United States District Court, S.D. Ohio, Western Division, Cincinnati
BOBBY T. SHEPPARD, Petitioner,
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
Timothy S. Black District Judge.
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz, United States Magistrate Judge.
capital habeas corpus case is before the Court on
Petitioner's Objections (“Objections, ” ECF
No. 112) to the Magistrate Judge's Supplemental Report
and Recommendations (“Supplemental Report, ” ECF
No. 106) on remand from the Sixth Circuit. District Judge
Black has recommitted the matter for reconsideration in light
of the Objections (ECF No. 113).
question before the Court is whether Sheppard's Petition
(ECF No. 2) and his Motion to File a Second Amended and
Supplemental Petition (ECF No. 100) are second-or-successive
habeas applications which require permission from the circuit
court under 28 U.S.C. § 2244(b) before this Court has
jurisdiction to proceed. The original Report and
Recommendations on this question (“Original Report,
” ECF No. 103) concluded that both the Petition and the
Motion must be transferred to the Sixth Circuit. The
Supplemental Report reached the same conclusion after
reconsideration in light of Petitioner's first set of
Objections (ECF No. 104).
raises five objections to the Supplemental Report which will
be considered seriatim.
One: The District Judge's ruling that Sheppard's
claims are not second-or-successive has not been subject to
an intervening change in law.
first objects that the law of the case bars a
second-or-successive conclusion now because there has not
been a material change in the law since the prior ruling in
this case was initially filed, it was assigned to District
Judge Gregory Frost and the undersigned Magistrate Judge
because both of them had been assigned Sheppard's first
habeas case attacking his aggravated murder conviction and
death sentence, Case No. 1:00-cv-493. That case ended in
denial of habeas relief. Sheppard v. Bagley, 604
F.Supp.2d 1003 (S.D. Ohio Mar. 4, 2009), aff'd,
657 F.3d 38 (6th Cir. 2011); cert denied sub
nom. Sheppard v. Robinson, 567 U.S. 910 (2012).
Sheppard's effort to reopen that case in light of
Martinez v. Ryan, 566 U.S. 1 (2012), was also
unsuccessful. Sheppard v. Robinson, 2013 U.S. Dist.
LEXIS 5565 (S.D. Ohio Jan. 14, 2013), aff'd., 807 F.3d
815 (6th Cir. 2015), cert. denied, 137
S.Ct. 1201 (2017).
filed this second-in-time habeas petition March 9, 2012,
pleading that his execution under Ohio's then extant (as
of September 18, 2011) lethal injection protocol would
violate his Eighth Amendment and Equal Protection rights (ECF
No. 2). Over the State's objection, Judge Frost ruled
that the petition was not second-or-successive because
Sheppard's claims were “newly-arising” when
the 2011 protocol was adopted (ECF No. 35, PageID 360-62).
This is the prior law that Sheppard says remains the
controlling law of the case and has not been changed by
intervening decisions (See Objections, ECF No. 112, PageID
1736, citing ECF No. 35). The Magistrate Judge respectfully
Report and Supplemental Report rely on In re
Tibbetts, 869 F.3d 403 (6th Cir. 2017), cert.
denied, 2018 U.S. LEXIS 287 (Jan. 8, 2018), and Moreland
v. Robinson, 813 F.3d 315 (6thCir. 2016), as
significant changes in the applicable decisional law since
was before the Sixth Circuit on a transfer order from this
Court determining that Tibbetts' second-in-time habeas
petition was second-or-successive. He filed a motion to
remand “arguing that his second habeas petition is not
second or successive because his new claims were unripe when
he filed his initial habeas petition.” 869 F.3d at 405.
The circuit court found that Tibbetts had made a general
challenge to execution by lethal injection in his first
petition “and he has not identified practices or
procedures from the October 2013 or November 2016 protocols
or such other circumstances as would render his instant
challenge to the validity of his sentence newly ripe."
Id. at 408 (internal quotation marks omitted).
Objections attempt to distinguish Tibbetts on the
ground that Tibbetts challenged a “particular
procedure” for execution whereas Sheppard's
“is a challenge to Ohio's ability to execute him in
a constitutional manner under any method permitted by Ohio
law.” (Objections, ECF No. 112, PageID 1737.) That
distinction is incorrect. A comparison of Sheppard's four
proposed lethal injection invalidity claims with those made
by Tibbetts shows them to be substantively identical
(Compare, Raymond Tibbetts Proposed Amended Petition, Case
No. 1:14-cv-602, ECF No. 57-1, with Sheppard's Proposed
Second Amended and Supplemental Petition, ECF No. 100-1).
Sheppard's purported distinction, made by at least one of
the same attorneys who represents Tibbetts, is disingenuous
at best. Tibbetts certainly stands for the proposition that
claims under new Ohio execution protocols are not
“newly arising” so as to avoid the
Moreland v. Robinson, 813 F.3d 315 (6th
Cir. 2016), the Sixth Circuit affirmed this Court's
denial of Moreland's motions for relief from judgment and
to amend his original habeas petition, despite finding this
Court lacked jurisdiction to decide the motions because they
were in effect second-or-successive habeas applications.
Sheppard attempts to distinguish Moreland in that
the circuit recognized there can be post-judgment motions to
amend in habeas that are not second-or-successive, i.e., when
made after judgment but before the time for appeal has run.
Id. at 321, citing Clark v. United States,
764 F.3d 653 (6th Cir. 2014). Sheppard's
counsel write: “Here, there is no dispute that Sheppard
is moving to amend a petition he hasn't lost on the
merits, let alone exhausted appellate remedies.”
(Objections, ECF No. 112, PageID 1738). This is less
persuasive than the purported Tibbetts distinction.
Sheppard is not trying to amend his first habeas petition
post-judgment as Moreland was. Instead, he is trying to avoid
that process by filing an entirely new
Tibbetts and Moreland are important changes
in the relevant law since 2013, even more significant is
In re Campbell, 874 F.3d 454 (6th Cir.
2017), cert. den. sub nom. Campbell v. Jenkins, 199
L.Ed.2d 350 (2017). Campbell was decided October 26,
2017, nine days after the Supplemental Report was filed and
therefore not discussed in that document.
like Tibbetts, was before the Sixth Circuit on a
transfer order from this Court upon a finding that
Campbell's second-in-time petition was
second-or-successive and that he needed permission to proceed
under 28 U.S.C. § 2244(b). As they had done in
Tibbetts, Campbell's lawyers moved to remand on
their claim the petition was not second-or-successive. The
Sixth Circuit denied remand. It held Campbell's petition
was indeed second-or-successive and ...