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Bays v. Warden, Ohio State Penitentiary

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

November 6, 2017

RICHARD BAYS, Petitioner,
v.
WARDEN, Ohio State Penitentiary, Respondent.

          Thomas M. Rose District Judge

          SUBSTITUTED REPORT AND RECOMMENDATIONS

          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 Claims (ECF No. 250). The Magistrate Judge recommended granting the Motion in part and denying it in part (Report, ECF No. 256). Both parties objected (ECF Nos. 257, 258) and filed Responses to each other's Objections (ECF Nos. 260, 263). Judge Rose recommitted the matter for reconsideration in light of the Objections (ECF No. 259). Then the Sixth Circuit handed down In re Campbell, ___ F.3d ___, 2017 U.S. App. LEXIS 21094 (6th Cir. Oct. 25, 2017). Because Campbell changes the Magistrate Judge's analysis of the issues involved, the prior Report is WITHDRAWN and the issues are here considered de novo.

         The Grounds for Relief in question appear in the Amended Petition filed July 24, 2017, (ECF No. 247) as follows:

SIXTEENTH 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.
SEVENTEENTH 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.
EIGHTEENTH 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.
NINETEENTH 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.

(ECF No. 232-1, PageID 8583.) The Magistrate Judge permitted amendment of the Petition to add these claims, analyzing them as fitting within the “cognizability window” for lethal injection invalidity claims in habeas corpus recognized in Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016) (Decision and Order, ECF No. 235, PageID 8728, reported at Bays v. Warden, 2017 U.S. Dist. LEXIS 54466 (S.D. Ohio Apr. 10, 2017.) The Warden then filed the instant Motion to Dismiss based on the Sixth Circuit's decision, In re: Tibbetts, 869 F.3d 403, (6th Cir. Jul 24, 2017). The Magistrate Judge applied Tibbetts in the initial Report, but while Tibbetts is relevant to the issues involved, Campbell is dispositive for reasons that follow.

         Analysis

         Richard Bays is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv-1016 (the “Protocol Case”). 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, e.g., In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S. Dist. LEXIS 11019 (S.D. Ohio Jan 26, 2017), rev'd, 860 F.3d 881 (6th Cir. June 28, 2017)(en banc); cert den. sub nom. Otte v. Morgan, ___ U.S. ___, 2017 WL 3160287 (July 25, 2017); In re: Ohio Execution Protocol Litig. (Otte), 2017 U.S. Dist. LEXIS 145432 (S.D. Ohio Sept. 8, 2017); In re: Ohio Execution Protocol Litig. (Campbell & Tibbetts), 2017 U.S. Dist. LEXIS 182406 (S.D. Ohio Nov. 3, 2017).

         A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages over a habeas corpus action. Among other things, it is not subject to the second-or-successive limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of focused on what happened in the state courts, it is not limited in the introduction of evidence imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011).

         Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district court could not grant release from confinement in a § 1983 action; to do so would frustrate the habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). (Notably, Justice Brennan, the major architect of expansion of habeas in the 1960's, dissented.) It was in Nelson v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of execution claim could be brought in a § 1983 case, over the objection of state officials who insisted that such a claim had to be brought in habeas corpus and which would, in Nelson's case, have been subject to the second-or-successive requirement imposed by the AEDPA. The Court unanimously concluded that, because Nelson's challenge to the method of execution (a vein cut-down procedure) did not challenge his actual death sentence, it could be brought in a § 1983 action.

         Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of the Protocol Case, was filed December 8, 2004, and references an earlier filing in Case No. 2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in the Protocol Case, Cooey remains pending. The same organizations of attorneys who provide representation to plaintiffs in the Protocol Case - the Capital Habeas Units of the Offices of the Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public Defender's Office - also represent most of the capital habeas corpus ...


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