 135 S.Ct. 2726 (2015). The Warden moved to
dismiss this and other cases on the basis of Glossip
(ECF No. 22). The Magistrate Judge instead entered an Order
to transfer the case to the circuit court as
second-or-successive (ECF No. 38), but that Order was
withdrawn and the ultimate decision on whether to permit an
amendment was postponed until the mandate was issued in
Stanley Adams' habeas corpus action in the Northern
District of Ohio. The instant Motion was timely filed in
accordance with the schedule the Court had adopted.
Tibbetts is a plaintiff in In re: Ohio Execution Protocol
Litig., Case No. 2:11-cv-1016. That case seeks to
permanently enjoin Ohio from executing Tibbetts and most
other Ohio death row inmates under the current lethal
injection protocol, which was adopted October 7, 2016. That
protocol has already been the subject of extensive
litigation, resulting in an order preliminarily enjoining its
intended use in the executions of Ronald Phillips, 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.
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 (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 (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, 2004, 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 and raising
substantively parallel claims. 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 (6thCir. 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 under
§1983 because such a claim does not attack the validity
of the prisoner's conviction or death sentence.
Id., at 579-580, 126 S.Ct. 2096, 165 L.Ed.2d 44.
135 S.Ct. at 2738. Changing course, this Court concluded the
“must be brought” language precluded what it had
been doing under Adams I. Then, in Adams II
as clarified by Adams III, the Sixth Circuit decided
Glossip did not implicitly overrule Adams
Adams challenged the constitutionality of lethal injection on
direct appeal, asserting that "[d]eath by lethal
injection constitutes cruel and unusual punishment and denies
due process under the state and federal constitutions."
The Ohio Supreme Court rejected this claim, explaining it had
"previously rejected similar arguments."
Adams, 817 N.E.2d at 56 (citing State v.
Carter, 89 Ohio St.3d 593, 2000 Ohio 172, 734 N.E.2d
345, 358 (Ohio 2000)). Adams again challenged the
constitutionality of execution by lethal injection in his
federal habeas corpus petition. The district court denied
this claim, noting that "lethal injection is the law of
the republic. No federal court has found the lethal injection
protocol to be unconstitutional." Adams, 484
F.Supp.2d at 796 (citation omitted).
As an initial matter, we note our recent holding that lethal
injection does not violate the Constitution. See Scott v.
Houk, 760 F.3d 497, 512 (6th Cir. 2014) ("Simply
put, lethal injection does not violate the Constitution per
se . . . ."). In Scott, a similar challenge to
the implementation of lethal injection was raised, as a panel
of this court observed that "Scott's petition
alleges that lethal injection 'inflicts torturous,
gratuitous and inhumane pain, suffering and anguish upon the
person executed.'" Id. at 511. Accordingly,
the Ohio Supreme Court's denial of Adams's challenge
to the constitutionality of lethal injection as a means of
execution did not constitute an unreasonable application of
Supreme Court precedent.
The Supreme Court's decision in Glossip does not
alter our precedent. Glossip concerned a 42 U.S.C.
§ 1983 action challenging ...