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Chinn v. Jenkins

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

May 22, 2017

DAVEL CHINN, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

          Edmund A. Sargus, Jr., Chief Judge

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge

         This 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).[1]

         Proposed Hurst Claims

         The Magistrate Judge has denied Petitioner's Motion to Amend to add claims under Hurst (Order, ECF No. 148) and adhered to that conclusion[2] on a previous recommittal (ECF No. 159).

         Chinn 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.

         Chinn relies on an unpublished decision allowing an amendment to add a claim under Hall v. Florida, 134 S.Ct. 1986 (2014), Sample v. Carpenter, 2014 U.S. Dist.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.

         Chinn 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.)

         Petitioner's arguments on the Hurst claim remain unpersuasive.

         Proposed Lethal Injection Invalidity Claims

         Chinn 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).

         On the 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 ...

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