United States District Court, S.D. Ohio, Western Division, Dayton
A. Sargus, Jr. Chief Judge.
Michael R. Merz United States Magistrate Judge.
capital habeas corpus case is before the Court on
Petitioner's Appeal (ECF No. 187) of the Magistrate
Judge's Decision and Order (“Decision, ” ECF
No. 186) denying Petitioner's Motions to Amend to add
lethal injection invalidity claims and claims under Hurst
v. Florida, 577 U.S.__, 136 S.Ct. 616 (2016). The Warden
has responded to the Appeal (ECF No. 188) and Chief Judge
Sargus has recommitted the matter for a supplemental
memorandum analyzing the Appeal (ECF No. 189).
Magistrate Judge denied amendment to add lethal injection
invalidity claims on the basis of In re Campbell,
874 F.3d 454 (6th Cir. 2017), cert. den. sub
nom. Campbell v. Jenkins, 2017 U.S. LEXIS 6891 (Nov. 14,
2017). Adding a claim under Hurst was denied on the
basis of In re Coley, 871 F.3d 455 (6th
first argues that, although a motion to amend is
non-dispositive, review of a Magistrate Judge's legal
conclusions is de novo (Appeal, ECF No. 187, PageID
10265-66). The Magistrate Judge agrees.
argues the Magistrate Judge's reliance on Coley
to deny an amendment to add a claim under Hurst is
“misplaced” because the “relevant issue in
Coley was whether the petitioner could pursue a
second or successive habeas petition under 28 U.S.C. §
2244(b)(2).” (Appeal, ECF No. 187, PageID 10266).
Coley the Sixth Circuit expressly decided that the
District Court correctly found Coley's petition was
second-or-successive and thus subject to the §
2244(b)(2) bar. 471 F.2d at 457-58. It found Coley's
second-in-time petition did not fit within either of the two
exceptions to § 2244(b)(2) recognized in Panetti v.
Quarterman, 551 U.S. 930 (1998)(lack of ripeness of
claim at the time of the first petition) and Slack v.
McDaniel, 529 U.S. 473 (2000)(mixed petition dismissed
for lack of exhaustion without merits decision). The
Coley court found there was no exception for a claim
under a rule adopted after the first petition was
adjudicated. It rejected the suggestion made in Judge
Merritt's dissent and repeatedly argued by capital habeas
petitioners in this Court that a new rule is a newly arising
factual predicate, allowing a second petition without
satisfying § 2244(b)(2). 471 F.3d at 457, citing In
re Tibbetts, 869 F.3d 403 (6th Cir. 2017).
Coley panel assumed Hurst announced
“a new rule of constitutional law, ” but found
the Supreme Court had not made that rule retroactively
applicable to cases on collateral review. 471 F.3d at 457.
This does not count as a holding that Hurst is not
retroactive, Chinn argues, because “[t]he statutory
framework [of § 2244(b)(2)] is substantially more
restrictive than the general retroactivity framework set out
in Teague [v. Lane, 489 U.S. 288 (1989)], which
governs Chinn's present proceedings.” (Appeal, ECF
No. 187, PageID 10266.)
Magistrate Judge agrees that this case is Chinn's first
habeas application related to his death sentence and he
therefore does not have to satisfy § 2244(b)(2). The
question of whether Hurst applies retroactively is
therefore governed by Teague which requires the
lower courts to decide retroactivity questions in the first
instance rather than requiring, as 2244(b)(2) does, an
initial decision on that question by the Supreme Court
itself. See Wiegand v. United States, 380 F.3d 890,
892 (6th Cir. 2004).
Teague governs the retroactivity question, a number
of judges of this Court have already held that Hurst
is not to be applied retroactively. In Smith v. Pineda,
2017 WL 631410 (S.D. Ohio Feb. 16, 2017) and McKnight v.
Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio Feb. 15,
2017), the undersigned held that under Teague, Hurst
does not apply retroactively. In Gapen v. Robinson,
2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15, 2017),
District Judge Rice reached the same conclusion. In Davis
v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep.
25, 2017), Chief Judge Sargus reached the same conclusion, as
he did in Lindsey v. Jenkins, Case No. 1:03-cv-702
(S.D. Ohio Sep. 25, 2017) as well. District Judge Marbley
reached the same conclusion in Myers v. Bagley, Case
No. 3:04-cv-174 (S.D. Ohio Sep. 12, 2017)(unreported;
available in that case at ECF No. 126), and Robb v.
Ishee, Case No. 2:02-cv-535 (S.D. Ohio Sep. 12,
2017)(unreported; available in that case at ECF No. 213).
seven of these cases, the death row inmate is represented by
one or more attorneys employed by the Federal Public Defender
for the Southern District of Ohio. Therefore, each of those
attorneys had notice - without doing any legal research - of
these seven in-point precedents that reject the argument made
in the Appeal. Moreover, all of those precedents are recent,
having been handed down this year. And yet none of these
precedents is cited in the Appeal. In any objections to this
Supplemental Memorandum, Petitioner's counsel shall
explain why failure to cite these cases is not a violation of
Rule 3.3 of the Ohio Rules of Professional Conduct.
Magistrate Judge agrees Coley does not address the
question of Teague retroactivity. But under the
reasoning of these seven cited decisions, Hurst is
not retroactive under Teague.Petitioner has
cited no authority to the contrary, i.e., no Ohio case
holding Hurst does apply retroactively.
does Petitioner offer any argument as to why, apart from
precedent, Hurst should apply retroactively under
Teague. To summarize the argument made in the cited
cases, Hurst is new because it was not dictated by
precedent; the Supreme Court overruled two precedents to
reach the result in Hurst, Spaziano v.
Florida, 468 U.S. 447 (1984), and Hildwin v.
Florida, 490 U.S. 638 (1989), were expressly overruled.
Hurst is not “substantive” in the
Teague sense because it does not place certain
conduct or a certain class of defendants beyond the power of
the State to punish. ...