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Chinn v. Jenkins

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

November 8, 2017

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

          Edmund A. Sargus, Jr. Chief Judge.

          DECISION AND ORDER

          Michael R. Merz United States Magistrate Judge.

         In this capital habeas corpus case, the Magistrate Judge granted Petitioner leave to amend his Petition to add four lethal injection invalidity claims for relief, Grounds Twenty-Four, Twenty-Five, Twenty-Six, and Twenty-Seven (ECF No. 160). The Warden objected (ECF No. 165), Chief Judge Sargus recommitted the matter (ECF No. 166), and the Magistrate Judge filed a Second Supplemental Report and Recommendations, recommending that the Warden's Objections be overruled (ECF No. 169). The same Report also recommends that Petitioner not be allowed add claims under Hurst v. Florida, 577 U.S.__, 136 S.Ct. 616 (2016). Multiple Objections and Responses were filed (ECF Nos. 170, 172, 173, 174).

         The Chief Judge had not yet reached these objections for decision when the Sixth Circuit decided In re Campbell, __F.3d__, 2017 U.S. App. LEXIS 21094 (6th Cir. Oct. 25, 2017). On the basis of that decision, the Magistrate Judge vacated prior filings and ordered Petitioner

to show cause . . why, in light of Campbell, the Court should not deny leave to add lethal injection invalidity claims to this habeas corpus case, particularly in light of the pendency of In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016, in which Mr. Chinn is a Plaintiff.

(Entry, ECF No. 182, PageID 10241.) Petitioner has timely responded (Response, ECF No. 183), and the Warden has replied to the Response (ECF No. 185)

         Chinn first argues that his lethal injection invalidity claims remain cognizable under Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016).[1] Chinn relies on Davis v. Warden, No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 16152 (S.D. Ohio Oct. 2, 2017). Davis follows the logic adopted by the undersigned in a number of cases[2] that Adams III recognizes a category of lethal injection invalidity claims which are still cognizable in habeas corpus despite Glossip v. Gross, 135 S.Ct. 2726 (2015), and In re: Tibbetts, 869 F.3d 403 (6th Cir. 2017). But Davis was decided October 2, 2017, before Campbell was handed down.

         Chinn next argues Campbell's statements related to cognizability “are entitled to little, if any, precedential weight [because] [a] dismissal under § 2244(b) is not a decision on the merits of the underlying claims.” (ECF No. 183, PageID 10244). This argument runs against the obvious intent of the Sixth Circuit in Campbell to clarify the cognizability question:

Campbell maintains that his current claims are properly raised in a habeas proceeding. Because the law on this subject is not clear and has been the subject of several recent, published decisions by this Circuit and the Supreme Court, we pause at the outset to clarify the standard.

In re Campbell, 2017 U.S. App. LEXIS 21094, *5. And as the Campbell court also notes, the language this Court had been relying on from Adams III was itself dictum because the Adams court held against the petitioner on the merits.

         Davel Chinn 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 its 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). 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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