Adams v. Bradshaw

Filing 128

MEMORANDUM OPINION & ORDER denying Motion for summary judgment (Related Doc # 110 ). Denying Petitioner's requests for judicial notice of In re: Ohio Execution Protocol Litigation and for further discovery. Case transferred to Sixth Circuit Court of Appeals. Judge David A. Katz on 8/2/13.(G,C)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

STANLEY T. ADAMS,
Petitioner,
vs.
NORMAN ROBINSON, Warden,
Respondent.

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CASE NO. 1:05 CV 1886

JUDGE DAVID A. KATZ

MEMORANDUM OF OPINION
AND ORDER

Before the Court is Respondent Warden Norman Robinson’s (“Respondent”)
Motion for Summary Judgment. (ECF No. 110.) He requests that the Court dismiss
Petitioner Stanley Adams’ (“Petitioner” or “Adams”) lethal injection claim, which the
Sixth Circuit Court of Appeals remanded to this Court more than four years ago for limited
factual development. Adams opposes the motion. (ECF No. 127.) Also before the Court
is Adams’ requests for judicial notice of a case currently pending in the District Court for
the Southern District of Ohio and for further discovery relating to his lethal injection claim.
(ECF No. 109.) Respondent opposes both requests. (ECF No. 126.) For the following
reasons, Respondent’s Motion for Summary Judgment and Adams’ requests for judicial
notice and continued discovery are denied.
I.

Relevant Background
Adams filed his Petition for Writ of Habeas Corpus on May 19, 2006, and an

Amended Petition on June 7, 2006. (ECF Nos. 16 and 17, respectively.) Adams asserted
numerous claims for relief in his petition, all of which this Court denied without granting a
certificate of appealability (“COA”) on April 24, 2007. (ECF No. 60.) On November 13,

2007, the Sixth Circuit granted Adams' application for a COA on two of Adams' claims,
one of which was the constitutionality of Ohio's lethal injection protocol. The court
explained that it granted the COA because the United States Supreme Court had recently
granted certiorari in a case concerning the constitutionality of lethal injection in Kentucky,
Baze v. Rees, 533 U.S. 35 (2008). (ECF No. 63, 3.)
The Supreme Court issued its decision in Baze a year later, “clarif[ying] the
standards that should apply to the merits of Eighth Amendment protocol challenges,” and
addressing lethal injection in particular for the first time. Getsy v. Strickland, 577 F.3d
309, 312 (6th Cir. 2009) (emphasis omitted). The petitioners in Baze sought a declaratory
judgment that Kentucky's three-drug lethal injection protocol, which was similar to Ohio's
at the time, violated the Eighth Amendment’s prohibition against cruel and unusual
punishment. They claimed that “there is a significant risk that the procedures will not be
properly followed–in particular, that the sodium thiopental will not be properly
administered to achieve its intended effect–resulting in severe pain when the other
chemicals are administered.” Id. at 49 (emphasis original). They conceded, however, that
“if performed properly,” the administration of the initial drug would eliminate any
“meaningful” risk of pain, and the execution under the current protocol would be “humane
and constitutional.” Id.
In a plurality opinion, a highly fractured Court recognized that the petitioners’
claim fell within the scope of its Eighth Amendment jurisprudence. It stated, “Our cases
recognize that subjecting individuals to a risk of future harm–not simply actually inflicting
pain–can qualify as cruel and unusual punishment.” Id. The Court observed that the

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Eighth Amendment prohibits the use of an execution procedure that is “sure or very likely
to cause serious illness and needless suffering,” creating an “objectively intolerable risk of
harm.” Id. at 50 (quotation marks and citations omitted) (emphasis original). It cautioned,
however, that “the Constitution does not demand the avoidance of all risk of pain in
carrying out executions," since “[s]ome risk of pain is inherent in any method of
execution–no matter how humane–if only from the prospect of error in following the
required procedure.” Id. at 47. And it noted that it has in fact never invalidated a state's
method of execution as the infliction of cruel and unusual punishment. Id. at 48.
The Court held in Baze that to prevail on a method-of-execution claim, a prisoner
must establish that the state’s lethal injection protocol creates a “demonstrated risk of
severe pain” that is “substantial when compared to the known and available alternatives.”
Id. at 61. It concluded that Kentucky's lethal injection protocol did not meet that standard,
primarily because of its safeguards. But the Court left open the door for further lethal
injection challenges, noting that “[a] State with a lethal injection protocol substantially
similar to the protocol we uphold today would not create a risk that meets this standard.”
Id.
On July 23, 2008, three months after Baze was decided, the Sixth Circuit granted a
COA on a lethal injection claim in another habeas case from this Court, Jones v. Bradshaw,
Case No. 1:03 CV 1192. In an unpublished order, it explained,
In light of the Supreme Court's recent decision in Baze v. Rees, . . . we
believe that “reasonable jurists could debate whether . . . the issues presented were
‘adequate to deserve encouragement to proceed further.’” . . . In Baze, despite the
multitude of fractured opinions, seven Justices agreed that the case turned on the
specific protocols that Kentucky used to ensure that the condemned was
unconscious before the state administered the second and third drugs of the
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three-drug lethal cocktail. For instance, after discussing the safeguards that
Kentucky uses, the Chief Justice's plurality opinion concluded that “[i]n light of
these safeguards, we cannot say that the risks identified by petitioners are so
substantial or imminent as to amount to an Eighth Amendment violation.” . . .
Similarly, Justice Stevens believed it to be an open question as to whether a
different factual record might lead another state's method of lethal injection to be
declared unconstitutional. . . . Justice Breyer concurred because he believed that
Kentucky's safeguards were sufficient to prevent "‘botched' executions." . . .
Justices Ginsburg, with Justice Souter, dissented on the belief that Kentucky's
safeguards were inadequate. . . . Thus, seven Justices adopted the view that a state
could conceivably have protocols (or no protocols at all) that violate the Eighth
Amendment.
Baze, therefore, does not foreclose Jones's Eighth Amendment claim should
he be able to demonstrate that Ohio's safeguards are different than Kentucky's in an
unconstitutional manner. . . . Accordingly, by granting the COA we give counsel
on both sides the opportunity to investigate the important question of whether
Ohio's safeguards are materially different than Kentucky's.
Jones v. Bradshaw, Case No. 07-3766, Document 00611526536, at **3-4 (July 23, 2008)
(citations omitted).
The petitioner in that case, Odraye Jones (“Jones”), next filed a motion to remand
with the Sixth Circuit, requesting, among other things, an opportunity to conduct factual
development on the lethal injection issue. Respondent did not oppose a limited remand to
the district court. On January 30, 2009, the Sixth Circuit ordered that the Jones case be
remanded to the district court “for limited discovery and factual development of the lethal
injection issue.” Jones, Case No. 1:03 CV 1192, ECF No. 128.
Adams then moved the Sixth Circuit on February 6, 2009, to stay its appellate
proceedings and remand his case as well “for limited discovery and fact development.”
(Case No. 07-3688, Doc. No. 00615360614, 13.) He described his request this way:
The Supreme Court in Baze v. Rees did not find that lethal injection was
unconstitutional, but the Court did recognize the implementation of the method of
execution could implicate the Eighth Amendment prohibition against cruel and
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unusual punishment. Therefore, an analysis of Ohio’s lethal injection protocol
under the rubric of the Eighth Amendment jurisprudence is valid. This Court
should remand the case to the [district court] for limited discovery and fact
development.
In his Reply Brief, he stated, “What is clear from even this rather cursory review is
that there are significant issues and differences between Ohio’s protocols and Kentucky’s
protocols that should give this Court serious concern. Further factual development is the
only meaningful way to explore those differences and address these concerns.” (Case No.
07-3688, Doc. No. 00615389260, 7.)
The Sixth Circuit granted Adams' motion to stay shortly thereafter and remanded
the case to this Court “for factual development on lethal injection.” (ECF No. 66.) On
April 16, 2009, Respondent filed a motion with this Court to dismiss the lethal injection
claims in both Adams and Jones on the ground that the claim is not cognizable in habeas.
The Court denied the motions on September 8, 2009, holding that the authority upon which
Respondent relied predated Baze, and that, because the Sixth Circuit remanded this matter
for the limited purpose of “factual development,” the Court had only limited jurisdiction
and was therefore precluded from deciding the merits of the motion. (ECF Nos. 70 and 76,
respectively.)
Respondent then moved to certify the ruling for interlocutory appeal and stay the
proceedings. (ECF No. 78.) On March 4, 2010, this Court granted Adams' motion for
interlocutory appeal regarding the effect of Baze on lethal injection claims, denied
certification on its finding that it lacked jurisdiction to hear the merits of the motion, and
granted the motion to stay the proceedings until the Sixth Circuit had ruled on whether it
will hear Respondent's interlocutory appeal. (ECF No. 80.)
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The Sixth Circuit granted Respondent's petition for leave to appeal this Court's
ruling on the motion to dismiss on October 19, 2010, and issued its ruling on July 19,
2011.1 The court affirmed this Court’s denial of Respondent’s motion to dismiss and held
that Adams' method-of-execution challenge was cognizable on habeas. It again remanded
the case to this Court “in accordance with this court's February 13, 2009 order.” (ECF No.
85.) The Sixth Circuit denied Respondent's petition for rehearing on September 7, 2011.
(ECF No. 86.)
On March 27, 2012, after conferring with counsel for both parties, the Court
ordered Respondent to produce to Adams’ habeas counsel all discovery materials it had
produced, and copies of transcripts of all hearings conducted, in the § 1983 action in the
United States District Court for the Southern District of Ohio, Cooey v. Strickland, Case
No. 04 CV 1156 (now entitled In Re: Ohio Execution Protocol Litigation, Case No. 2:11
CV 1016 (“In re OEPL”)), in which Adams and many other death row inmates are
challenging Ohio’s lethal injection protocol. The Court also ordered the parties to file
necessary pleadings with the Court within one hundred and eighty days after discovery was
complete. (ECF No. 94.) After having requested and received numerous extensions of
time, the parties completed the ordered discovery and submitted briefs to the Court on
April 12, 2013.
Adams filed a “Pleading Submitted pursuant to the Court’s order of March 27,

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Respondent did not appeal the ruling in Jones. But Jones moved to stay the
proceedings until the Sixth Circuit had ruled on whether it will hear the
interlocutory appeal filed by Adams, and the Court granted the motion. (ECF No.
147.)
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2012.” (ECF No. 109.) In it, he requests that the Court take judicial notice of In re OEPL.
(Id. at 15-18.) Adams also seeks to continue discovery, so that he may investigate the
psychological impact of Ohio’s deviations from, and changes to, its lethal injection
protocol and the botched executions, and whether “not being sure how his death sentence
will be carried out” constitutes cruel and unusual punishment. (Id. at 2.) Specifically, he
wants:
to determine the extent to which: (a) Mr. Adams’s psychological, mental, physical,
and emotional concerns can be attributed to the changing protocol, deviations from
the established protocol, and botched executions; (b) these ailments are shared by
other inmates; (c) [and] other inmates’s [sic] concerns and ailments can be
attributed to the changing protocol, deviations from the established protocol, and
botched executions . . . .
(Id. at 17.) He offers the following “proposed avenues of discovery”:
1.

Retain an expert to devise a test that can identify those inmates who are
experiencing physical and mental symptoms as a result of an uncertainty
over the method by which lethal injection is practiced in Ohio and its
frequent problems;

2.

A mental health professional, such as a psychiatrist or psychologist to assess
the fears of each inmate and the degree to which they are attributable to the
uncertainty over how their death sentence will be carried out;

3.

An experienced emergency room physician or phlebotomist to identify those
inmates who have collapsed veins who may have a heightened fear of
difficulties finding a vein because of prior intravenous drug use; and

4.

Other means of identifying those characteristics of lethal injection in Ohio
that affect the conditions of confinement that a period of discovery would
reveal.

(Id. at 17-18.) Respondent objects that any further factual development is unnecessary to
adjudicate Adams’ lethal injection claim. (ECF No. 126.)
Respondent filed a Motion for Summary Judgment. (ECF No. 110.) He asserts that

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he is entitled to judgment as a matter of law on the following grounds: Adams’ claim is
procedurally defaulted; this Court may not consider any factual development outside the
state court record in adjudicating the merits of the claim; there is no clearly established
United States Supreme Court precedent supporting his claim; Adams can only bring a
general attack on lethal injection in habeas; and relief is precluded under Baze and Cooey II
v. Strickland, 589 F.3d 210 (6th Cir. 2009), a Sixth Circuit case finding a claim that Ohio’s
lethal injection protocol is unconstitutional under Baze unlikely to succeed on its merits.
(Id. at 1.) Adams opposes Respondent’s motion, arguing that this Court lacks jurisdiction
to rule on the motion. (ECF No. 127.)
II.

Analysis
A.

Respondent’s Motion for Summary Judgment

Respondent requests through his Motion for Summary Judgment that this Court
dismiss Adams’ lethal injection claim as a matter of law. As this Court explained in
denying Respondent’s Motion to Dismiss, it lacks jurisdiction to rule on a dispositive
motion regarding a claim that currently is on appeal before the Sixth Circuit.
The filing of a notice of appeal transfers jurisdiction of the merits of the appeal to
the appellate court. Marrese v. Am. Academy of Orthopaedic Surgeons, 470 U.S. 373, 379
(1985). Although a district court retains jurisdiction over limited matters even after the
notice is filed, such as questions regarding the physical custody of a criminal defendant, it
may not adjudicate on issues that “affect the matters involved in the appeal itself.”
Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992).
Ruling on Adams’ lethal injection claim would affect the merits of the appeal of an

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issue upon which the Sixth Circuit has granted a certificate of appealability. The Sixth
Circuit remanded this case for the limited purpose of “factual development on lethal
injection" to assist it in its appellate review of Adams’ lethal injection claim. (ECF No.
66.) The Court must act in accordance with that mandate as well as within the limited
jurisdiction it retains over this matter. Respondent’s Motion for Summary Judgment,
therefore, is denied.
B.

Adams’ Request for Judicial Notice

Adams makes two requests of the Court. First, he asks that the Court take judicial
notice of In re OEPL. (ECF No. 109, 15.) The Court finds this unnecessary. Pursuant to
this Court’s Order of March 27, 2012, the State already has produced to Adams “all
discovery materials it produced to the plaintiffs” in In re OEPL and transcripts of all
hearings conducted in that case. (ECF No. 94.) Any further notice of, or reliance upon, the
findings of the Southern District Court in that action is for the Sixth Circuit to determine in
its resolution of Adams’ claim.
C.

Adams’ Request for Continued Discovery

Adams’ second request is for further discovery. Habeas Corpus Rule 6(a) permits a
judge, for good cause, to authorize a party to conduct discovery under the Federal Rules of
Civil Procedure, and also to limit the extent of discovery. Hab. Corp. R. 6(a). The scope
of discovery normally permitted under the federal civil rules is expansive. Rule 26(b)
provides:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to
any party’s claim or defense–including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity
and location of persons who know of any discoverable matter. For good cause, the
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court may order discovery of any matter relevant to the subject matter involved in
the action. Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible evidence.
Fed. R. Civ. P. 26(b)(1). The Rules require the court, however, to limit otherwise
permissible discovery in some circumstances. Rule 26(b)(2)(C) states, “On motion or on
its own, the court must limit the frequency or extent of discovery otherwise allowed by
these rules . . . if it determines that . . . the burden or expense of the proposed discovery
outweighs its likely benefit, considering the needs of the case, the amount in controversy,
the parties’ resources, the importance of the issues at stake in the action, and the
importance of the discovery in resolving the issues.” Fed. R. Civ. P. 26(b)(2)(C)(iii)
(emphasis added).
Bearing this standard in mind, the Court finds that the burden or expense of the proposed
discovery outweighs the meager benefit that Adams’ requested discovery would contribute
to his claim under Baze–the purpose of the Sixth Circuit’s remand for “limited factual
development.” Adams’ request for continued discovery, therefore, must be denied.
As the Sixth Circuit explained in the related Jones case, it remanded the
petitioner’s lethal injection claim for factual development of “the important question of
whether Ohio's safeguards are materially different than Kentucky's.” Adams himself, in
requesting the remand, stated that the purpose of the discovery was to explore “the
significant issues and differences between Ohio's protocols and Kentucky's protocols that
should give this Court serious concern.” With this new discovery request, however,
Adams’ claim has morphed from focusing on the implementation and risk of future
maladministration of lethal injection (the issue in Baze) to the “psychological, mental,

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physical, and emotional” impact of Ohio’s past deviations from, and changes to, its lethal
injection protocol and its botched executions. This new claim is not the type of method-ofexecution challenge addressed in Baze, and the discovery requested exceeds the scope of
the Sixth Circuit’s remand.
As Respondent points out, the Supreme Court has distinguished Eighth Amendment
claims based upon maladministration from those based on the “psychological strain” of
waiting for an execution. Louisiana ex. rel. Francis v. Resweber, 329 U.S. 459 (1947).
The Court, in a plurality opinion upholding a second attempt of an execution after a
mechanical malfunction had interfered with the first attempt, stated, “The cruelty against
which the Constitution protects a convicted man is cruelty inherent in the method of
punishment, not the necessary suffering involved in any method employed to extinguish
life humanely.” Id. at 464. Indeed, the Supreme Court cited Resweber in Baze for the
proposition that “an isolated mishap alone does not give rise to an Eighth Amendment
violation, precisely because such an event, while regrettable, does not suggest cruelty, or
that the procedure at issue gives rise to a ‘substantial risk of serious harm.’” Baze, 553
U.S. at 50. Moreover, circuit courts consistently have rejected analogous so-called
“Lackey claims,” named for the death row inmate who argued that the psychological harm
caused by lengthy delays in executions is cruel and unusual punishment under the Eighth
Amendment. See Shisinday v. Quarterman, 511 F.3d 514, 526 (5th Cir. 2007); Free v.
Peters, 50 F.3d 1362, 1362 (7th Cir. 1995) (per curiam); Smith v. Mahoney, 611 F.3d 978,

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998 (9th Cir. 2010).2
Even if Adams’ new formulation of his claim did fit within Baze, it is doubtful that
the psychological harm he complains of would constitute the “severe pain" or “serious
illness and needless suffering” referenced in Baze and other Eighth Amendment cases.
Baze, 553 U.S. at 50, 61. Indeed, as the Court noted in Baze, it has never held that an
inmate met the “heavy burden” of demonstrating that a state’s execution protocol is
“cruelly inhumane” in violation of the Constitution. Id. at 48, 53 (quoting Gregg v.
Georgia, 428 U.S. 153, 175 (1976)). And circuit courts, including the Sixth Circuit, have
nearly uniformly rejected challenges to state lethal injection protocols in applying Baze.
See Cooey II v. Strickland, 589 F.3d 210, 216 (6th Cir. 2009) (holding that death row inmate
had not demonstrated likelihood of success on merits of Eighth Amendment claim
challenging Ohio's lethal injection protocol under Baze because, “[a]lthough Ohio’s new
protocol may not be perfect, it conforms with the Constitution’s prohibition on cruel and
unusual punishment, and the record indicates that it is a decided improvement on the
protocol that Ohio has utilized in the past”).3

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Although, as Adams points out, many of these courts note that the delays are
caused at least in part by the inmates themselves; Adams’ mental pain is not. See
Johns v. Bowersox, 203 F.3d 538, 547 (8th Cir. 2000); Jones v. Gibson, 206 F.3d
946, 959 n.6 (10th Cir. 2000).

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See also Jackson v. Danberg, 594 F.3d 210, 224-29 (3d Cir. 2010) (execution by
state’s three-drug lethal injection not cruel and unusual because no evidence of
substantial risk of serious harm); Emmet v. Johnson, 532 F.3d 291, 300 (4th Cir.
2008) (same); Raby v. Livingston, 600 F.3d 552, 557-61 (5th Cir. 2010) (execution
by state’s lethal injection protocols not cruel and unusual because state’s
safeguards sufficient and defendant failed to show risk of severe pain); Nooner v.
Norris, 594 F.3d 592, 601-08 (8th Cir. 2010) (execution by state’s three-drug
(continued...)
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Here, the Court does not find that the slight value the proposed discovery may have
in helping Adams meet the “heavy burden” of proving this claim outweighs its significant
burden and expense. It is true that the issues at stake in this case, and all capital cases, are
exceedingly important. See, e.g., Garner v. Florida, 430 U.S. 349, 357 (1977) (“[D]eath is
a different kind of punishment from any other which may be imposed in this country.”);
Strickland v. Washington, 466 U.S. 668, 704 (1984) (Brennan, J., concurring in part and
dissenting in part) (“[W]e have consistently required that capital proceedings be policed at
all stages by an especially vigilant concern for procedural fairness and for the accuracy of
factfinding.”); Burger v. Kemp, 483 U.S. 776, 785 (1987) (“Our duty to search for
constitutional error with painstaking care is never more exacting than it is in a capital
case.”). But the interests in finality and wise judicial administration also are pressing. See,
e.g., McCleskey v. Zant, 499 U.S. 467, 491 (1991) (“Neither innocence nor just punishment
can be vindicated until the final judgment is known.”); Calderon v. Thompson, 523 U.S.
538, 556 (1998) (“Only with an assurance of real finality can the State execute its moral
judgment in a case. Only with real finality can the victims of crime move forward knowing
the moral judgment will be carried out."). Adams’ discovery request, therefore, is denied.
III.

Conclusion

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(...continued)
lethal injection not cruel and unusual because no evidence of substantial risk of
serious harm); Cook v. Brewer, 637 F.3d 1002, 1006 (9th Cir. 2011) (execution by
lethal injection not cruel and unusual because petitioner’s claim that sodium
theopental would cause unconstitutional suffering was merely speculative);
DeYoung v. Owens, 646 F.3d 1319, 1325-28 (11th Cir. 2011) (execution by state's
three-drug lethal injection not cruel and unusual because execution did not
proceed to second drug until inmate was fully unconscious).
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Accordingly, the Court hereby denies Respondent’s Motion for Summary
Judgment. (ECF No. 110.) It also denies Petitioner’s requests for judicial notice of In re:
Ohio Execution Protocol Litigation and for further discovery. (ECF No. 109.) As the
Sixth Circuit Court of Appeals’ Order of February 13, 2009 is now satisfied, this case is
hereby transferred to that court for further proceedings.
IT IS SO ORDERED.

s/ David A. Katz
DAVID A. KATZ
U. S. DISTRICT JUDGE

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