United States District Court, S.D. Ohio, Western Division, Dayton
A. Sargus, Jr., Chief Judge
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz, United States Magistrate Judge
capital habeas corpus case is before the Court on recommittal
by Chief Judge Sargus (ECF No. 166). The Recommittal Order
encompasses Magistrate Judge decisions on proposed amendments
to the Petition to add claims under Hurst v.
Florida, 577 U.S. ___, 136 S.Ct. 616 (2016), and under
Adams v. Bradshaw, 826 F.3d 306 (6th Cir.
June 13, 2016).
Magistrate Judge has denied Petitioner's Motion to Amend
to add claims under Hurst (Order, ECF No. 148) and
adhered to that conclusion on a previous recommittal (ECF No.
objects that it is unreasonable to deny as futile an
amendment to add a Hurst claim on Teague v.
Lane grounds when the United States Supreme Court has
not yet ruled that Hurst is not retroactive
(Objections, ECF No. 164, PageID 10110). However, the
Hurst retroactivity question is not reserved to the
Supreme Court. Like other Supreme Court case law, it must be
applied by the lower courts as best they can until the
Supreme Court says something definitive.
relies on an unpublished decision allowing an amendment to
add a claim under Hall v. Florida, 134 S.Ct. 1986
(2014), Sample v. Carpenter, 2014 U.S. Dist. LEXIS
180618 (W.D. Tenn. Oct. 20, 2014). Judge Lipman concluded
that the Sixth Circuit's decision in Van Tran v.
Colson, 764 F.3d 594 (6th Cir. 2014), made it
at least arguable that Hall applied retroactively.
It appears the logic of that conclusion is that Hall
recognized a substantive constitutional right which would be
retroactively applicable on collateral reviews just as its
progenitor, Atkins v. Virginia, 536 U.S. 304 (2002),
is. Hurst is not a new substantive right, but rather
speaks to the procedure in capital cases, requiring
application of the other branch of Teague v. Lane.
And Judge Lipman's decision does support this Court's
conclusion that the retroactivity decision is to be made in
the first instance in the District Court.
also objects that it is unreasonable to deny an amendment to
add a Hurst claim when the state courts might reach
a different conclusion on retroactivity. Prior opinions
already deal with findings of retroactivity in Delaware and
Florida on the basis of their state laws of retroactivity.
The state law of retroactivity has no bearing on a Teague
v. Lane question which is purely a question of federal
law. Petitioner continues to rely on the decision without
opinion in State v. Kirkland, 145 Ohio St. 1455
(2016). In response the Warden cites numerous cases in which
Hurst has been argued to the Ohio Supreme Court and
rejected (Response, ECF No. 167, PageID 10133.)
arguments on the Hurst claim remain unpersuasive.
Lethal Injection Invalidity Claims
moved to amend to add lethal injection invalidity claims
under Adams III (Renewed Motion, ECF No. 155). The
Warden opposed the Motion on the basis that the proposed
claims were not cognizable in habeas corpus and were time
barred (ECF No. 156). The Magistrate Judge found the claims
were cognizable under Adams III (Decision and Order,
ECF No. 160, PageID 10097).
statute of limitations question, the Warden's argument
was one paragraph long (ECF No. 156, PageID 10059) and the
Petitioner offered an eleven-page reply (ECF No. 158, PageID
10067-77). The Magistrate Judge analyzed Petitioner's
position as consistent with the long-term strategy of capital
litigants in this Court to have simultaneously pending habeas
and civil rights cases raising substantively parallel claims
and, to that end, to attempt to collapse the procedural
differences between habeas and civil rights litigation. While
the Magistrate Judge rejected that analysis, the Decision
concluded that equitable consideration should be given to the
confused state of the law under the Adams decisions:
Although this Court has now concluded on the basis of
Adams III and Landrum that the
cognizability, second-or-successive, and limitations
questions must be kept separate, capital habeas petitioners
should not be penalized for following the Court's lead
during that period between Adams I and Adams
III. And the Court must take full responsibility for the
delay between the Adams III decision and issuance of
the mandate in that case, although it was urged to that
position by Petitioner's counsel. The State of Ohio has
not claimed any prejudice ...