United States District Court, S.D. Ohio, Western Division, Cincinnati
DECISION AND ORDER ON MOTION TO AMEND
Michael R. Merz United States Magistrate Judge.
capital habeas corpus case is before the Court on the
Petitioner's Motion for Leave to File an Amended Petition
(ECF No. 203). The Warden opposes the Motion (ECF No. 204)
and Hughbanks has filed a Reply in Support (ECF No. 209).
parties have unanimously consented to plenary magistrate
judge jurisdiction in this case under 28 U.S.C. §
636(c)(ECF No. 13).
seeks to add a Twenty-Second Ground for Relief as follows:
Gary Hughbanks Execution Under Ohio Law Will Violate The
Eighth Amendment Because Any Method That The Ohio Department
Of Corrections And Rehabilitation Employs Has A Substantial,
Objectively, Intolerable Risk Of Causing Unnecessary, Severe
Pain, Suffering Degradation, Humiliation, And/Or Disgrace.
(ECF No. 203-1, PageID 15783.)
original Petition was filed February 12, 2007, pleading
fourteen grounds for relief, but not including any
constitutional attack on lethal injection as a method of
execution. On May 2, 2012, the Court allowed an amendment to
add the following claims:
Fifteenth Ground for Relief: Ohio's lethal injection
protocol will cause Petitioner to be executed in a manner
that constitutes cruel and unusual punishment. United States
Constitution, Eighth and Fourteenth Amendments.
Sixteenth Ground for Relief: Ohio's lethal injection
protocol will cause petitioner to be executed in a manner
that violates equal protection. United States Constitution,
Eighth and Fourteenth Amendments.
(ECF No. 131, PageID 1798-99.) The Amended Petition including
these claims was then filed May 22, 2012 (ECF No. 134).
February 12, 2016, Hughbanks again moved to amend (ECF No.
182) which the Court granted in part on June 14, 2016 (ECF
No. 187) resulting in the filing of Petitioner's Second
Amended Petition on June 24, 2016 (ECF No. 188). That
document includes the notation that Hughbanks' Lethal
Injection Habeas Claim (Ground Twenty-Two) was
“dismissed without prejudice.” Id. at
PageID 15245. Actually, the Court had denied leave to add
Ground Twenty-Two without prejudice to its renewal within
thirty days of issuance of the mandate by the Sixth Circuit
in the Stanley Adams habeas corpus case (ECF No. 187, PageID
15236). The instant motion was timely filed on that schedule.
general standard for considering a motion to amend under
Fed.R.Civ.P. 15(a) was enunciated by the United States