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Sheppard v. Jenkins

United States District Court, S.D. Ohio, Western Division, Cincinnati

January 17, 2018

BOBBY T. SHEPPARD, Petitioner,
v.
CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.

          Timothy S. Black District Judge.

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

          Michael R. Merz, United States Magistrate Judge.

         This 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).

         The 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).

         Sheppard raises five objections to the Supplemental Report which will be considered seriatim.

         Objection 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.

         Sheppard 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 2013.

         When 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).

         Sheppard 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 disagrees.

         The 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 2013.

         Tibbetts 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).

         The 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 second-or-successive bar.

         In 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 petition.[1]

         While 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.

         Campbell, 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 ...


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