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Hughbanks v. Hudson

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

November 13, 2017

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

          DECISION AND ORDER GRANTING MOTION TO DISMISS LETHAL INJECTION CLAIM

          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. 226). Petitioner opposes the Motion (ECF No. 239) and the Warden has orally waived an opportunity to file a reply memorandum.

         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 (Adams III), 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 ).

         The Warden's Motion essentially seeks reconsideration of the Court's prior denial of dismissal on the basis of two Sixth Circuit decisions, In re: Tibbetts, 869 F.3d 403 (6th Cir. 2017); and In re Campbell, ___ F.3d ___, 2017 U.S. App. LEXIS 21094 (6th Cir. Oct. 25, 2017).

         Analysis

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

Twenty-Second Claim for Relief: Gary Hughbanks [sic] 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.)

         This Court's prior treatment of lethal-injection-invalidity claims in habeas corpus was based on its reading of the set of decisions by the Sixth Circuit in Stanley Adams' habeas corpus case from the Northern District of Ohio, Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6th Cir. March 15, 2016); and Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), referred to herein as Adams I, Adams II, and Adams III respectively.

         In Adams I, the Sixth Circuit held, over Ohio's objection, that a challenge to a method of execution could be brought in habeas corpus as well as in an action under 42 U.S.C. § 1983. This Court followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S.Ct. 2726 (2015). In Glossip, Justice Alito interpreted Hill v. McDonough, 547 U.S. 573 (2006), as holding “a method of execution claim must be brought under § 1983 . . . .” 135 S.Ct. at 2738.

         After Glossip, this Court reversed course. Judge Frost put it succinctly: “This Court and other courts within this District have since relied on Adams [I] in accepting the proposition that method-of-execution claims properly sound in habeas corpus. Glossip now undeniably upends that practice.” Henderson v. Warden, 136 F.Supp.3d 847, 851 (S.D. Ohio 2015).

         Then, in March 2016, came Adams II in which the Sixth Circuit held that “The Supreme Court's decision in Glossip does not alter our precedent.” 817 F.3d at 297. The State sought “clarification” of Adams II and the Sixth Circuit published Adams III in June 2016 again recognizing a category of lethal-injection-invalidity claims which could be brought in habeas. Offered a chance to clarify what it had meant in Glossip, the Supreme Court denied certiorari in Adams III. Adams v. Jenkins, 137 S.Ct. 814, 196 L.Ed.2d 602 (2017). After certiorari was denied, the Sixth Circuit issued its mandate in Adams III and this Court understood it was back where it had been under Adams I in 2011, to wit, that there was a class of lethal-injection-invalidity claims which, if successful, would render a particular petitioner's death sentence invalid. It was on that reading of Adams III that the Magistrate Judge granted in part the instant Motion to Amend (ECF No. 275, PageID 3993).

         Campbell again changes the analysis. Interpreting Glossip, the circuit court held:

Glossip therefore closed the hypothetical door left open by Nelson, Hill, and Adams II. No longer can a method-of-execution claim impair a death sentence itself. And since a method-of-execution claim can no longer "attack the validity of the prisoner's conviction or death sentence, ...

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