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McKnight v. Bobby

United States District Court, S.D. Ohio, Eastern Division, Columbus

December 21, 2017

GREGORY McKNIGHT Petitioner,
v.
DAVID BOBBY, Warden, Respondent.

          Susan J. Dlott, District Judge.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This capital habeas corpus case is before the Court on Respondent's Motion to Dismiss Lethal Injection Claims (ECF No. 257). Petitioner opposes the Motion (ECF No. 260) and the time within which Respondent could have filed a reply in support has expired.

         The focus of the Warden's Motion is the four claims added by Supplemental Petition in April 2017 which read as follows:

Forty-First Ground for Relief: The State of Ohio cannot constitutionally execute Petitioner because the only manner available under the law to execute him violates his Eighth Amendment rights.
Forty-Second Ground for Relief: The State of Ohio cannot constitutionally execute Petitioner because the only manner available for execution violates the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment .
Forty-Third Ground for Relief: DRC cannot constitutionally execute Petitioner because the only manner of execution available for execution under Ohio law violates the Equal Protection Clause of the Fourteenth Amendment.
Forty-Fourth Ground for Relief: The State of Ohio cannot constitutionally execute Petitioner because Ohio's violations of federal law constitute a fundamental defect in the execution process, and the only manner of execution available for execution depends on state execution laws that are preempted by federal law.

         (ECF No. 241).

         Respondent seeks dismissal of these four grounds with prejudice in light 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). Petitioner opposes dismissal on the same bases that other capital habeas petitioners have opposed dismissal of identical claims since Campbell was decided in late October.

         Analysis

         In Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court held that a method-of-execution constitutional claim could be brought in a § 1983 case, over the objection of a number of States that such claims could only be brought in habeas corpus. The Court adhered to that view two years later in Hill v. McDonough, 547 U.S. 573 (2006). Shortly after Nelson was decided, death row inmates in Ohio initiated method-of-execution litigation in this Court under 42 U.S.C. § 1983 in Cooey v. Taft, Case No. 2:04-cv-1156. As consolidated with other inmates' claims, that case remains pending under the caption In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016 (the “Protocol Case”.) The Protocol Case is very active litigation, having garnered 748 filings and three preliminary injunction hearings since Ohio announced on October 3, 2016, its intention to resume executions. Although Petitioner is not a plaintiff in the Protocol Case, nothing prevents him from intervening in that case or filing a separate § 1983 case seeking relief on the same substantive claims he has made in these four Grounds for Relief.

         Civil rights litigation provides a plaintiff with many advantages over habeas corpus. Section 1983 cases enjoy the full scope of federal civil discovery, whereas discovery in habeas cases is only with court permission. In a civil rights case it is open to counsel to argue constitutional claims de novo, whereas habeas is a backward-looking remedy concerned with the validity of a judgment entered years earlier and judged by Supreme Court law as it stood when the state courts decided the case. Civil rights litigants are entitled to present evidence, both on preliminary injunction and at trial, whereas evidence-taking in habeas is constrained by 28 U.S.C. § 2254(e) and Cullen v. Pinholster, 563 U.S. 170 (2011).

         Nevertheless, for the past six years the death penalty petitioners' bar has been filing substantively parallel constitutional claims in both § 1983 and habeas corpus. This practice has been supported by decisions of the Sixth Circuit in the Stanley Adams capital habeas case from the Northern District of Ohio. In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)(Adams I), the court held that a lethal-injection-invalidity claim could be brought in habeas, inverting the holdings in Nelson and Hill. This Magistrate Judge and other judicial officers of this Court faithfully followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S.Ct. 2726 (2015).

         In Glossip the Supreme Court interpreted its earlier ...


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