United States District Court, S.D. Ohio, Western Division, Cincinnati
DECISION AND ORDER GRANTING MOTION TO DISMISS LETHAL
Michael R. Merz, United States Magistrate Judge
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
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 ).
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).
Twenty-Second Ground for Relief in the Third Amended Petition
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.)
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.
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.
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).
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).
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, ...