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Tibbetts v. Warden, Chillicothe Correctional Institution

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

April 5, 2017

WARDEN, Chillicothe Correctional Institution, Respondent.

          Susan J. Dlott District Judge


          Michael R. Merz United States Magistrate Judge

         This 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).[1]

         Procedural History

         Raymond 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 No. 2).

         Upon 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).

         At the 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.


         Raymond 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.

         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 (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.

         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, 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.

         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 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 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 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 I:

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. ยง 1983 action challenging ...

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