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Hughbanks v. Hudson

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

June 22, 2017

GARY HUGHBANKS, Petitioner,
v.
STUART HUDSON, Warden, Respondent.

          DECISION AND ORDER ON MOTION TO DISMISS LETHAL INJECTION AS-APPLIED CLAIMS

          Michael R. Merz United States Magistrate Judge

         This capital habeas corpus case is before the Court on the Warden's Motion to Dismiss Lethal Injection As-Applied Claims (ECF No. 215). Petitioner opposes the Motion (ECF No. 218) and the Warden has filed a Reply in support (ECF No. 219).

         Although a motion to dismiss involuntarily for failure to state a claim is classified as dispositive by 28 U.S.C. § 636(b), the parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) (ECF No. 13).

         The claims sought to be dismissed are included in Petitioner's Third Amended Petition (ECF No. 213). The Third Amended Petition was filed pursuant to permission granted in the Corrected Decision and Order on Motion to Amend (ECF No. 212)(reported at Hughbanks v. Hudson, 2017 U.S. Dist. LEXIS 56005 (S.D. Ohio Apr 12, 2017)). In granting leave to amend, the Court applied the general standard enunciated in Foman v. Davis, 371 U.S. 178 (1962), as against the Warden's claim that the amendment would be futile because the added claim (Ground Twenty-Two) would be subject to dismissal under Fed.R.Civ.P. 12(b)(6) as untimely and for failing to state a claim on which habeas corpus relief could be granted. The Court overruled the Warden's cognizability objection on the basis of Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th Cir. 2016), cert den. sub nom. Adams v. Jenkins, 137 S.Ct. 814, 196 L.Ed.2d 602 (2017)(Adams III ). As to the statute of limitations defense, the Court held Hughbanks was entitled to equitable tolling for the time during which this Court was interpreting Adams I [1] in a manner completely parallel to the process seen in § 1983 capital litigation (ECF No. 212, PageID 15896-900).

         As he did in opposing the proposed amendment in the first place, the Warden moves to dismiss on the basis that Ground Twenty-Two is not cognizable in habeas and is barred by the statute of limitations (Motion, ECF No. 215). Hughbanks responds that the rulings in the Corrected Decision are now the law of the case (ECF No. 218). The Warden replies by noting that Fed.R.Civ.P. 54 makes all decisions before final judgment to be interlocutory and notes that he must file a 12(b)(6) motion now, before pleading, or lose the chance to do so altogether (ECF No. 219).

         Analysis

          Cognizability

          The Twenty-Second Ground for Relief in the Third Amended Petition reads:

Twenty-Second Claim for Relief: 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. 213, PageID 15907.)

         The Warden asserts this claim for relief is not cognizable on the same basis as this Court articulated in Turner v. Warden, 2016 U.S. Dist. LEXIS 6019 (S.D. Ohio Jan 19, 2016). In that decision, the Magistrate Judge reversed course, relying on his reading of Glossip v. Gross, 135 S.Ct. 2726 (2015):

In light of Glossip, this Court's prior treatment of lethal injection claims in habeas corpus requires severe modification. The Court has previously relied on a broad reading of Adams, supra, in permitting method-of-execution claims to be brought in habeas, regardless of whether the same claims were simultaneously pending in a § 1983 action. As Judge Frost of this Court wrote when confronted with the same argument, "Glossip undeniably upends this practice." Henderson v. Warden, No. 1:12-cv-703, 136 F.Supp.3d 847, 2015 U.S. Dist. LEXIS 134120 *9 (S.D. Ohio, Sept. 30, 2015). The undersigned has already reached the same conclusion, writing "[t]his Court's broad reading of Adams is inconsistent with the Supreme Court's ruling in Glossip. . ." Henness v. Jenkins, No. 2:14-cv-2580, 2015 U.S. Dist. LEXIS 148195, 2015 WL 666624 *5 (S.D. Ohio, Nov. 2, 2015).

Id. at *17. But this Court was “wrong”[2] in its reading of Glossip. In Adams III, the Sixth Circuit denied Glossip had fundamentally changed the result in Adams I and continued to allow lethal injection claims to be made in habeas despite the pendency of substantively identical claims being made by the same death row inmate in a pending § 1983 case. If Adams III is a misreading of Glossip, the Supreme Court passed up a chance to correct it by denying certiorari in Adams III. That is why the cited decision in Turner was withdrawn shortly after the Sixth Circuit handed down Adams II. (See ECF No. 268 in Case No. 2:07-cv-595). In the Corrected Decision, the Magistrate Judge relied on his reading of Adams III to allow the amendment:

As this Magistrate Judge understands it, the current state of the law in the Sixth Circuit after Adams III is that habeas corpus will lie to challenge "the constitutionality of lethal injection in general" to wit, that "lethal injection cannot be administered in a constitutional manner, and [that] claim 'could render [Petitioner's] death sentence effectively ...

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