United States District Court, S.D. Ohio, Western Division, Cincinnati
Michael R. Barrett, District Judge
SUPPLEMENTAL OPINION ON MOTION TO AMEND
Michael R. Merz, United States Magistrate Judge
capital habeas corpus case is before the Court on
Petitioner's Appeal (ECF No. 289) of the Magistrate
Judge's Decision Denying Petitioner's Motion to Amend
(ECF No. 287). The Warden has responded to the Appeal (ECF
No. 291) and District Judge Barrett has recommitted the
matter for a supplemental opinion (ECF No. 290).
agrees that a motion to amend is non-dispositive under 28
U.S.C. § 636(b) and therefore it was proper for the
Magistrate Judge to decide the motion rather than
recommending a decision (Appeal, ECF No. 289, PageID 4115).
Raglin notes that all of his objections involve questions of
law on which the Magistrate Judge's Decision is to be
reviewed de novo. Id. at PageID 4116 and
the Magistrate Judge agrees.
Impact of In re: Campbell
Decision appealed from concluded that In re
Campbell, 874 F.3d 454 (6th Cir. 2017),
cert. den. sub nom. Campbell v. Jenkins, 199 L.Ed.2d
350 (2017), requires this Court to cease its practice of
allowing lethal injection invalidity claims to be pleaded in
habeas corpus cases. Rather, the Campbell court,
applying the Supreme Court's decision in Glossip v.
Gross, 135 S.Ct. 2726 (2015), concluded those claims can
only be brought in an action for injunctive relief under 42
U.S.C. § 1983. Raglin himself is a plaintiff in just
such a case, In re Lethal Injection Protocol Litig.,
2:11-cv-1016 (the “Protocol Case”), with most
other Ohio death row inmates. They seek injunctive relief in
that case on constitutional bases parallel to those in the
lethal injection invalidity claims he seeks to add here.
(Compare Proposed Grounds in ECF No. 272-1 with the Fourth
Amended Omnibus Complaint in the Protocol Case, ECF No.
first objects (Appeal, ECF No. 289, PageID 4116) that
Campbell cannot be followed here because
“Campbell is in conflict with the earlier
binding precedent Adams v. Bradshaw, 826 F.3d 306
(6th Cir. 2016) (“Adams III”), and
Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)
remedy does a death-sentenced inmate have for an
unconstitutional method of execution - habeas corpus, 42
U.S.C. § 1983, or both?
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 because 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 would, in Nelson's case, have been
subject to the second-or-successive requirement imposed by 28
U.S.C. § 2244(b). 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, 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 even earlier filing in
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 that
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 petitioners in
this Court. Thus the litigation context provides maximal
opportunities for coordination of strategy. To this
Court's eye, those opportunities are never missed; if
there are internal disagreements among the capital
petitioners' bar, they are not apparent to this Court.
bar has had an apparent strategy for some years to have
parallel habeas and § 1983 actions pending
simultaneously on behalf of the same inmate and raising
substantively parallel claims. Implementation of this
strategy has been supported by the series of decisions of 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 (6thCir. 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
Adams I the circuit court held, over Ohio's
objection, that a challenge to the method of lethal injection
could be brought in habeas corpus as well as in a § 1983
action. That is to say, availability of the § 1983 cause
of action did not logically imply the absence of a §
2254 cause of action. Attempting to obey Adams I,
this Court permitted amendments of habeas petitions to add
lethal injection claims.
the Supreme Court appeared to call this Court's practice
into question with its decision in Glossip v. Gross,
135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an
alternative method of execution contravenes our
pre-Baze [v. Rees, 533 U.S. 35 (2008)]
decision in Hill v. McDonough, 547 U.S. 573, 126
S.Ct. 2096, 165 L.Ed.2d 44 (2006), but they misread that
decision. The portion of the opinion in Hill on
which they rely concerned a question of civil procedure, not
a substantive Eighth Amendment question. In Hill,
the issue was whether a challenge to a method of execution
must be brought by means of an application for a writ of
habeas corpus or a civil action under §1983.
Id., at 576, 126 S.Ct. 2096, 165 L.Ed.2d 44. We held
that a method-of-execution claim must be brought