United States District Court, S.D. Ohio, Western Division
A. Sargus, Jr. Chief Judge.
DECISION AND ORDER
Michael R. Merz United States Magistrate Judge.
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).
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
(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)
first argues that his lethal injection invalidity claims
remain cognizable under Adams v. Bradshaw, 826 F.3d
306 (6th Cir. 2016). 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 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.
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.
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.
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
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.
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 ...