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Bays v. Warden, Chillicothe Correctional Institution

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

April 10, 2017

RICHARD BAYS, Petitioner,
v.
WARDEN, Chillicothe Correctional Institution, Respondent.

          Thomas M. Rose District Judge

          DECISION AND ORDER

          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 a Second Amended and Supplemental Petition for Writ of Habeas Corpus (Renewed Motion, ECF No. 232). The Warden opposes the Motion (Opposition, ECF No. 233) and Mr. Bays has filed a Reply in Support (Reply, ECF No. 234).

         Procedural History

         On November 15, 1993, Petitioner Richard Bays robbed and murdered Charles Weaver. He was indicted by the Greene County grand jury on one count of aggravated murder under [former] Ohio Revised Code § 2903.01(A), one count of aggravated murder under [former] Ohio Revised Code § 2903.01(B), and one count aggravated robbery under Ohio Revised Code 2911.02(A)(2). Having waived his right to trial by jury, Bays was tried by a three-judge panel and convicted of aggravated murder with a capital specification and aggravated robbery and sentenced to be executed. Since the murder happened before January 1, 1995, Mr. Bays appealed to the second District Court of Appeals which affirmed the conviction and sentence. State v. Bays, No. 95-CA-118, 1998 WL 32595 (2nd Dist. Jan. 30, 1998). On appeal of right to the Ohio Supreme Court, the conviction and sentence were affirmed. State v. Bays, 87 Ohio St. 3d 15 (1999) cert. den. 529 U.S. 1090 (2000).

         Mr. Bays filed for post-conviction relief under Ohio Revised Code § 2953.21. Although initially unsuccessful, he obtained a reversal in the Second District which remanded for a hearing. On December 12, 2002, the trial court again denied relief. Mr. Bays appealed unsuccessfully to the Second District and Ohio Supreme Court. Bays filed a successive petition under Ohio Revised Code § 2953.21 making a claim under Atkins v. Virginia, 536 U.S. 304 (2002). That petition was voluntarily dismissed November 9, 2007, and the Petition in this case was filed November 6, 2008.

         On February 21, 2012, the Magistrate Judge filed a Report and Recommendations recommending the Petition be dismissed with prejudice (Report, ECF No. 109). Over the Warden’s objections, Mr. Bays was permitted to file an Amended Petition on May 11, 2012, which pleaded two new Grounds for Relief alleging respectively that Bays’ execution by lethal injection would subject him to cruel and unusual punishment (Ground 12) and would deny him equal protection of the law (Ground 13)(ECF No. 122, PageID 1672).

         On August 6, 2012, District Judge Rose adopted the Report (ECF No. 134). On January 29, 2013, he adopted the Magistrate Judge’s recommendations on a certificate of appealability (ECF No. 148). Then on May 24, 2013, Mr. Bays moved again to amend to raise Atkins claims and to hold the case in abeyance while he returned to state court to litigate those claims (ECF No. 153). Judge Rose affirmed the Magistrate Judge’s denial of the motion to amend and stay (ECF No. 173).

         On January 22, 2014, the Magistrate Judge sua sponte raised the question whether the Twelfth and Thirteenth Grounds for Relief were moot because they were directed at an Ohio Protocol that had been superseded (Order to Show Cause, ECF No. 174). After some delay occasioned by the execution of Dennis McGuire, Mr. Bays filed again for leave to amend (ECF No. 198). Eventually Bays was given leave to move to amend within thirty days of the mandate in the Stanley Adams habeas corpus litigation (ECF No. 225). The instant renewed Motion was filed in accordance with that schedule.

         Bays’ Proposed Second Amended Petition

         Bays preserves his original claims for appeal by incorporating his Petition and Amended Petition by reference (ECF No. 232-1, PageID 8583) He proposes four new Grounds for Relief to replace Grounds Twelve and Thirteen, as follows:

FIRST GROUND FOR RELIEF: The State of Ohio cannot constitutionally execute Petitioner because the only manner available under the law to execute him violates his Eighth Amendment rights.
SECOND GROUND FOR RELIEF: The State of Ohio cannot constitutionally execute Petitioner because the only manner available for execution violates the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment.
THIRD GROUND FOR RELIEF: The State of Ohio cannot constitutionally execute Petitioner because the only manner of execution available for execution under Ohio law violates the Equal Protection Clause of the Fourteenth Amendment.
FOURTH GROUND FOR RELIEF: The State of Ohio cannot constitutionally execute Petitioner because Ohio’s violations of federal law constitute a fundamental defect in the execution process, and the only manner of execution available for execution depends on state execution laws that are preempted by federal law.

Id.

         Bays’ Renewed Motion focuses principally on the cognizability of his lethal injection claims in habeas corpus in light of Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016)(Adams III). He asserts that it is not the same as an attack on the current lethal injection protocol such as might be made in an action under 42 U.S.C. § 1983 because it “attacks the validity of Bays’ death sentence judgment. . .” (ECF No. 232, PageID 8580). Nonetheless, it “will necessarily encompass the facts relevant to what the State intends to do under the current execution protocol. . .” Id. Bays notes that Ohio adopted a new protocol October 7, 2016, and asserts “[t]he current protocol gives rise to new claims arising from differences between it and the superseded protocol underlying Bays’s prior claims, as well as making Bays’s prior claims newly ripe in accordance with the new protocol.” Id. Conversely, Bays says, his claims are not so broad as to be claims that lethal injection is per se unconstitutional. Id. at PageID 8581. Finally, he notes that his claims will include his own health characteristics, showing why lethal injection is unconstitutional as applied to him. Id. at PageID 8582

         His habeas corpus lethal injection claims are different from possible § 1983 claims, Bays asserts, because success in a civil rights case would only relate to a particular method of lethal injunction and would not declare his death sentence unconstitutional and therefore invalid, relief which can only be obtained in habeas corpus. Id. at PageID 8583.

         The Warden opposes amendment on the grounds the amendment is untimely under the AEDPA statute of limitations and futility because the proposed grounds for relief are not cognizable in habeas corpus (Opposition, ECF No. 233, PageID 8703). Bays’ Reply argues at some length how his habeas lethal injection claims fit into the window recognized by Adams III -- not so broad as to be per se challenges, not so narrow as to challenge only a particular protocol (Reply, ECF No. 234, PageID 8705-11). He relies on Adams III, but also In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported Order; copy at Case No. 1:00-cv-767, ECF No. 274-1, PageID 3961, et seq.)

         Analysis

         Richard Bays 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 him 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, Raymond Tibbetts, and Gary Otte. In re: Ohio Execution Protocol Litig. (Phillips, ...


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