Broom v. Bobby
Filing
38
Memorandum of Opinion and Order. Petitioner Romell Broom's Amended Petition for Writ of Habeas Corpus (Related doc # 18 ) is denied. The Court further certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decisio n could be taken in good faith as to Brooms first and second claims for relief and the Court issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b) as to those claims only. As to the remaining claims, the Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). Judge Christopher A. Boyko on 3/21/2019. (H,CM)
Case: 1:10-cv-02058-CAB Doc #: 38 Filed: 03/21/19 1 of 71. PageID #: 5035
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
Romell Broom,
Petitioner,
-vsCharlotte Jenkins, Warden,
Respondent.
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)
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)
)
)
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Case No. 1:10 CV 2058
JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
AND ORDER
INTRODUCTION
On September 15, 2009, the State of Ohio attempted to execute Petitioner Romell
Broom by lethal injection. Broom was sentenced to death in 1985 for the rape and murder
of Tryna Middleton. However, the execution team could not access a vein to administer
the lethal drugs – despite more than a dozen attempts over two hours – and the procedure
was aborted. The State intends to try again in June 2020. Broom has filed in this Court a
second-in-time Petition and Amended Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254, challenging the constitutionality of his death sentence and seeking to bar a
second execution attempt. (Docs. 1, 18.) Respondent Warden Charlotte Jenkins has filed a
Return of Writ to the Amended Petition (Doc. 21.) and Broom has filed a Traverse. (Doc.
30.) For the following reasons, the Court denies Broom’s Amended Petition.
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RELEVANT PROCEDURAL HISTORY
A.
Broom’s Conviction and Initial State and Federal Challenges
Broom was convicted by a jury and sentenced to death in October 1985 in an Ohio
state court for the rape and murder of Tryna Middleton. See State v. Broom, 40 Ohio St. 3d
277, 277-80 (Ohio 1988) (providing a detailed account of Broom’s crimes and
prosecution). Broom’s conviction and sentence were affirmed on direct appeal. See State
v. Broom, No. 51237, 1987 WL 14401 (Ohio Ct. App. July 23, 1987); Broom, 40 Ohio St.
3d at 280; Broom v. Ohio, 490 U.S. 1075 (1989). He was unsuccessful in state postconviction proceedings. See State v. Broom, No. 72581, 1998 WL 230425 (Ohio Ct. App.
May 7, 1998); State v. Broom, 83 Ohio St. 3d 1430 (Ohio 1998).
Broom then sought federal habeas relief. In June 1999, he filed a Petition for Writ
of Habeas Corpus in this Court, asserting thirty grounds for relief. (See Case No. 1:99 CV
30 (“Habeas 1"), Doc. 13.) After conducting an evidentiary hearing on certain of his
claims in January 2002 (see Habeas 1, Docs. 100-05), another judge on this Court denied
Broom’s Petition in August 2002 (Habeas 1, Doc. 113).1 The Sixth Circuit Court of
Appeals affirmed that ruling. Broom v. Mitchell, 441 F.3d 392 (6th Cir. 2006), reh’g and
reh’g en banc denied (Aug. 9, 2006). The United States Supreme Court denied certiorari.
Broom v. Mitchell, 549 U.S. 1255 (2007), reh’g denied, 549 U.S. 1363 (2007).
Soon after, Broom returned to state court and filed a successor Petition for PostConviction Relief in the trial court in which he asserted among other things, a claim under
1
Judge Kathleen O’Malley initially presided over this case. The case was transferred to
Judge Christopher A. Boyko on November 14, 2011. (Doc. 4.)
2
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Brady v. Maryland, 373 U.S. 83 (1963).2 See State v. Broom, No. 91297, 2009 WL
2263824, at *4 (Ohio Ct. App. July 30, 2009). Broom’s Petition ultimately was denied.
See id. (reversing trial court’s dismissal of petition); State v. Broom, 123 Ohio St. 3d 114
(Ohio 2009) (reversing court of appeals), reconsideration denied, 123 Ohio St. 3d 1475
(Ohio 2009).
Broom then filed a Motion in this Court seeking relief from the Court’s earlier
judgment dismissing his Petition so that the Court could reopen the case and address the
Brady claim that was the subject of his post-conviction review. (Habeas 1, Doc. 133.) The
Court denied the Motion. (Habeas 1, Doc. 141.) The Sixth Circuit affirmed that judgment.
(Habeas 1, Doc. 145.)
B.
The Failed Execution Attempt
In the midst of Broom’s post-conviction proceedings, on April 22, 2009, the Ohio
Supreme Court set Broom’s execution date for September 15, 2009. See State v. Broom,
122 Ohio St. 3d 1497 (Ohio 2009).
The execution, however, was not carried out. Despite repeated attempts over two
hours, the execution team could not access a vein to deliver the lethal injection. The Ohio
Supreme Court set forth the following facts relating to the failed execution attempt:
Facts of September 15, 2009
Broom was transported to the Southern Ohio Correctional Facility
(“Lucasville”) on September 14, 2009, in anticipation of his execution
2
In Brady, the Supreme Court held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material either to
guilt or punishment.” Brady, 373 U.S. at 87. Broom raised this claim in his first federal habeas
Petition, but this Court declined to review it because Broom had not exhausted it in state courts.
(See Habeas 1, Doc. 113 at 43-49.)
3
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scheduled for the next day. Upon his arrival at Lucasville, a nurse and a
phlebotomist conducted a vein assessment and found that Broom's right-arm
vein appeared accessible, but his left-arm vein seemed less so. Prison officials
communicated this information to Edwin C. Voorhies Jr., the regional director
for the Office of Prisons of the Ohio Department of Rehabilitation and
Correction (“ODRC”), and the medical team assured him that this would not
present a problem.
At 1:59 p.m. on September 15, the warden finished reading the death warrant
to Broom. One minute later, Team Members 9 (a female) and 21 (a male)
entered the holding cell to prepare the catheter sites.
Team Member 9 made three attempts to insert a catheter into Broom's left arm
but was unable to access a vein. At the same time, Team Member 21 made
three unsuccessful stabs into Broom's right arm. After a short break, Member
9 made two more insertions, the second of which caused Broom to scream
aloud from the pain.
Member 21 managed to insert the IV catheter into a vein, but then he lost the
vein and blood began running down Broom's arm. When that occurred,
Member 9 rushed out of the room, saying “no” when a security officer asked
if she was okay.
Director Voorhies testified that he could tell there was a problem in the first 10
to 15 minutes. Warden Phillip Kerns saw the team make six or seven attempts
on Broom's veins during the same 10–to–15–minute period. According to
Kerns, the team members did hit veins, but as soon as they started the saline
drip, the vein would bulge, making it unusable.
About 15 minutes into the process, Kerns and Voorhies saw Member 9 leave
the holding cell. Voorhies described her as sweating “profusely” and heard her
say that she and Member 21 had both accessed veins, but the veins “blew.”
Member 17 then entered the holding cell and made “several attempts” to access
a vein in Broom's left arm. Simultaneously, Member 21 continued his attempts
on Broom's right arm.
Terry Collins, who was then the director of the ODRC, called a break about 45
minutes into the process to consult with the medical team. The break lasted 20
to 25 minutes. The medical team reported that they were gaining IV access but
could not sustain it when they tried to run saline through the line. They
expressed “clear concern” about whether they would get usable veins. But
because they said that there was a reasonable chance of establishing venous
access, the decision was made to continue.
4
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By this time, Broom was in a great deal of pain from the puncture wounds,
which made it difficult for him to move or stretch his arms. The second session
commenced with three medical team members—9, 17, and 21—examining
Broom's arms and hands for possible injection sites. For the first time, they also
began examining areas around and above his elbow as well as his legs. They
also reused previous insertion sites, and as they continued inserting catheter
needles into already swollen and bruised sites, Broom covered his eyes and
began to cry from the pain. Director Voorhies remarked that he had never
before seen an inmate cry during the process of venous access.
After another ten minutes or so, Warden Kerns asked a nurse to contact the
Lucasville physician to see if she would assess Broom's veins and offer advice
about finding a suitable vein. Broom later stated that he saw “an Asian
woman,” whom he erroneously identified as “the head nurse,” enter the
chamber. Someone handed her a needle, and when she inserted it, she struck
bone, and Broom screamed from the pain. At the same time, another team
member was attempting to access a vein in Broom's right ankle.
The Lucasville physician confirmed that she came to Broom's cell, examined
his foot, and made one unsuccessful attempt to insert a needle but quickly
concluded that the effort would not work. By doing so, she disobeyed the
warden's express instructions to observe only and not get involved. The
physician examined Broom's foot but could see no other vein.
After the physician departed, the medical team continued trying to establish an
IV line for another five to ten minutes. In all, the second session lasted
approximately 35 to 40 minutes.
During the second break, the medical team advised that even if they
successfully accessed a vein, they were not confident that the site would remain
viable throughout the execution process. The governor's office had signaled its
willingness to grant a reprieve, and so the decision was made to halt the
execution for the day.
Dr. Jonathan Groner examined and photographed Broom three or four days
afterward. The photographs show 18 injection sites: one on each bicep, four on
his left antecupital (forearm), three on his right antecupital, three on his left
wrist, one on the back of his left hand, three on the back of his right hand, and
one on each ankle. Prison officials later confirmed that he was stuck at least 18
times.
Dr. Mark Heath met with Broom one week after the event. Dr. Heath observed
“considerable bruising” and a lot of “deep and superficial” tissue damage
consistent with multiple probing. Dr. Heath also posited that the actual number
5
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of catheter insertions was much higher than the number of needle marks,
because according to what Broom told him, the medical team would withdraw
the catheter partway and then reinsert it at a different angle, a procedure known
as “fishing.”
State v. Broom, 146 Ohio St. 3d 60, 61-63 (Ohio 2016).
C.
Broom’s Initial State and Federal Litigation Challenging Any Further
Execution Attempt
On September 18, 2009, three days after the failed execution, Broom filed a civil
rights action under 42 U.S.C. § 1983 in the United States District Court for the Southern
District of Ohio, challenging Ohio’s lethal injection execution protocol and seeking to
prevent the State from attempting to execute him again. (Case No. 2:09 CV 823 (Ҥ 1983
Case”), Doc. 3).3 In an Amended Complaint, Broom argued, among other things, that a
second execution attempt would violate the Eighth Amendment’s prohibition on cruel and
unusual punishments and the Fifth Amendment right against double jeopardy. (§ 1983
Case, Doc. 40.) See also Broom v. Strickland, 2010 WL 3447741, at *1 (S.D. Ohio Aug.
27, 2010) (Frost, J.). The defendants moved to dismiss the Amended Complaint, which the
court partially granted on August 27, 2010, severing and dismissing Broom’s Eighth
Amendment claim seeking to bar a second execution attempt without prejudice, but
retaining jurisdiction of Broom’s other claims challenging the constitutionality of Ohio’s
lethal injection execution protocol. Id. at *2-4. The court stated that “[t]here is no doubt
that the Eighth Amendment applies to Plaintiff’s situation[,]” id. at *2, but that “habeas
presents the proper vehicle to address the constitutional issues arising from the failed
3
On the same day, Broom filed an action for a writ of habeas corpus in the Ohio Supreme
Court seeking to prevent any further execution attempts. (Case No. 2009-1686). He later
voluntarily dismissed that action. In re Broom, 123 Ohio St. 3d 1485 (Ohio 2009).
6
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execution attempt and Ohio’s intent to try again[,]” id. at *4.
In 2011, the Southern Ohio District Court consolidated Broom’s § 1983 Case with
other § 1983 lethal-injection litigation into a case with more than one hundred deathsentenced inmates as plaintiffs, entitled In re Ohio Execution Protocol Litigation
(“IOEPL”) (Case No. 2:11 CV 1016). (See Case No. 2:09 CV 823, Doc. 284.)
D.
Second Federal Habeas Corpus Petition
On September 14, 2010, Broom filed the second-in-time Petition for Writ of Habeas
Corpus now before the Court. (Doc. 1.) His Petition asserted three claims for relief, stated
as:
1.
Any further attempts to execute Romell Broom by any means or
methods will violate the U.S. Constitution’s prohibition against cruel
and unusual punishments.
2.
The prohibition against double jeopardy would be violated by another
attempt to execute Romell Broom.
3.
Any further attempts to execute Broom by any means or methods
would violate Broom’s right to substantive due process as guaranteed
by the Fourteenth Amendment to the United States Constitution.
(Doc. 1-1 at 2-3 (capitalization altered).)4
On September 17, 2010, Broom moved to stay the case and hold it in abeyance
pending his exhaustion of available state-court remedies for his constitutional challenges to
any further execution attempt. (Doc. 3.) The Court granted the motion on November 18,
2010. (Doc. 7.)
E.
Exhaustion of State-Court Remedies Relating to a Second Execution
4
All references to page numbers of documents in the Court’s electronic court filing system
(“ECF”) are to the page numbers of the individual ECF documents, not the original page numbers
or ECF “PageID” numbers.
7
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Attempt
1.
State Habeas Action
Meanwhile, on the same day he filed his second federal habeas Petition, September
14, 2010, Broom filed a second state-court habeas action in the Ohio Supreme Court. State
v. Broom (Case No. 2010-1609). He raised four claims, stated as:
1.
Any further attempts to execute Romell Broom will violate the state
and federal constitutional prohibitions against cruel and unusual
punishments and the Ohio law requiring that executions be quick and
painless: Eighth and Fourteenth Amendments to the United States
Constitution; Art. I, Sec. 9, 10, and 16 of the Ohio Constitution; Ohio
Revised Code § 2949.22(A).
2.
Imposition of the death penalty under the circumstances of this case
would violate Article I, Sections 1, 2, 8, 9, 10 and 16 of the Ohio
Constitution.
3.
The prohibition against double jeopardy would be violated by another
attempt to execute Romell Broom: Fifth and Fourteenth Amendments
to the United States Constitution; Art. I, Section 10, Ohio Constitution.
4.
His right to substantive due process would be violated by another
attempt to execute Romell Broom; Fourteenth Amendment to the
United States Constitution; Art. I, Section 16, Ohio Constitution.
(Doc. 37-1 at 13, 16, 17, 18 (capitalization altered).)
The Ohio Supreme Court summarily dismissed the case on December 2, 2010. In
re Broom, 127 Ohio St. 3d 1450 (Ohio 2010). The Supreme Court denied certiorari on
May 2, 2011. Broom v. Bobby, 563 U.S. 977 (2011).
2.
Successive Petition for Post-Conviction and Declaratory Relief
On September 15, 2010, Broom filed a Successive Petition for Post-Conviction and
Declaratory Relief in the state trial court. (Doc. 19-10 at 2-35.) He raised four claims,
stating:
8
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1.
Any further attempts to execute Romell Broom will violate the state
and federal constitutional prohibitions against cruel and unusual
punishments and the Ohio law requiring that executions be quick and
painless: Eighth and Fourteenth Amendments to the United States
Constitution; Ohio Revised Code § 2949.22(A).
2.
Imposition of the death penalty under the circumstances of this case
would violate Article I, Sections 1, 2, 8, 9, 10 and 16 of the Ohio
Constitution.
3.
The prohibition against double jeopardy would be violated by another
attempt to execute Romell Broom: Fifth and Fourteenth Amendments
to the United States Constitution; Art. I, Section 10, Ohio Constitution.
4.
Broom is entitled to a declaratory judgment in his favor.
(Id. at 21, 25, 26, 28.) Broom sought discovery and an evidentiary hearing. (Id. at 29.)
Without conducting a hearing or allowing discovery, the trial court denied Broom’s
Petition on April 7, 2011. (Id. at 369-75.)
Broom filed a timely Notice of Appeal with the state appellate court. (Id. at 37686.) In his appellate brief, he raised the following assignments of error:
1.
The trial court erred when it denied Broom an evidentiary hearing on
his postconviction and declaratory judgment claims.
2.
The trial court erred when it found that the cruel and unusual
punishment clauses of the Eighth and Fourteenth Amendments to the
United States Constitution, and Article I, Sections 9 and 16 of the Ohio
Constitution do not bar another attempt to execute Broom.
3.
Broom’s rights under the Ohio Revised Code § 2949.22(A), Article I,
Sections 1, 2, 8, 9, 10, and 16 of the Ohio Constitution, and the Due
Process Clause of the United States Constitution were violated when
the state failed to conduct Broom’s execution attempt on September 15,
2009[,] in conformity with Ohio law.
4.
The trial court erred when it found that a second attempt to execute
Broom would not violate the prohibitions against being placed twice in
jeopardy for the same offense in the Fifth and Fourteenth Amendments
to the United States Constitution and Article I, Section 10 of the Ohio
9
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Constitution.
5.
The trial court erred when it denied Broom declaratory relief under
Ohio Revised Code § 2721.01 et seq. and Civ. R. 57.
(Doc. 19-11 at 69, 72, 76, 90.)
The state court of appeals affirmed the trial court’s judgment on February 16, 2012,
with one justice dissenting. State v. Broom, No. 96747, 2012 WL 504504 (Ohio Ct. App.
Feb. 16, 2012).
Broom filed a timely Notice of Appeal with the Ohio Supreme Court. (Doc. 19-11
at 3-5.) In an Amended Memorandum in Support of Jurisdiction, he raised the following
six propositions of law:
1.
In an action for postconviction relief, a petition that presents sufficient
operative facts supported by evidence dehors the record meets the
required pleading standard and, to comport with due process and
provide adequate corrective process to the Petitioner, must not be
summarily dismissed without an evidentiary hearing. U.S. CONST.
AMEND. XIV.
2.
The lower courts erred when they found that the cruel and unusual
punishments clauses of the Eighth and Fourteenth Amendments to the
United States Constitution, and Article I, Section 9 of the Ohio
Constitution, do not bar another attempt to execute Broom.
3.
The lower courts denied Broom due process of law, an adequate
corrective process, and his day in court on his “no multiple attempts”
claims when (1) the trial court denied him discovery and a hearing, and
(2) the appellate court, in a case of first impression and without prior
notice to Broom, adopted a new case-specific and fact-based standard
for adjudicating Broom’s unique and rare constitutional claims, and
then refused to remand the case to the trial court so that Broom could
develop evidence and present argument that he meets that new
standard.
4.
The lower courts erred when they found that a second attempt to
execute Broom would not violate the prohibitions against being placed
twice in jeopardy for the same offense in the Fifth and Fourteenth
10
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Amendments to the United States Constitution and Article I, Section 10
of the Ohio Constitution.
5.
The lower courts erred when they denied Broom declaratory relief
under Ohio Rev. Code § 2721.01 et seq. and Civ. R. 57.
6.
The lower courts erred when they found no denial of Broom’s rights
under Ohio Revised Code § 2949.22(A), Article I, Sections 1, 2, 8, 9,
10, and 16 of the Ohio Constitution, and the Due Process Clause of the
Untied States Constitution when the State failed to conduct Broom’s
execution attempt on September 15, 2009 in conformity with Ohio law.
(Doc. 19-11 at 103-05 (capitalization altered).)
The court accepted Broom’s appeal on his Propositions of Law Nos. 2, 3, and 4 on
May 28, 2014. (Id. at 314.) In his merits brief, Broom presented the following three
propositions of law:
1.
The lower courts erred when they found that the Cruel and Unusual
Punishments Clauses of the United States and Ohio Constitutions do
not bar another attempt to execute Broom.
2.
The lower courts erred when (1) the appellate court adopted a new
case-specific and fact-based standard for adjudicating Broom’s unique
and rare constitutional claims, and then refused to remand the case to
the trial court and (2) when the trial court denied him discovery and a
hearing.
3.
The lower courts erred when they found that a second attempt to
execute Broom would not violate the prohibitions against being placed
twice in jeopardy for the same offense in the Fifth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10
of the Ohio Constitution.
(Id. at 320-21 (capitalization altered).)
The Ohio Supreme Court affirmed the state appellate court’s judgment in a 4-3
decision on June 9, 2015, finding no constitutional violations. Broom, 146 Ohio St. 3d 60,
paragraphs 1, 4, 5 of the syllabus.
11
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Broom filed a timely Petition for Writ of Certiorari in the United States Supreme
Court. (Doc. 19-11 at 602.) The Court denied the Petition, with two justices dissenting.
Broom v. Ohio, 137 S. Ct. 590 (2016). Broom petitioned for a rehearing, which also was
denied. Broom v. Ohio, 137 S. Ct. 1138 (2017).
F.
Reinstated Second Federal Habeas Corpus Action
Broom has now returned to this Court. On June 20, 2017, he filed an Amended
Petition for Writ of Habeas Corpus. (Doc. 18.) Respondent filed a Return of Writ on
August 21, 2017. (Doc. 21.)
On September 21, 2017, Broom filed a Motion for Leave to Conduct Discovery
and/or to Expand the Habeas Record. (Doc. 22.) He sought discovery relating to his first
(Eighth Amendment) and third (due process) claims and requested an expansion of the
record. (Doc. No. 22.)5 On September 27, 2017, Broom filed under seal a motion
requesting funding for the assistance of certain experts. (Doc. No. 25.) Respondent
opposed Broom’s request for discovery on October 5, 2017. (Doc. No. 26.) Broom replied
to Respondent’s brief in opposition on October 12, 2017. (Doc. No. 27.)
On April 4, 2018, the Court denied Broom’s Motions without prejudice, subject to
reconsideration or renewal if the Court determines upon further review of the pleadings,
that the claims for which Broom seeks discovery were not adjudicated on the merits but are
5
Specifically, Broom requested information regarding Ohio’s execution practices and
protocols in all executions conducted after his attempted execution in 2009 until the present
through: (1) depositions of the ODRC Director Gary Mohr, Southern Ohio Correctional Facility
Warden Ron Erdos and six “team members” identified by numbers, responsible for carrying out
executions; and (2) documents, records, and transcripts contained in the court record of IOEPL.
(Id. at 14-22.) In addition, or in the alternative, he asked for the record to be expanded to include
IOEPL records. (Id. at 22-23.)
12
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properly preserved for federal habeas review, or the state-court decisions regarding the
claims at issue satisfy AEDPA’s § 2254(d)(1) or (d)(2), or any other reason consideration
of new evidence would be deemed appropriate. (Doc. 28.)
On June 26, 2018, Broom filed a Traverse. (Doc. 30.) On July 10, 2018, he filed a
Motion for an Evidentiary Hearing and/or Motion to Expand the Record, requesting an
evidentiary hearing in the case and renewing his request in his previous Motion to Expand
the Record (Doc. 22), along with certain additional materials. (Doc. 31.) Respondent
opposed that Motion. (Doc. 32.)
PETITIONER’S CLAIMS FOR RELIEF
In his Petition, Broom asserts four claims for relief, stated as follows:
1.
Any further attempts to execute Romell Broom by any means or
methods will violate the U.S. Constitution’s prohibition against cruel
and unusual punishments.
2.
The prohibition against double jeopardy would be violated by another
attempt to execute Romell Broom.
3.
The Ohio state courts denied Broom due process of law, and adequate
corrective process, and his day in court on his federal constitutional
claims.
4.
Any further attempts to execute Broom by any means or methods
would violate Broom’s right to procedural and substantive due process
as guaranteed by the Fourteenth Amendment to the United States
Constitution.
(Doc. 18 at 64, 85, 103, 119 (capitalization altered).)
STANDARDS OF REVIEW
13
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A.
AEDPA Review
Broom’s Amended Petition for Writ of Habeas Corpus is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy,
521 U.S. 320, 336 (1997) (AEDPA governs federal habeas petitions filed after Act’s
effective date). AEDPA, which amended 28 U.S.C. § 2254, was enacted “to reduce delays
in the execution of state and federal criminal sentences, particularly in capital cases, and ‘to
further the principles of comity, finality, and federalism.’” Woodford v. Garceau, 538 U.S.
202, 206 (2003) (quoting (Michael) Williams v. Taylor, 529 U.S. 420, 436 (2000)). The
Act “recognizes a foundational principle of our federal system: State courts are adequate
forums for the vindication of federal rights.” Burt v. Titlow, 571 U.S. 12, 18 (2013). It
therefore “erects a formidable barrier to federal habeas relief for prisoners whose claims
have been adjudicated in state court.” Id. at 19.
One of AEDPA’s most significant limitations on the federal courts’ authority to
issue writs of habeas corpus is found in § 2254(d). That provision forbids a federal court
from granting habeas relief with respect to a “claim that was adjudicated on the merits in
State court proceedings” unless the state-court decision either:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d).
Habeas courts review the “last explained state-court judgment” on the federal claim
14
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at issue. Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991) (emphasis in original). A state
court has adjudicated a claim “on the merits” and AEDPA deference applies, regardless of
whether the state court provided little or no reasoning at all for its decision. “When a
federal claim has been presented to a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.” Harrington v. Richter, 562
U.S. 86, 99 (2011).
“Clearly established Federal law” for purposes of § 2254(d)(1) “is the governing
legal principle or principles set forth by the Supreme Court at the time the state court
renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). It includes “only the
holdings, as opposed to the dicta, of [Supreme Court] decisions.” White v. Woodall, 572
U.S. 415, 419 (2014) (internal quotation marks and citations omitted). The state-court
decision need not refer to relevant Supreme Court cases or even demonstrate an awareness
of them; it is sufficient that the result and reasoning are consistent with Supreme Court
precedent. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam). Also, a state court does not
act contrary to clearly established law when the precedent of the Supreme Court is
ambiguous or nonexistent. See, e.g., Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per
curiam).
A state-court decision is contrary to “clearly established Federal law” under §
2254(d)(1) only “if the state court arrives at a conclusion opposite to that reached by [the
Supreme] Court on a question of law or if the state court decides a case differently than
[the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor,
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529 U.S. 362, 412-13 (2000). Also, “review under § 2254(d)(1) is limited to the record
that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011).
A state-court decision is an “unreasonable determination of the facts” under §
2254(d)(2) only if the court made a “clear factual error.” Wiggins v. Smith, 539 U.S. 510,
528-29 (2003). The petitioner bears the burden of rebutting the state court’s factual
findings “by clear and convincing evidence.” Burt, 571 U.S. at 18; Rice v. White, 660 F.3d
242, 250 (6th Cir. 2011). This requirement mirrors the “presumption of correctness”
AEDPA affords state-court factual determinations, which only can be overcome by clear
and convincing evidence. 28 U.S.C. § 2254(e)(1).6 The Supreme Court has cautioned, “‘a
state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.’” Burt, 571 U.S. at
18 (quoting Wood v. Allen, 558 U.S. 290, 301 (2010)).
Indeed, the Supreme Court repeatedly has emphasized that § 2254(d), as amended
by AEDPA, is an intentionally demanding standard, affording great deference to state-court
adjudications of federal claims. The Court has admonished that a reviewing court may not
“treat[] the reasonableness question as a test of its confidence in the result it would reach
under de novo review,” and that “even a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.” Richter, 562 U.S. at 102; see also Schriro
6
Section 2254(e)(1) provides: “In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of
a factual issue made by a State court shall be presumed to be correct. The applicant shall have the
burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.
§ 2254(e)(1).
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v. Landrigan, 550 U.S. 465, 473 (2007) (“The question under AEDPA is not whether a
federal court believes the state court’s determination was incorrect but whether that
determination was unreasonable – a substantially higher threshold.”). Rather, § 2254(d)
“reflects the view that habeas corpus is a guard against extreme malfunctions in the state
criminal justice systems” and does not function as a “substitute for ordinary error
correction through appeal.” Richter, 562 U.S. at 102-03 (internal quotation marks
omitted). A petitioner, therefore, “must show that the state court’s ruling . . . was so
lacking in justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Id. at 103. This is a
very high standard, which the Court readily acknowledges: “If this standard is difficult to
meet, that is because it is meant to be.” Id. at 102.
But AEDPA “stops short of imposing a complete bar on federal court relitigation of
claims already rejected in state proceedings.” Id. “[E]ven in the context of federal habeas,
deference does not imply abandonment or abdication of judicial review. Deference does
not by definition preclude relief.” Miller-El, 537 U.S. at 340. Rather, “under AEDPA
standards, a federal court can disagree with a state court’s factual determination and
‘conclude the decision was unreasonable or that the factual premise was incorrect by clear
and convincing evidence.’” Baird v. Davis, 388 F.3d 1110, 1123 (7th Cir. 2004) (quoting
Miller-El, 537 U.S. at 340) (Posner, J.). Federal habeas courts may, for example, review de
novo an exhausted federal claim where a state court misapplied a procedural bar and did
not review the claim on the merits. See, e.g., Hill v. Mitchell, 400 F.3d 308, 313 (6th Cir.
2005). They likewise may review de novo claims adjudicated on the merits in state court if
the petitioner meets the criteria for one of § 2254(d)’s exceptions. See, e.g., Wiggins, 539
17
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U.S. at 534 (performing de novo review under Strickland’s second prong because the state
court unreasonably applied the law in resolving Strickland’s first prong).
B.
Exhaustion and Procedural Default
Under AEDPA, state prisoners must exhaust all possible state remedies, or have no
remaining state remedies, before a federal court will review a petition for a writ of habeas
corpus. 28 U.S.C. § 2254(b) and (c); see also Rose v. Lundy, 455 U.S. 509 (1982). This
entails giving the state courts “one full opportunity to resolve any constitutional issues by
invoking one complete round of the State’s established appellate review process.”
O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). In other words, “the highest court in the
state in which the petitioner was convicted [must have] been given a full and fair
opportunity to rule on the petitioner’s claims.” Manning v. Alexander, 912 F.2d 878, 881
(6th Cir. 1990). The exhaustion requirement, however, “refers only to remedies still
available at the time of the federal petition.” Engle v. Isaac, 456 U.S. 107, 125 n.28
(1982). It “does not require pursuit of a state remedy where such a pursuit is clearly
futile.” Wiley v. Sowders, 647 F.2d 642, 647 (6th Cir. 1981).
Procedural default is a related but “distinct” concept from exhaustion. Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006). It occurs when a habeas petitioner fails to
obtain consideration of a federal constitutional claim by state courts because he failed to:
(1) comply with a state procedural rule that prevented the state courts from reaching the
merits of the petitioner’s claim; or (2) fairly raise that claim before the state courts while
state remedies were still available. See generally Wainwright v. Sykes, 433 U.S. 72, 80,
84-87 (1977); Engle, 456 U.S. at 125 n.28; Williams, 460 F.3d at 806.
Where a state court declines to address a prisoner’s federal claim because the
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prisoner has failed to meet a state procedural requirement, federal habeas review is barred
as long as the state judgment rested on “independent and adequate” state procedural
grounds. Coleman v. Thompson, 501 U.S. 722, 729 (1991). To be independent, a state
procedural rule and the state courts’ application of it must not rely in any part on federal
law. Id. at 732-33. To be adequate, a state procedural rule must be “‘firmly established’
and ‘regularly followed’” by the state courts at the time it was applied. Beard v. Kindler,
558 U.S. 53, 60-61 (2009).7
A petitioner also may procedurally default a claim by failing to raise the claim in
state court and pursue it through the state’s “‘ordinary appellate review procedures,’” if, at
the time of the federal habeas petition, state law no longer allows the petitioner to raise the
claim. Williams, 460 F.3d at 806 (quoting O’Sullivan, 526 U.S. at 848); see also Baston v.
Bagley, 282 F. Supp. 2d 655, 661 (N.D. Ohio 2003) (“Issues not presented at each and
7
In Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986), the Sixth Circuit established the now
familiar test to be followed when the state argues that a habeas claim is defaulted because of a
prisoner’s failure to observe a state procedural rule. It is:
First, the federal court must determine whether there is a state procedural rule that is
applicable to the petitioner’s claim and whether the petitioner failed to comply with
that rule. Second, the federal court must determine whether the state courts actually
enforced the state procedural sanction – that is, whether the state courts actually based
their decisions on the procedural rule. Third, the federal court must decide whether
the state procedural rule is an adequate and independent state ground on which the
state can rely to foreclose federal review of a federal constitutional claim. Fourth, if
the federal court answers the first three questions in the affirmative, it would not
review the petitioner's procedurally defaulted claim unless the petitioner can show
cause for not following the procedural rule and that failure to review the claim would
result in prejudice or a miscarriage of justice.
Williams v. Coyle, 260 F.3d 684, 693 (6th Cir. 2001) (citing Maupin, 785 F.2d at 138) (further
citations omitted).
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every level [of the state courts] cannot be considered in a federal habeas corpus petition.”).
Under these circumstances, while the exhaustion requirement is technically satisfied
because there are no longer any state-court remedies available to the petitioner, the
petitioner’s failure to have the federal claims fully considered in the state courts constitutes
a procedural default of those claims, barring federal habeas review. Williams, 460 F.3d at
806, (“Where state court remedies are no longer available to a petitioner because he or she
failed to use them within the required time period, procedural default and not exhaustion
bars federal court review.”); see also Gray v. Netherland, 518 U.S. 152, 161-62 (1996)
(“Because the exhaustion requirement ‘refers only to remedies still available at the time of
the federal petition,’ . . ., it is satisfied ‘if it is clear that [the habeas petitioner’s] claims are
now procedurally barred under [state] law’ . . . .” (internal citations omitted)).
Furthermore, to “fairly present” a claim to a state court, a petitioner must assert
both its legal and factual basis. Williams, 460 F.3d at 806 (citing McMeans v. Brigano, 228
F.3d 674, 681 (6th Cir. 2000)). Most importantly, a “‘petitioner must present his claim to
the state courts as a federal constitutional issue – not merely as an issue arising under state
law.’” Id. (quoting Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984)).
In determining whether a claim is procedurally defaulted and barred from
consideration on federal habeas review, the federal court again looks to the last state court
rendering a reasoned opinion on that claim. Ylst, 501 U.S. at 805. If the state court
“clearly and expressly states that its judgment rests on a state procedural bar,” then the
claim is procedurally defaulted.8 Harris v. Reed, 489 U.S. 255, 263 (1989). Conversely, if
8
Where a later state-court decision rests upon a prohibition against further state review,
the decision “neither rests upon procedural default nor lifts a pre-existing procedural default, [and]
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the last state court presented with the claim reaches its merits, then the procedural bar is
removed and the federal habeas court may consider the merits of the claim in its review.
Ylst, 501 U.S. at 801.
A petitioner may overcome procedural default by demonstrating cause for the
default and actual prejudice that resulted from the alleged violation of federal law, or that
there will be a “fundamental miscarriage of justice” if the claim is not considered.
Coleman, 501 U.S. at 750. “‘[C]ause’ under the cause and prejudice test must be
something external to the petitioner, something that cannot be fairly attributed to him.” Id.
To establish prejudice, a petitioner must demonstrate that the constitutional error “worked
to his actual and substantial disadvantage.” Perkins v. LeCureux, 58 F.3d 214, 219 (6th
Cir. 1995) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). “A fundamental
miscarriage of justice results from the conviction of one who is ‘actually innocent.’”
Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (citing Murray v. Carrier, 477
U.S. 478, 496 (1986)).
A fundamental miscarriage of justice in capital cases also means actually innocent
of the death penalty. See Sawyer v. Whitley, 505 U.S. 333, 347 (1992). In this sense, “[t]o
show ‘actual innocence’ one must show by clear and convincing evidence that, but for the
constitutional error, no reasonable jury would have found the petitioner eligible for the
death penalty under the applicable state law.” Id. at 336. This “actual innocence” standard
“must focus on the elements that render a defendant eligible for the death penalty.” Hutton
its effect upon the availability of federal habeas is nil . . . .” Ylst, , 501 U.S. at 804 n.3. In that
case, habeas courts “look through” that later decision to the prior reasoned state-court judgment.
Id. at 805 (“state rules against [a] superfluous recourse [of state habeas proceedings] have no
bearing upon [a petitioner’s] ability to raise the [federal] claim in federal court”).
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v. Mitchell, 839 F.3d 486, 498 (6th Cir. 2016) (citing Sawyer, 505 U.S. at 347).
C.
Cognizability
To the extent a claim asserted in a federal habeas petition alleges state-law
violations, it is not cognizable on federal habeas review and should be dismissed on that
basis. “It is not the province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal court is
limited to deciding whether a conviction violated the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991) (citing 28 U.S.C. § 2241); see
also Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas corpus relief does not lie
for errors of state law.”); Engle v. Isaac, 456 U.S. 107, 121 n.21 (1982) (“We have long
recognized that a ‘mere error of state law’ is not a denial of due process.”) (citation
omitted)).
Moreover, “a state court’s interpretation of state law, including one announced on
direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (citing Estelle, 502 U.S. at 67-68). A federal
habeas court does not function as an additional state appellate court reviewing state courts’
decisions on state law or procedure. Allen v. Morris, 845 F.2d 610, 614 (6th Cir. 1988).
State-court rulings on issues of state law may, however, “rise to the level of due
process violations [if] they ‘offend[] some principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.’” Seymour v. Walker, 224
F.3d 542, 552 (6th Cir. 2000) (quoting Montana v. Egelhoff, 518 U.S. 37, 43 (1996)). But
they must be “so egregious that [they] result in a denial of fundamental fairness.” Bugh v.
Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Fundamental fairness under the Due Process
22
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Clause is compromised where “the action complained of . . . violates those ‘fundamental
conceptions of justice which lie at the base of our civil and political institutions,’ . . . and
which define ‘the community’s sense of fair play and decency.’” Dowling v. United States,
493 U.S. 342, 352 (1990) (internal citations omitted). Courts, therefore, “‘have defined the
category of infractions that violate ‘fundamental fairness’ very narrowly.’” Id. (quoting
Wright v. Dallman, 999 F.2d 174, 178 (6th Cir. 1993)).
DISCUSSION
I.
AEDPA Deference or De Novo Standard of Review
As a preliminary matter, the Court must address the “threshold question” of the
proper standard of review governing Broom’s claims, or, more precisely, whether AEDPA
deference or de novo review applies. Robinson v. Howes, 663 F.3d 819, 822 (6th Cir.
2011). As noted above, AEDPA’s deferential standard of review “applies only when a
federal claim was ‘adjudicated on the merits in State court.’” Johnson v. Williams, 568
U.S. 289, 302 (2013) (emphasis in original) (quoting 28 U.S.C. § 2254(d)). Claims that
were not resolved “on the merits” in state court receive the pre-AEDPA standard of review:
de novo for questions of law (including mixed questions of law and fact) and clear error for
questions of fact. Robinson, 663 F.3d at 823.
“A judgment is normally said to have been rendered ‘on the merits’ only if it was
‘delivered after the court . . . heard and evaluated the evidence and the parties’ substantive
arguments.” Williams, 568 U.S. at 302 (emphasis in original) (quoting Black’s Law
Dictionary 1199 (9th ed. 2009)). “Merits” in this context “is defined as ‘[t]he intrinsic
rights and wrongs of a case as determined by matters of substance, in distinction from
matters of form.’” Id. (emphasis in original) (quoting Webster’s New International
23
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Dictionary 1540 (2d ed. 1954)).
Furthermore, “[w]hen a federal claim has been presented to a state court and the
state court has denied relief, it may be presumed that the state court adjudicated the claim
on the merits in the absence of any indication or state-law procedural principles to the
contrary.” Harrington v. Richter, 562 U.S. 86, 99 (2011). The Supreme Court has found
this presumption rebutted, for example, where there was clear evidence “that a federal
claim was inadvertently overlooked in state court” and was not “evaluated based on the
intrinsic right and wrong of the matter.” Williams, 568 U.S. at 303.
Broom argues that this Court should review the claims he presents here de novo
because, in denying him an “adequate corrective process” to litigate those claims, Ohio
courts did not adjudicate the claims on the merits and they do not fall within § 2254(d)’s
purview. (Doc. 18 at 40-44; Doc. 30 at 32-34.) The state courts, he alleges, “failed to
allow meaningful factual development, failed to utilize reliable means of finding facts, and
made their determinations on an incomplete record.” (Doc. 18 at 40-41.)9
Broom focuses almost exclusively on the Ohio Supreme Court’s reliance on extrarecord evidence in addressing his Eighth Amendment claim. In considering whether the
State was likely to violate its execution protocol and cause severe pain in carrying out a
9
Broom made essentially the same argument to this Court in a Motion for Discovery (Doc.
22). There, he asserted that discovery relating to his constitutional claims was not barred by
Cullen v. Pinholster, 563 U.S. 170, 181 (2011), which limits habeas courts’ “review under §
2254(d)(1) . . . to the record that was before the state court that adjudicated the claim on the
merits,” because, due to the state courts’ inadequate process, the Ohio Supreme Court did not
adjudicate the claims on the merits. (See Doc. 22 at 13-14.) This Court rejected that argument,
finding the claims at issue had been adjudicated on the merits in state court and denied the
Motion. (See Doc. 28.) In his Traverse, Broom reasserts and incorporates by reference the
arguments he presented in support of that Motion. (Doc. 30 at 33.)
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second attempt at Broom’s execution, the Ohio Supreme Court stated:
While we acknowledge that the state failed to follow the protocol in 2009
[during the Broom execution attempt], we cannot ignore what has transpired
since then. The state has executed 21 death-row inmates since the attempted
execution of Broom. See Ohio Department of Rehabilitation and Correction,
Ohio Executions – 1999 to Present, http://www.drc.ohio.gov/web/executed/
executed25.htm (last updated Jan. 16, 2014).
Broom, 146 Ohio St. 3d at 73.
This evidence not only was outside the record, Broom argues, it also “was no
longer relevant or probative against Broom’s claims” because shortly after Broom’s failed
execution attempt, Ohio changed its execution protocol in significant respects. (Doc. 18 at
41-43.) Broom notes that a dissent to the Ohio Supreme Court’s opinion criticized the
majority for “seeking evidence outside the record to prove that the state has cured the
problems in its execution procedures and seizing on an execution protocol that is no longer
in effect.” Broom, 146 Ohio St. 3d at 74-75 (French, J., dissenting). Broom further asserts
the information was “critically incomplete” due to “critical events” that occurred in
October 2016, several months after the court issued its decision, when Ohio again changed
its execution protocol. (Doc. 22 at 11-13.)
Broom cites as support for his argument Gordon v. Braxton, 780 F.3d 196 (4th Cir.
2015), and Winston v. Kelly (Winston I), 592 F.3d 535 (4th Cir. 2010). (Doc. 30 at 33.) In
those cases, the Fourth Circuit held that a state-court judgment on a “materially incomplete
record” is not an adjudication on the merits for purposes of § 2254(d), particularly when
the state court unreasonably refused to permit further factual development of the claim.
Gordon, 780 F.3d at 202; Winston I, 592 F.3d at 555-56; see also Winston v. Pearson
(Winston II), 683 F.3d 489, 496 (4th Cir. 2012). In Brown v. Smith, 551 F.3d 424, 428-29
25
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(6th Cir. 2008), the Sixth Circuit similarly found no state-court adjudication of a Brady
claim where the materials “that form[ed] the basis of the claim” were not before the court.
As Respondent argues, however, the Sixth Circuit rejected this approach in
Ballinger v. Prelesnik, 709 F.3d 558 (6th Cir. 2013). (See Doc. 26 at 9-10.) While the
court acknowledged in Ballinger that the Fourth Circuit’s reasoning in Winston II –
“allowing a petitioner to supplement an otherwise sparse trial court record” – was
“appealing, especially where he diligently sought to do so in state court,” it nonetheless
found that “the plain language of Pinholster and Harrington precludes it.” Id. at 562. The
Sixth Circuit explained, “In Brown, we concluded that the state court had not issued a
decision on the merits because highly relevant documents were absent from the trial court
record.” Id. at 561-62. But after Harrington, the court held, “[t]o the extent that Brown is
inconsistent with Harrington’s definition of ‘on the merits,’ . . . it is no longer the law.” Id.
at 562. The Sixth Circuit reaffirmed Ballinger’s assessment of Brown’s viability in Loza v.
Mitchell, 766 F.3d 466, 494-95 (6th Cir. 2014), citing Ballinger and concluding that “it is
unlikely that Brown remains good law in light of Pinholster and Harrington.” Accord,
Garuti v. Roden, 733 F.3d 18, 23 (1st Cir. 2013) (refusing to follow Winston I and Winston
II because they were “essentially overruled” by Pinholster and Harrington).
Nevertheless, Broom persists that at least with regard to his Eighth Amendment
claim, Harrington’s presumption of adjudication “on the merits” does not apply because
there is a “state-law procedural principle[] to the contrary.” (Doc. 27 at 2.) He points to
Ohio law that “bar[s] any appellate decision based on evidence outside the record,” citing
Morgan v. Eads, 104 Ohio St. 3d 142 (Ohio 2004); Barnett v. Ohio Adult Parole Auth., 81
Ohio St. 3d 385, 387 (Ohio 1998); State v. Ishmail, 54 Ohio St. 2d 402, para. 1 of the
26
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syllabus (Ohio 1978); and Konigsberg v. Lamports Co., 116 Ohio St. 640, 641-42 (Ohio
1927). (Doc. 27 at 2.)
True, the Ohio Supreme Court has held that it is a “bedrock principle of appellate
practice in Ohio” that “‘[a] reviewing court cannot add matter to the record before it, which
was not a part of the trial court’s proceedings, and then decide the appeal on the basis of
the new matter.’” Morgan, 104 Ohio St. 3d at 144 (quoting Ishmail, 54 Ohio St. 2d at para.
1 of the syllabus). As Respondent argues, however, Ohio courts may take judicial notice of
judicial opinions and public records. (Doc. 21 at 41 (citing Ohio R. Evid. 201(B)). See
also State ex rel. Coles v. Granville, 116 Ohio St. 3d 231, 235-36 (Ohio 2007).
Moreover, Ohio’s high court did not decide Broom’s Eighth Amendment claim, or
even the narrower issue of whether Broom had established that Ohio was likely to violate
its execution protocol in the future, “on the basis” of the extra-record evidence that Ohio
conducted twenty-one executions after Broom’s failed execution attempt. The high court
concluded that Broom had not met this burden and Ohio had “‘a constitutional system that
it appears to be following’” on the basis of the district court’s factual findings and legal
conclusions in the IOEPL action. Broom, 146 Ohio St. 3d at 72-73 (quoting IOEPL
(Hartman), 906 F. Supp. 2d 759, 791 (S.D. Ohio 2012)). It cited one IOEPL decision, for
example, that provided a summary of six executions conducted between April 2012 and
September 2013. Id. at 72 (citing IOEPL, 2013 WL 5963150, at *11-16 (S.D. Ohio Nov. 7,
2013)).
Indeed, Broom himself submitted voluminous exhibits to the state courts that
provided information about Ohio’s post-Broom executions, primarily witness testimony
and other exhibits from IOEPL. (See Docs. 19-4 through19-9; Doc. 19-4 at 4-5 (index of
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exhibits).) The Ohio Supreme Court found:
Here, there is no indication that further discovery or a hearing is required.
Broom submitted an affidavit and other documentary exhibits, deposition
testimony from participants at his attempted execution and other transcripts
from the federal proceeding in Cooey v. Strickland, case No. 2:04–cv–1156,
2009 WL 4842393 (S.D.Ohio Dec. 7, 2009), and photographs of his puncture
marks. There is no dispute as to any operative fact in connection with the
events of September 14 and 15, 2009. Although he made a vague request in his
postconviction petition for discovery and a hearing, a review of the docket
shows that Broom never filed a discovery request while the matter was pending
in the trial court. He also has failed to proffer what that additional discovery
was or how a hearing would aid the trial court in resolving the legal questions
before it. We agree with the court of appeals that the trial court based its
decision on the undisputed and voluminous evidence it had and that the trial
judge did not abuse his discretion in denying Broom's petition without
additional discovery or an evidentiary hearing. There is no need for remand on
this issue.
Broom, 146 Ohio St. 3d at 67. Broom, therefore, has not rebutted the Harrington
presumption that the Ohio Supreme Court adjudicated his Eighth Amendment claim on the
merits.
The Ohio courts evaluated the evidence presented and the parties’ substantive
arguments regarding the intrinsic rights and wrongs of Brooms’ claims. Williams, 568 U.S.
at 302. The decision of the last state court to review the claims, therefore, constitutes a
disposition “on the merits” and is entitled to AEDPA deference under § 2254(d).10
II.
First Claim for Relief: Eighth Amendment Cruel and Unusual Punishment
10
As explained above, Broom has filed a Motion for Evidentiary Hearing and/or To
Expand the Record. (Doc. 31.) Because Broom’s first claim (Eighth Amendment) and second
claim (Double Jeopardy Clause) were adjudicated on the merits in state courts, the Motion is
denied as to those claims. A federal habeas court’s “review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the claim on the merits.” Pinholster, 563
U.S. at 181. And, for that reason, federal evidentiary hearings also are not permissible for habeas
claims adjudicated on the merits by a state court. Id. at 185. The Motion also is denied as to
Broom’s third claim (Ohio’s post-conviction process) and fourth claim (due process) because, for
reasons that follow, the third claim is not cognizable on habeas and the fourth claim is meritless.
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For his first claim for relief, Broom argues that any further attempt to execute him,
by any means or method, would violate the Eighth Amendment’s prohibition against cruel
and unusual punishments. (Doc. 18 at 64-85.) As explained above, Broom raised this
claim in state post-conviction proceedings, where it was adjudicated on the merits. See
Broom, 2012 WL 504504, at *7-13; Broom, 146 Ohio St. 3d at 68-73. The claim,
therefore, is preserved for federal habeas review.
A.
Eighth Amendment Method-of-Execution Cases
The Eighth Amendment to the United States Constitution provides that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.” U.S. CONST. amend. VIII. The Supreme Court has “time and again reaffirmed
that capital punishment is not per se unconstitutional.” Glossip v. Gross, 135 S. Ct. 2726,
2739 (2015); see also Gregg v. Georgia, 428 U.S. 153, 177 (1976). And, “[w]hile methods
of execution have changed over the years, [the Court] has never invalidated a State’s
chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual
punishment.” Glossip, 135 S. Ct. at 2732 (internal quotation marks and citation omitted).
The Supreme Court first considered whether particular methods of execution were
cruel and unusual punishments in the late nineteenth century. In Wilkerson v. Utah, 99
U.S. 130 (1878), it upheld a sentence of death by firing squad. The Court compared the
practice to executions in eighteenth-century England for various forms of treason, “where
the prisoner was drawn or dragged to the place of execution, . . . embowelled alive,
beheaded, and quartered, . . . [or] burn[ed] alive . . . .” Id. at 135. The Court declared it
“safe to affirm that punishments of torture, . . . and all others in the same line of
unnecessary cruelty, are forbidden” by the Eighth Amendment as they “superadded” pain
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to the death sentence through “terror, pain, or disgrace.” Id. at 135-36. But the Court did
not find the violence and pain associated with execution by firing squad unnecessarily
cruel. Id. at 136.
Twelve years later, in In re Kemmler, 136 U.S. 436 (1890), the Court considered
execution by electrocution. While it held that the Eighth Amendment did not apply to the
states, id. at 447-49, the Court nonetheless explored the issue of what makes a punishment
sufficiently “cruel” to fall under the Amendment’s proscription, opining:
Punishments are cruel when they involve torture or a lingering death; but the
punishment of death is not cruel, within the meaning of that word as used in the
[C]onstitution. It implies there [is] something inhuman and barbarous, –
something more than the mere extinguishment of life.
Id. at 447. The Court stressed that New York had adopted electrocution in order to replace
hanging with “the most humane and practical method known to modern science of carrying
into effect the sentence of death in capital cases.” Id. at 444 (internal quotation marks and
citation omitted).
Most relevant here is the Court’s third method-of-execution case, Louisiana ex rel.
Francis v. Resweber, 329 U.S. 459 (1947), in which Louisiana sought to electrocute
prisoner Willie Francis a second time after its initial attempt failed because the electric
chair malfunctioned. An official witness to the failed attempt averred that after the
executioner threw the switch, “Francis’ lips puffed out and he groaned and jumped so that
the chair came off the floor. Apparently the switch was turned on twice . . . .” Id. at 480
n.2. Francis, who was strapped to the electric chair with a hood covering his eyes, then
cried out, “‘Take it off. Let me breath [sic].’” Id. The execution was stopped, and the
Governor issued a reprieve. Id. at 460. The State later submitted evidence that no
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electrical current reached Francis’ body; his flesh did not show electrical burns; and
Francis told a sheriff after leaving the chair that the electric current had “‘tickled him.’” Id.
at 480 n.2. Francis claimed that a second execution attempt would violate the Fifth
Amendment’s prohibition against double jeopardy and the Eighth Amendment’s ban on
cruel and unusual punishments. Id. at 461.
Resweber resulted in a splintered decision, in which five justices of the Court – a
four-justice plurality and Justice Frankfurter in a concurring opinion – upheld a second
execution attempt. See id. at 464 (plurality opinion); 471-72 (Frankfurter, J., concurring).
In addressing the Eighth Amendment claim, the justices addressed two issues: (1) whether
“unnecessary” pain was inflicted in either the failed execution attempt or the proposed
execution, drawing on Wilkerson and Kemmler; and (2) whether the failed attempt was the
result of an “unforeseeable accident” or was a “wanton infliction of pain.”
Echoing Kemmler, the Resweber plurality first recognized:
The traditional humanity of modern Anglo-American law forbids the infliction
of unnecessary pain in the execution of the death sentence. Prohibition against
the wanton infliction of pain has come into our law from the Bill of Rights of
1688. The identical words appear in our Eighth Amendment. The Fourteenth
would prohibit by its due process clause execution by a state in a cruel manner.
Id. (footnote omitted). It further explained, “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.
Assuming a violation of the Eighth Amendment’s Cruel and Unusual Punishments
Clause would violate the Fourteenth Amendment’s Due Process Clause, id. at 462, the
Justices found “nothing in what took place [in the execution attempt] which amounts to
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cruel and unusual punishment in the constitutional sense.” Id. at 463.11 And they found no
“unnecessary pain involved in the proposed execution.” Id. at 464. The plurality rejected
Francis’ argument that “because he once underwent the psychological strain of preparation
for electrocution, now to require him to undergo this preparation again subjects him to a
lingering or cruel and unusual punishment.” Id. “Even the fact that petitioner has already
been subjected to a current of electricity,” they wrote, “does not make his subsequent
execution any more cruel in the constitutional sense than any other execution.” Id.
In a concurring opinion, Justice Frankfurter concluded that the Eighth Amendment
did not apply to the states. Id. at 469-70. But he found that allowing a second execution
attempt would not violate the Due Process Clause as “repugnant to the conscience of
mankind.” Id. at 471-72 (internal parenthesis and quotation marks omitted).
In addition, the plurality and Justice Frankfurter both emphasized that Francis’
execution failed because of an accident, which the state officials neither maliciously
intended nor foresaw. The plurality began its analysis in the case by observing,
As nothing has been brought to our attention to suggest the contrary, we must
and do assume that the state officials carried out their duties under the death
warrant in a careful and humane manner. Accidents happen for which no man
is to blame.
Id. at 462. The Justices determined that even when an inmate experiences additional pain
due to a failed execution attempt, if the impediment to the execution was “an accident, with
no suggestion of malevolence,” it does not violate the Eighth Amendment. Id. at 463.
They explained,
11
Fifteen years later, the Supreme Court cited Resweber alone as support in holding that
the Eighth Amendment applies to the states through the Due Process Clause of the Fourteenth
Amendment. Robinson v. California, 370 U.S. 660, 666 (1962).
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The fact that an unforeseeable accident prevented the prompt consummation
of the sentence cannot, it seems to us, add an element of cruelty to a subsequent
execution. There is no purpose to inflict unnecessary pain nor any unnecessary
pain involved in the proposed execution.
Id. at 464. The plurality found the situation “just as though he had suffered the identical
amount of mental anguish and physical pain in any other occurrence, such as, for example,
a fire in the cell block.” Id.
Justice Frankfurter agreed, concluding that allowing a second execution attempt
after the “innocent misadventure” of the failed attempt did not rise to the level of a due
process violation. Id. at 470. He cautioned, however, that “a series of abortive attempts at
electrocution or even a single, cruelly willful attempt” would present a different case. Id.
at 471.
The plurality and Justice Frankfurter agreed, therefore, that a second execution
attempt is not a cruel and unusual punishment where the initial attempt failed because of
an accident and “[t]here [was] no purpose to inflict unnecessary pain nor any unnecessary
pain involved in the proposed execution.” Id. at 464, 470-71.
The Supreme Court did not review a method of execution again until it recently
affirmed the constitutionality of execution by lethal injection in Glossip v. Gross, 135 S.
Ct. 2726 (2015), and Baze v. Rees, 553 U.S. 35 (2008). In Glossip, the Court adopted the
test for facial method-of-execution challenges established by the controlling opinion in the
fractured Baze decision: namely, that prisoners must demonstrate that the method presents
a substantial risk of severe pain and there is a readily available alternative procedure.
Glossip, 135 S. Ct. at 2737 (citing Baze, 553 U.S. at 50-52).
The Court noted in both Glossip and Baze that states have adopted lethal injection
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as a “more humane way to carry out death sentences.” Id. at 2732; see also Baze, 553 U.S.
at 43 n.1. Nevertheless, it emphasized at the outset of both opinions, “[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. . . . [T]he Constitution does not demand the
avoidance of all risk of pain in carrying out executions.” Baze, 553 U.S. at 47; see also
Glossip, 135 S. Ct. at 2733. The Court added in Glossip, “After all, while most humans
wish to die a painless death, many do not have that good fortune. Holding that the Eighth
Amendment demands the elimination of essentially all risk of pain would effectively
outlaw the death penalty altogether.” Glossip, 135 S. Ct. at 2733.
A majority of the Court in Baze relied on Resweber to establish this central
principle. The plaintiffs in Baze did not claim that the proper administration of Kentucky’s
lethal-injection protocol would constitute “cruel or wanton infliction of pain.” Baze, 553
U.S. at 49. Rather, they argued that there was a significant risk that the procedures would
not be properly followed, resulting in severe pain. Id. The three-justice lead opinion
recognized that it has held “that subjecting individuals to a risk of future harm – not simply
actually inflicting pain – can qualify as cruel and unusual punishment” in cases regarding
prison conditions. Id. at 49-50. The Justices noted that prisoners must show a “substantial
risk of serious harm” and “objectively intolerable risk of harm” to challenge conditions of
confinement under the Eighth Amendment. Id. at 50 (quoting Farmer v. Brennan, 511
U.S. 825, 842, 846, and n.9 (1994)). They then relied on Resweber to demonstrate the
limits of this Eighth Amendment protection from the risk of future harm in method-ofexecution cases. Id. “Simply because an execution method may result in pain, either by
accident or as an inescapable consequence of death,” they pronounced, “does not establish
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the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Id.12
Justice Thomas, in a concurring opinion joined by Justice Scalia, cited Resweber,
along with Wilkerson and Kemmler, to refute the lead opinion’s test with its emphasis on
risk and alternative methods. See id. at 99-103. In his view, “[t]he evil the Eighth
Amendment targets is intentional infliction of gratuitous pain, and that is the standard our
method-of-execution cases have explicitly or implicitly invoked.” Id. at 102. He noted
that in Resweber, “the Court was confronted in dramatic fashion with the reality that the
electric chair involved risks of error or malfunction that could result in excruciating pain.”
Id. at 103. “But absent ‘malevolence’ or a ‘purpose to inflict unnecessary pain,’” he wrote,
“the Court concluded that the Constitution did not prohibit Louisiana from subjecting the
petitioner to those very risks a second time in order to carry out his death sentence.” Id.
(quoting Resweber, 329 U.S. at 463, 464 (plurality opinion); 471 (Frankfurter, J.,
concurring)). “No one suggested that Louisiana was required to implement additional
safeguards or alternative procedures in order to reduce the risk of a second malfunction.
And it was the dissenters in Resweber who insisted that the absence of an intent to inflict
pain was irrelevant[,]” he observed. Id. (emphasis in original) (citing Resweber, 329 U.S.
at 477 (Burton, J., dissenting) (“The intent of the executioner cannot lessen the torture or
excuse the result.”)).
12
The Court had similarly relied on Resweber in conditions-of-confinement cases to
demonstrate the boundaries of Eighth Amendment protections. See, e.g., Estelle v. Gamble, 429
U.S. 97, 103, 105 (1976) (citing Resweber to support the proposition that “[a]n accident, although
it may produce added anguish, is not on that basis alone to be characterized as wanton infliction of
unnecessary pain”); Glass v. Louisiana, 471 U.S. 1080, 1085 (1985) (citing Resweber to support
the proposition that “[a] single, unforeseeable accident in carrying out an execution does not
establish that the method of execution itself is unconstitutional”).
.
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The lead opinion in Baze also appears to have affirmed Resweber’s cruel-intent
requirement. The Justices noted the Resweber plurality’s characterization of the failed
execution attempt as “‘an accident, with no suggestion of malevolence,’” and Justice
Frankfurter’s comparison of the “‘innocent misadventure’” at issue in that case to a
hypothetical “‘series of abortive attempts.’” Id. at 50 (quoting Resweber, 329 U.S. at 463,
464 (plurality opinion); id. at 471 (Frankfurter, J., concurring)). They then concluded 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.’” Id. (quoting Farmer, 511 U.S. at
842). See also John Stinneford, The Original Meaning of “Cruel”, 105 Geo. L. J. 441,
451-53 (2016) (positing that when Baze and Glossip were decided, a majority of the Court
“expressed sympathy” with the view that a method of execution can only be considered
cruel if it is purposely designed to inflict unnecessary pain).13
B.
Ohio Supreme Court Decision
The Ohio Supreme Court was the last state court to address Broom’s Eighth
Amendment claim. After summarizing the applicable federal law, the court reasoned:
13
The Court also recognized Resweber’s cruel-intent requirement in establishing the
requisite culpable state of mind – “deliberate indifference” – for Eighth Amendment claims
regarding conditions of confinement. See Estelle v. Gamble, 429 U.S. 97, 105 (1976) (relying on
Resweber to demonstrate that “[a]n accident, although it may produce added anguish, is not on
that basis alone to be characterized as wanton infliction of unnecessary pain”); Wilson v. Seiter,
501 U.S. 294, 297-98 (1991) (noting that Resweber plurality “emphasized that the Eighth
Amendment prohibited ‘the wanton infliction of pain[.]’ . . . Because the first attempt had been
thwarted by an ‘unforeseeable accident,’ the officials lacked the culpable state of mind necessary
for the punishment to be regarded as ‘cruel,’ regardless of the actual suffering inflicted”)
(emphasis in original; internal citations omitted). See also Whitley v. Albers, 475 U.S. 312, 32021 (1992) (holding that prisoners must show prison officials acted “maliciously and sadistically
for the very purpose of causing harm” to establish Eighth Amendment claims of excessive force).
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Broom's actual sentence of death is not at issue, nor does this case concern
Ohio's chosen method of execution. Instead, Broom asserts that a second
execution attempt would constitute cruel and unusual punishment. He claims
that what he already experienced went beyond the time, pain, and emotional
anguish involved in a “normal” execution. Because there is no guarantee of
success, Broom contends, any further attempt to execute him would be cruel
and unusual.
Broom's claim has no precedent in Ohio. The United States Supreme Court,
however, considered whether a failed execution attempt violated the Eighth
Amendment in Resweber. After the mechanical difficulty with the electric chair
failed to result in Francis's death, a new death warrant was issued. Id., 329 U.S.
at 460, 67 S.Ct. 374, 91 L.Ed. 422. Francis objected and argued that once he
underwent “the psychological strain of preparation for electrocution,” to
require him to undergo the preparation a second time would subject him to
lingering or cruel and unusual punishment. Id. at 464, 67 S.Ct. 374. A
four-member plurality rejected this argument, because “[t]he 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.” (Emphasis added.) Id. at 464, 67 S.Ct.
374.
The dissenting justices noted that electrocution is statutorily and
constitutionally permissible only if it is “so instantaneous and substantially
painless that the punishment shall be reduced, as nearly as possible, to no more
than that of death itself.” Id. at 474, 67 S.Ct. 374 (Burton, J., dissenting). The
dissenters rejected the prospect of execution by installments, what they termed
“a delayed process of execution.” Id. at 474–475, 67 S.Ct. 374.
Justice Frankfurter cast the deciding vote. He joined the plurality to reject
Francis's appeal because he did not believe that the Fourteenth Amendment
made the Bill of Rights applicable to the states. FN1. According to Justice
Frankfurter, the Due Process Clause of the Fourteenth Amendment limited a
state's criminal procedures only insofar as a state practice “ ‘offends some
principle of justice so rooted in the traditions and conscience of our people as
to be ranked as fundamental.’ ” Id. at 469, 67 S.Ct. 374 (Frankfurter, J.,
concurring), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330,
78 L.Ed. 674 (1934). Justice Frankfurter did not believe that Louisiana's
treatment of Francis rose to that level. As a result, Willie Francis went to the
electric chair a second time.
FN 1. The United States Supreme Court later repudiated Frankfurter's position:
The Due Process Clause of the Fourteenth Amendment does incorporate the
Eighth Amendment's protections against cruel and unusual punishments to
apply to the states. Robinson v. California, 370 U.S. 660, 666–667, 82 S.Ct.
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1417, 8 L.Ed.2d 758 (1962).
Based on Resweber, we determine, as did the Eighth District, that there is no
per se prohibition against a second execution attempt based on the Cruel and
Unusual Punishments Clause of the Eighth Amendment. The state's intention
in carrying out the execution is not to cause unnecessary physical pain or
psychological harm, and the pain and emotional trauma Broom already
experienced do not equate with the type of torture prohibited by the Eighth
Amendment.
Having determined that allowing the state to go forward with Broom's
execution does not amount to a per se violation of the Eighth Amendment, we
consider whether it is violated under the test set forth in Glossip and Baze.
Broom argues that the state should have known of the potential problems with
his execution beforehand. He submitted evidence that the state experienced
problems establishing and maintaining IV catheters during the previous
executions of Joseph Clark and Christopher Newton and that problems should
have been expected when Broom's first vein assessment indicated that there
may be trouble accessing the veins. But, it is unclear from the record why
Broom's execution team was unable to establish IV access. Although Dr. Heath
suggested that it was poor technique, it is Broom's burden to establish that he
is likely to suffer severe pain if required to undergo a second execution.
Further, in December 2009, less than three months after the attempt to execute
Broom, the Sixth Circuit rejected a constitutional challenge to Ohio's execution
protocol, noting that “[s]peculations, or even proof, of medical negligence in
the past or in the future are not sufficient to render a facially constitutionally
sound protocol unconstitutional.” Cooey, 589 F.3d at 225. The protocol that the
Sixth Circuit reviewed in Cooey has been amended and we cannot assume that
the same problems with IV access will befall Broom again.
Broom also contends that the state's violation of the execution protocols
indicates that prison officials were not blameless and created a substantial risk
of harm. We agree that compliance with execution protocols is the best way to
avoid the risk of severe pain, but deviation from a protocol is not an automatic
constitutional violation. See In re Ohio Execution Protocol Litigation (Wiles),
868 F.Supp.2d 625, 626 (S.D.Ohio 2012) (protections of the United States
Constitution “do not require perfect adherence to every single provision of
Ohio's execution protocol without deviation”). We are not convinced, however,
that Broom has established that the state is likely to violate its execution
protocol in the future.
Following the events of September 15, 2009, the state was enjoined from
carrying out the executions of Kenneth Smith and Charles Lorraine based in
large part on the federal district court's determination that Ohio was not
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following its execution protocol. See Cooey v. Kasich, 801 F.Supp.2d 623
(S.D.Ohio 2011); In re Ohio Execution Protocol Litigation (Lorraine), 840
F.Supp.2d 1044 (S.D.Ohio 2012).
The state sought to address the concerns of the federal district court. It
amended the protocol, adding a new command structure and forms that were
required to be filled out as each step of the protocol was completed to ensure
compliance. Wiles at 629–632. The state sufficiently demonstrated a
commitment to follow the protocol and was allowed to proceed with the
execution of Mark Wiles. Id. at 652. Several more executions occurred without
any apparent violation of the protocol. In re Ohio Execution Protocol
Litigation (Phillips), S.D.Ohio No. 2:11–cv–1016, 2013 WL 5963150, *11–16
(Nov. 7, 2013). This led the district court to conclude that “ ‘Ohio does not
have a perfect execution system, but it has a constitutional system that it
appears to be following.’ ” Id., quoting In re Ohio Execution Protocol
Litigation (Hartman), 906 F.Supp.2d 759, 791 (S.D.Ohio 2012).
While we acknowledge that the state failed to follow the protocol in 2009, we
cannot ignore what has transpired since then. The state has executed 21
death-row inmates since the attempted execution of Broom. See Ohio
Department of Rehabilitation and Correction, Ohio Executions—1999 to
Present, http://www.drc.ohio.gov/web/executed/executed25.htm (last updated
Jan. 16, 2014).
To be clear, the state must comply with the protocol as amended. Strict
compliance with the protocol will ensure that executions are carried out in a
constitutional manner and can also prevent or reveal an inmate's attempt to
interfere with the execution process. FN2. We simply are unable to conclude
that Broom has established that the state in carrying out a second attempt is
likely to violate its protocol and cause severe pain.
FN 2. At oral argument, the state speculated that Broom himself caused the
difficulty in accessing his veins by taking antihistamines to dehydrate himself.
There was also a reference in the official timeline of Broom's execution that the
“[m]edical team [was] having [a] problem maintaining an open vein due to past
drug use.” However, there is no evidence in the record supporting either
allegation. We mention these allegations only to illustrate that following the
current execution protocol could reveal potential problems with IV access. For
instance, the protocol requires four vein checks and a review of the inmate's
medical chart, which may include information regarding prior drug use. Ohio
Department of Rehabilitation and Correction, Policy No. 01–COM–11, at 6, 9,
11, http://www.drc.ohio.gov/web/drc_policies/documents/01-COM-11.pdf
(accessed Jan. 25, 2016). Also, after transfer to the Death House, the inmate is
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to be constantly monitored by at least three members of the execution team
who are required to maintain an execution timeline. Id. at 2 and 9. The
execution timeline is supposed to record certain specified events, such as the
vein checks and other information at the discretion of the execution team. Id.
at 2. And certainly, the ingestion of antihistamines should be a noteworthy
event.
We therefore conclude that the Eighth Amendment does not bar the state from
carrying out Broom's execution.
Broom, 146 Ohio St. 3d at 70-73.
C.
Analysis
Broom argues that the Ohio Supreme Court’s decision rejecting his Eighth
Amendment claim “was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States[.]” 28
U.S.C. § 2254(d)(1).14 (See Doc. 18 at 68.)
1.
Clearly Established Supreme Court Precedent
The “threshold question” under § 2254(d)(1) is what “clearly established” Supreme
Court precedent governs Broom’s Eighth Amendment second-attempt claim. Williams v.
Taylor, 529 U.S. 362, 390 (2000). As noted above, “clearly established Federal Law” in §
2254(d)(1) “refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s
decisions as of the time of the relevant state-court decision.” Id. at 412; see also Thaler v.
14
Broom also claims the Ohio Supreme Court’s decision “was based on an unreasonable
determination of the facts in light of the evidence presented” under § 2254(d)(2). (Doc. 18 at 68.)
As Respondent points out, however (Doc. 21 at 41), Broom does not dispute any specific factual
finding of the state court. (See Doc. 30 at 39 (“[T]o the extent that the Ohio Supreme Court
determined the facts in such a way that Broom was not entitled to relief . . .[,] the state court’s
decision is based upon an unreasonable determination of the facts in light of the evidence
presented.”).) And the Ohio Supreme Court observed, “There is no dispute as to any operative
fact in connection with the events of September 14 and 15, 2009.” Broom, 146 Ohio St. 3d at 67.
This Court, therefore, will not address that aspect of Broom’s Eighth Amendment claim.
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Haynes, 559 U.S. 43, 47 (2010) (per curiam) (“A legal principle is ‘clearly established’
within the meaning of [§ 2254(d)(1)] only when it is embodied in a holding of th[e]
[Supreme] Court.”).
The Supreme Court recently has articulated a restrictive view of what constitutes
clearly established law for purposes of § 2254(d)(1). See generally House v. Hatch, 527
F.3d 1010, 1015-17 (10th Cir. 2008). In Carey v. Musladin, 549 U.S. 70 (2006), it clarified
that “clearly established Federal law” consists of “Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice. Although the legal
rule at issue need not have had its genesis in the closely-related or similar factual context,
the Supreme Court must have expressly extended the legal rule to that context.” Id. at
1017. “In conducting the ‘clearly established’ inquiry,” therefore, “lower courts must
narrowly construe Supreme Court precedents and, as a consequence, ‘clearly established’
law ‘consist[s] only of something akin to on-point holdings.’” Pouncy v. Palmer, 846 F.3d
144, 161 (6th Cir. 2017) (quoting House, 527 F.3d at 1015). In Wright v. Van Patten, 552
U.S. 120 (2008), for example, the Court reversed a grant of habeas relief because no
Supreme Court decision had “squarely address[ed]” the issue or “clearly establish[ed]” that
law developed in a different context applied to the facts of that case. Id. at 125.
Broom argues that the Ohio Supreme Court should not have relied on Resweber as
the clearly established law governing his Eighth Amendment claim. He first contends the
decision is “archaic” and has been eclipsed by the Court’s “modern Eighth Amendment
standards,” clearly established in cases such as Trop v. Dulles, 356 U.S. 86 (1958). (Doc.
18 at 68-71; Doc. 30 at 36-39). He refers to Chief Justice Warren’s often-cited
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pronouncement in Trop, a condition-of-confinement case, that “[t]he [Eighth] Amendment
must draw its meaning from the evolving standards of decency that mark the progress of a
maturing society.” Trop, 356 U.S. at 101. Trop also established the fundamental Eighth
Amendment principle that “[t]he basic concept underlying the Eighth Amendment is
nothing less than the dignity of man.” Id. at 100. Respondent counters that the Ohio
Supreme Court correctly identified Resweber as controlling precedent, as it is the only
United States Supreme Court case to address an Eighth Amendment challenge to a second
execution attempt, albeit by a different mechanism; electrocution. (See Doc. 21 at 36-39.)
The Court agrees with Respondent. Although Resweber was decided more than
seventy years ago, it still “squarely addresses” the issue in this case: whether a second
execution attempt is a cruel and unusual punishment under the Eighth Amendment. Van
Patten, 552 U.S. at 125. The decision remains good law; the Supreme Court has never
overruled it or, to this Court’s knowledge, even questioned it.
Indeed, the Supreme Court’s treatment of Resweber leaves little doubt that the
decision remains a viable and significant precedent, despite its age and fractured
composition. The Court consistently has cited Resweber as one of its landmark Eighth
Amendment cases. See, e.g., Furman v. Georgia, 408 U.S. 238, 326, 393 n.17, 423 (1976);
Gregg v. Georgia, 428 U.S. 153, 170-171, 178 (1976); Estelle v. Gamble, 429 U.S. 97, 104
(1976); Glass v. Louisiana, 471 U.S. 1080, 1085 (1985); Baze v. Rees, 553 U.S. 35, 50, 61,
103 (2008); Glossip v. Gross, 135 S. Ct. 2726, 2732 (2015). Most notably, as discussed
above, the Court relied on Resweber to buttress a key principle underlying its two most
recent method-of-execution cases, Baze v. Rees and Glossip v. Gross: that an execution
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method is not cruel and unusual “[s]imply because [it] may result in pain, either by
accident or as an inescapable consequence of death . . . .” Baze, 553 U.S. at 50; see also
Glossip, 135 S. Ct. at 2733.
Trop’s “evolving standard of decency” and “dignity of man” principles, on the
other hand, are “far too abstract to establish clearly the specific rule” governing Broom’s
claim. Lopez v. Smith, 135 S. Ct. 1, 4 (2014). In determining what is “clearly established”
Supreme Court precedent, courts may not “‘refine or sharpen a general principle of
Supreme Court jurisprudence into a specific legal rule’” not announced by the Supreme
Court. Id. (quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013)); see also House, 527
F.3d at 1016 n.5 (habeas courts may not “extract clearly established law from the general
legal principles developed in factually distinct contexts.”). Trop’s principles, however
fundamental to Eighth Amendment jurisprudence, do not address “the specific question
presented by this case” and cannot be used to guide habeas courts in reviewing a state-court
decision under § 2254(d)(1). Smith, 135 S. Ct. at 4.
Broom also argues that Resweber cannot constitute clearly established law for
purposes of § 2254(d)(1) because it is a plurality decision in which a majority of justices
agreed only that the Eighth Amendment does not apply to the states. (Doc. 30 at 35-36.)
He cites as support Marks v. United States, 430 U.S. 188 (1977), which holds, “When a
fragmented Court decides a case and no single rationale explaining the result enjoys the
assent of five Justices, the holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest grounds.” Id. at 193
(quotation marks and editorial marks omitted)); see also Panetti v. Quarterman, 551 U.S.
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930, 948-49 (2007) (applying Marks to a splintered decision of the Court and concluding
that the narrowest rule “constitutes clearly established law for purposes of § 2254.")
(Internal quotation marks omitted).
It is true that Justice Frankfurter opined that the Eighth Amendment did not apply
to the states. Resweber, 329 U.S. at 469. But the Resweber plurality did not. Although, as
Broom points out, the plurality cited in a footnote several earlier cases in which the Court
had declined to incorporate the Fifth and Eighth Amendments, see id. at 462 n.2, it
expressly stated that it would review Francis’ claims “under the assumption, but without so
deciding,” the incorporation issue. Id. at 462 (emphasis added). Five justices, therefore,
did not agree in Resweber that the Eighth Amendment did not apply to the states and that is
not the case’s holding under Marks.15
As explained above, however, five justices did agree in Resweber that a second
execution attempt was not unconstitutional because the initial attempt was impeded by an
accident and the state did not intend to inflict unnecessary pain in the failed attempt or in
the proposed execution. Id. at 464, 471. Justice Marshall recognized this holding in his
concurring opinion in Furman v. Georgia, supra. He wrote that in Resweber, “[f]ive
members of the Court . . . held that the legislature adopted electrocution for a humane
purpose, and that its will should not be thwarted because, in its desire to reduce pain and
suffering in most cases, it may have inadvertently increased suffering in one particular
15
In fact, as noted above, the Supreme Court cited Resweber alone as support for its later
holding that the Eighth Amendment applies to the states through the Due Process Clause of the
Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666 (1962).
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case.” Furman, 408 U.S. at 326 (Marshall, J., concurring).16 Justice Marshall specifically
discounted the fact that Justice Frankfurter applied the Fourteenth Amendment’s Due
Process Clause rather than the Eighth Amendment’s Cruel and Unusual Punishments
Clause to Francis’ second-attempt claim, concluding that “in substance, his test was
fundamentally identical to that used by the rest of the Court.” Id. at 326 n.28. Justice
Powell also observed in dissent that “it seems clear that the tests for applying the [two
clauses] are fundamentally identical.” Id. at 422 n.4 (Powell, J., dissenting). See also
Gregg, 428 U.S. at 170-71(describing Resweber’s holding as “second attempt at
electrocution found not to violate Eighth Amendment, since failure of initial execution was
‘an unforeseeable accident’ and ‘[t]here was no purpose to inflict unnecessary pain nor any
unnecessary pain involved in the proposed execution.’”) (Editing marks and citation
omitted).
Resweber is a viable and important Supreme Court decision that is directly on
point. It is therefore the clearly established law controlling Broom’s Eighth Amendment
claim for purposes of this Court’s review under § 2254(d)(1).17
2.
State Court’s Application of Resweber
Broom contends that even if Resweber is the clearly established law governing his
16
Justice Marshall added in a footnote that English law required a second attempt at
execution if the first attempt failed. Furman, 408 U.S. at 326 n.30 (citing L. Radzinowicz, A
History of English Criminal Law 185-86 (1948)).
17
Of course, as Respondent argues (Doc. 21 at 39), because Resweber is the only Supreme
Court case that squarely addresses Broom’s Eighth Amendment claim, if it did not “clearly
establish” law controlling this claim – whether because of its age or plurality composition – then
there is no governing federal law and habeas relief is barred by § 2254(d). See Smith, 135 S. Ct. at
4.
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Eighth Amendment claim, the Ohio Supreme Court unreasonably applied it. The state
court made quick work of Resweber in analyzing Broom’s claim. It first determined that,
based on Resweber, there was no “per se prohibition” against Ohio attempting to execute
Broom a second time. Broom, 146 Ohio St. 3d at 71. The court then observed, “The
state’s intention in carrying out the execution is not to cause unnecessary physical pain or
psychological harm, and the pain and emotional trauma Broom already experienced do not
equate with the type of torture prohibited by the Eighth Amendment.” Id.
The state court next considered Broom’s claim under the first prong of the
Baze/Glossip test – namely, whether a second execution attempt presents a substantial risk
of serious harm – and found it did not.18 Id. at 71-73. In doing so, it addressed two
arguments posed by Broom: (1) “the state should have known of the potential problems
with [Broom’s] execution beforehand,” id. at 71; and (2) “the state’s violation of the
execution protocols indicates that prison officials were not blameless and created a
substantial risk of harm,” id. at 72. These issues mirror Resweber’s examination of
whether: (1) the execution attempt was unsuccessful because of an unforeseeable accident;
and (2) there was unnecessary pain inflicted in the initial execution attempt and a risk of
18
The Ohio Supreme Court applied only the first prong of the Baze/Glossip test because
the second prong, requiring an available alternative method, does not apply to Broom’s claim. As
the state court acknowledged, Broom did not challenge Ohio’s lethal-injection method of
execution on its face. See id. at 70 (“nor does this case concern Ohio’s chosen method of
execution”). Similarly, here, he seeks to bar Ohio from attempting to execute him again “by any
means or methods, including any adopted after the State’s failed attempt[.]” (See, e.g., Doc. 18 at
47 n.5.)
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unnecessary pain in the proposed execution.19
The failed execution attempt: “unforeseeable accident” or “wanton infliction of
pain.” The Ohio Supreme Court found that the State did not intend to cause harm in the
execution attempt and it rejected Broom’s argument that the State should have foreseen the
problems with accessing Broom’s veins because it had encountered similar difficulties in
previous executions and Broom’s first vein assessment indicated “that there may be trouble
accessing the veins.” Broom, 146 Ohio St. 3d at 71-72. The state court noted that Broom’s
expert, Dr. Mark Heath, attributed the execution team’s inability to obtain IV access to the
team’s medical incompetence, but the court found the cause of the problems “unclear.” Id.
at 72; see also id. at 73 n.2 (noting State’s allegations at oral argument that Broom himself
may have been to blame by taking antihistamines to dehydrate himself and a reference in
the official timeline of Broom’s execution to difficulties with Broom’s veins because of his
past drug use, but acknowledging that there was no evidence in the record to support either
allegation).
Here, Broom asserts that, unlike the electric chair’s mechanical malfunction in
Resweber, his failed execution was not the result of an “unforeseeable accident.” As he
argued in state court, he claims the State’s inability to access a vein was foreseeable
because similar problems had occurred in prior executions and the execution team knew
19
Broom argues the state court misapplied Baze and Glossip to his second-attempt claim,
as those cases concerned facial attacks on methods of execution. (Doc. 18 at 83.) A habeas court,
however, need only determine whether the state court’s reasoning and the result are consistent
with the controlling clearly established Supreme Court precedent. Early v. Packer, 537 U.S. 3, 8
(2002) (per curiam). Because the state court’s Baze/Glossip analysis addressed issues that are also
relevant under Resweber, the court’s application of Baze and Glossip was consistent with
Resweber.
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Broom’s veins were at least partially compromised before the procedure. Yet, rather than
act in a “careful and humane manner” in carrying out Broom’s execution, the State officials
and execution team deviated from Ohio’s lethal-injection protocol in numerous respects,
most notably, in IV training and pre-execution vein checks. (Doc. 18 at 74-75.)
It is undisputed that Ohio had difficulties with IV access in executions conducted
before Broom’s. Ohio Supreme Court Justice French wrote in dissent:
The Broom execution attempt was not the first time the medical execution team
had difficulty inserting an IV catheter. During Ohio's very first lethal injection,
that of Wilford Berry in 1999, the medical team members responsible for the
IV catheter line were unable to locate a vein in Berry's arm and had to call a
third team member for assistance. When the state executed Christopher Newton
in 2007, the medical team needed approximately 90 minutes to establish two
IV lines. And during the 2009 execution of Marvallous Keene, the team had to
switch to a backup line because they could not get fluid to flow.
But the most disastrous execution prior to the attempted execution of Broom
was that of Joseph Clark on May 2, 2006. Based on the end-of-the-day needle
count in Clark's case, the execution team used 17 or 18 needles trying to
establish two IV lines and never did manage to install the backup line before
ultimately executing him. As in Broom's case, Dr. Heath was critical of the
decision in Clark's case to continue fruitlessly trying to establish the IV,
testifying that he would not subject a patient to more than six to ten attempts,
because “any normal practitioner” will recognize by that point that the effort
is futile and is only inflicting needless pain on the patient.
Broom, 146 Ohio St. 3d at 77 (French, J., dissenting).20
The Ohio Supreme Court also acknowledged that Ohio failed to follow its protocol
during the Broom execution attempt. Id. at 73.21 The record shows that prison officials
20
These facts are not in dispute. The Ohio Supreme Court stated, “There is no dispute as
to any operative fact in connection with the events of September 14 and 15, 2009.” Broom, 146
Ohio St. 3d at 67.
21
Ohio first began using lethal injection as a means of execution in 1993, and it became
Ohio’s sole method of execution in 2001. See Cooey v. Strickland, 479 F.3d 412, 416 (6th Cir.
2007). Ohio specified lethal injection by statute, but its protocol (referring to its policies,
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permitted execution team members to miss required training sessions before his execution.
(Doc. 19-7 at 221-22 (Kerns Depo.).) There was no backup plan in the event IV access
could not be obtained or maintained. (Id. at 32 (Collins Depo.).) And there was no record
in the execution timeline that a third required vein check was performed the day of the
execution. (See Doc. 19-9 at 89-94 (Execution Timeline).)
Justice French provided this summary of Dr. Heath’s testimony at an IEOPL
hearing in which he criticized the execution team’s performance at Broom’s execution
attempt:
As Dr. Heath explained, execution drugs are administered through a peripheral
IV catheter, which consists of a hollow needle surrounded by a plastic tube
called the catheter. The practitioner inserts both the needle and the catheter into
the vein. Thus, although blood draws and IV catheters both involve needle
pricks, the latter also includes the insertion of an object with a wider diameter.
Dr. Heath testified that in Broom's case, the medical team inserted the catheters
improperly and in a fashion likely to cause greater pain:
And what [Broom] described did not sound right to me at all in terms
of proper procedure. He described the depth into his muscle which they
were pushing the catheter, going all the way up to the hub of the
catheter, which is well over an inch deep, and going in at a very steep
angle, which does not comport with proper technique or what's going
to be a successful technique for getting a catheter into a vein.
Q: And what kind of—what kind of response would a human body
have to that kind of technique?
A: It would hurt.
practices and procedures) for administering lethal injection is not established by statute,
administrative rule, or regulation. Id. at 426. See Ohio Rev. Code § 2949.22; DRC Policy 01COM-11. The promulgation and implementation of Ohio’s lethal-injection protocol, therefore, “is
solely within the discretion of the ODRC, which “can change the protocol at any time, regardless
of whether an inmate is scheduled for execution.” Cooey, 479 F.3d at 426. And Ohio has done
just that on numerous occasions. See Cooey v. Strickland, 588 F.3d 924, 927 (6th Cir. 2009).
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The fact that the medical team attempted to insert the catheter into Broom's arm
in a nearly perpendicular line “bespeaks of bizarre and certainly poor
technique” that had “no possibility of achieving insertion.” Even the Lucasville
physician inserted the catheter into Broom's ankle at the wrong angle, which
is why she struck bone.
On two occasions, after getting the catheter into Broom's veins, team members
“botched up that relatively simple process of attaching the I.V. tubing into the
hub of the catheter, and blood sprayed everywhere.” Compounding the
problem, the team member who inserted the catheter was not wearing gloves
during the procedure, thereby increasing the risk of unsuccessfully attaching
the tubing.
Dr. Heath testified that clinical competence demands that attempts at peripheral
IV access be abandoned long before the 19th attempt. The Lucasville physician
agreed with this assessment, testifying that if she had known that 18 attempts
had already been made on Broom, she never would have stuck him with a
needle. And although it can be proper practice to “fish” a vein—partially
withdrawing a catheter, then reinserting it at a different angle—it was
“completely unacceptable [and] far beyond any acceptable standard” to have
made as many insertion attempts through the same needle holes as the medical
team apparently did.
***
Dr. Heath offered a simple explanation for the state's failures: incompetence.
“[I]t is my opinion that the veins on Mr. Broom's arms, other areas of his body,
should be easily accessible by a competent team.” Part of the problem, he
opined, arose from the fact that Ohio had lax standards regarding who may
install a peripheral IV catheter during an execution. The person inserting the
peripheral IV catheter should be someone who performs that task as part of his
or her daily job duties. But Ohio's protocol required only one year of
experience, with no limitation on how remote in time that experience might be.
Team Member 9, who participated in the Broom procedure, is a phlebotomist.
But drawing blood, which is what phlebotomists do, is a “much easier and
simpler” process that is “far less fraught with problems” than inserting a
catheter in order to inject drugs into the body. Dr. Heath testified that allowing
a phlebotomist such as Member 9 to handle the insertion at an execution is
“deeply inappropriate and reflects a deep misunderstanding and deep inability
of what is needed to assemble an appropriate [execution] team.”
Broom, 146 Ohio St. 3d at 76-78 (French, J., dissenting).
But these circumstances, however troubling in hindsight, did not render the failed
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execution attempt reasonably foreseeable. “The test of foreseeability is that which is
objectively reasonable to expect, not merely what might conceivably occur. Harm that is
merely possible is not necessarily reasonably foreseeable.” 57A AM. JUR. 2d Negligence §
124 (2018).
The fact that the execution team had difficulties in prior executions does not show
that state officials expected or reasonably should have expected those problems to reoccur
at Broom’s execution. As the Ohio Supreme Court noted, the Sixth Circuit has rejected
this argument in upholding Ohio’s lethal-injection protocol, finding that “‘[s]peculations,
or even proof, of medical negligence in the past or in the future are not sufficient to render
a facially constitutionally sound protocol unconstitutional.’” Broom, 146 Ohio St. 3d at 72
(quoting Cooey II v. Strickland, 589 F.3d 210, 225 (6th Cir. 2009)). “Permitting
constitutional challenges to lethal injection protocols based on speculative injuries and the
possibility of negligent administration,” the circuit court continued, “is not only
unsupported by Supreme Court precedent but is also beyond the scope of our judicial
authority.” Cooey II, 589 F.3d at 225 (citing Gregg, 428 U.S. at 174-75).
In fact, as Broom acknowledges (see Doc. 18 at 52, 74), in May 2009, after the
Clark execution and before the Broom execution attempt, Ohio revised its written
execution protocol to address problems with establishing and maintaining IV lines, adding
training requirements and vein checks. See Cooey v. Strickland, 610 F. Supp. 2d 853, 926
(S.D. Ohio 2009). It stated:
Every possible effort shall be made to anticipate and plan for foreseeable
difficulties in establishing and maintaining the intravenous (IV) lines. The
condemned prisoner shall be evaluated by appropriately trained medical staff
on the day of arrival at the institution, to evaluate the prisoner’s veins and plan
for the insertion of the IV lines. This evaluation shall include a “hands-on”
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examination as well as a review of the medical chart, to establish any unique
factors which may impact the manner in which the execution team carries out
the execution. At a minimum, the inmate shall be evaluated upon arrival, later
that evening at a time to be determined by the warden, and on the following
morning prior to nine a.m. Potential problems shall be noted and discussed,
and potential solutions considered, in advance of the execution.
(Doc. 19-10 at 360 (May 2009 Execution Protocol).) The protocol also required that every
team member be trained in “the insertion of the IV needles” and “signs of IV incontinence .
. . .” (Id. at 358.) Broom does not point to any evidence that State officials or the
execution team expected or should have expected that these measures would not be
followed.
Nor does the record support Broom’s argument that State or prison officials,
including the execution team members, expected or reasonably should have expected to
have problems with IV access based on observations of Broom’s veins. As the Ohio
Supreme Court noted, at Broom’s first required vein check the day before the execution
attempt, the nurse and phlebotomist who assessed Broom’s veins recorded in the execution
timeline that the veins of his left arm were “not as visible or palpable” as those of his right
arm. (Doc. 19-9 at 96 (Execution Timeline).) This means they found “accessible” veins on
his right arm and had reason to believe they could access those veins. The required second
vein check was performed that evening and noted in the timeline, but no specific
observations were recorded. (Id. at 95.) There was no mention in the timeline of a third
vein assessment, which the protocol required to be performed the morning of the execution.
Broom claims the check was never done, but the only evidence of this that he cites from the
state-court record is the execution timeline itself, which makes no reference to it at all.
(See, e.g., Doc. 18 at 53, 75; Doc. 30 at 18.) It is possible that the vein check was
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performed but never noted in the timeline. See Cooey v. Kasich, 801 F. Supp. 2d 623, 63334 (S.D. Ohio 2011) (stating that Team Member #10, who had been on the execution team
for every execution since 1999, testified that all three vein assessments had been performed
for each execution and should have been conducted and recorded with Broom’s, but
conceded that the morning of Broom’s execution attempt was “hectic” and the vein
assessment may have occurred but was inadvertently omitted from the timeline).
The only indication that State or prison officials had that Broom’s veins may be
compromised, therefore, was one observation of diminished visibility and palpability of
veins on one arm. And they did not expect to have difficulties with IV access based on that
observation. Prison officials advised the ODRC regional director, Edwin Voorhies Jr., of
the finding and the medical team “assured him this would not present a problem.” Broom,
146 Ohio St. 3d at 61. The ODRC director at the time, Terry Collins, testified in IOEPL
that he and the prison officials had “no reason to believe that morning they were going to
have problems” with Broom’s veins. (Doc. 19-7 at 32 (Collins Depo.))
Broom’s own expert, Dr. Heath, testified at an IOEPL hearing that, based on his
observations, Broom’s veins should have been “easily accessed by a competent team.”
(Doc. 19-10 at 155-57 (Heath Test.)) He stated that he met with and examined Broom
about a week after the failed execution attempt. (Id. at 156-57.) But he found nothing in
Broom’s self-reported medical history that would explain why the execution team was
unable to obtain intravenous access. (Id. at 156.) He also explained that Broom exercised
regularly, which should have made his veins more accessible. (Id.) And, Broom denied
that he had ever engaged in intravenous drug use and Dr. Heath observed no scars or other
damage indicating intravenous drug use. (Id.) Based on observations of Broom’s veins
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alone, therefore, State officials and prison officials should not have reasonably expected to
encounter problems establishing IV access for Broom’s execution.
In fact, the biggest problem with establishing IV access to Broom’s veins was not
finding a vein, it was maintaining access to a vein. As the Ohio Supreme Court reported,
many prison officials and execution team members testified that team members were able
to access veins, but could not maintain that access. See, e.g., Broom, 146 Ohio St. 3d at
62-63. Warden Kerns testified, for example, “We actually hit the veins, and as soon as we
would start a saline drip the vein would bulge . . . so you can’t use it, you have to make
another attempt.” (Doc. 19-7 at 187 (Kerns Depo.)). It eventually became clear to
everyone involved, he stated, that, based on “how many times we actually got a good vein
but it just wouldn’t hold,” they may not be able to find a viable vein and the execution
would have to be canceled. (Id. at 192.)
Dr. Heath himself did not attempt to access Broom’s veins; he only identified veins
and opined on theoretical access. (See Doc. 19-10 at 155-57; 164-70 (Heath Test.)). As
Broom argues, his expert was clear in his criticism of the execution team’s technique in
inserting the catheter and the number of insertions made. (See id.) But Broom points to
only one criticism Dr. Heath made of the team’s ability to maintain venous access (and the
Court cannot find any other testimony of his on that subject): Dr. Heath describes possibly
two instances in which the execution team “botched up that relatively simple process of
attaching the I.V. tubing into the hub of the catheter . . . .” (Id. at 167.) It appears Dr.
Heath did not provide an opinion regarding the reason the team was unable to maintain
venous access once it was established. In fact, Dr. Heath acknowledged he did not know
exactly what caused the problem, testifying:
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In terms of putting in peripheral access, I think the thing that is most
informative to me is their failure to do it on Mr. Broom, who has easy veins.
And I’m not sure – I can’t come up with any explanation for why they couldn’t
do it other than either they’re not competent or there’s something about the
environment or the circumstances that made them unable to function at their
normal level of expertise. Something went wrong there.
(Id. at 164.) It is possible, as the state court recognized, that the “circumstances” impeding
IV access could have included Broom’s veins being compromised, for whatever reason,
and unable to withstand the intravenous procedures. See Broom, 146 Ohio St. 3d at 73 n.2.
The Ohio Supreme Court reasonably concluded, therefore, that the cause of the IV
problems during Broom’s failed execution attempt was “unclear.” Id. at 72. And if,
ultimately, the cause of the problems maintaining IV access is unclear, it is impossible to
say that it could or should have been foreseen. Given Ohio’s prior problems establishing
IV access in the Clark and Newton executions, and given the observation that Broom’s
veins on his left arm were compromised, it certainly was possible that problems may occur
with Broom’s IV access. But that does not mean that State or prison officials should have
reasonably expected that to happen, especially in light of their new protocol and Broom’s
other apparently viable veins.
Moreover, foreseeability alone does not determine what qualifies as an “accident”
under Resweber. As explained above, to prevail on his second-attempt claim, Resweber
requires that Broom show not only that the failed attempt was foreseeable in the sense of
being unexpected; it requires that Broom demonstrate that State or prison officials
possessed a cruel or malicious intent to deliberately inflict pain, either in their actions
during the failed execution attempt or in the execution procedure’s design. But he asserts
only conclusory allegations of the State’s cruel intent. (See, e.g., Doc. 18 at 64 (“The State
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was deliberately indifferent to the risks.”). See also Doc. 18 at 67 (“pain, suffering and
distress were deliberately and intentionally inflicted upon Broom”; “The State exhibited
cruel indifference to Broom’s rights and his humanity on September 15, 2009.”)).
Accordingly, Broom has not shown that the failed execution attempt was a
foreseeable and “cruelly willful attempt” under Resweber. Resweber, 329 U.S. at 463, 471.
Infliction of “unnecessary pain.” The Ohio Supreme Court provided a vivid
account of Broom’s execution attempt and recognized that Broom “was in a great deal of
pain” during the procedure. Broom, 146 Ohio St. 3d at 61-63. But it concluded that the
physical and psychological trauma Broom experienced did not amount to “the type of
torture prohibited by the Eighth Amendment.” Id. at 71. The state court also rejected
Broom’s argument that Ohio was likely to violate its lethal injection protocol in a second
attempt and seriously harm him based on Ohio’s corrective amendments of its protocol, the
numerous successful executions since Broom’s failed execution and the Sixth Circuit’s
affirmance of Ohio’s lethal-injection protocols as constitutional. Id. at 72-73.
Broom argues that the Ohio court unreasonably applied Resweber in making these
determinations. As to the failed execution attempt, he contends it “constituted both
physical and psychological torture.” (Id. at 8.) It was “more painful and physically
invasive,” he asserts, than the attempt in Resweber. (Id. at 76-78.) He argues that each
needle stab constituted a separate battery. (Id. at 78.) Broom recounts that he suffered
eighteen to nineteen painful wounds at multiple places on his body; one needle hit his ankle
bone; he bled from his wounds; he cried out in pain at times and eventually sobbed; and his
bruises were still apparent three days later. (Id. at 77; see also id. at 58-59.) He further
claims the psychological suffering was greater than in Resweber as he was left in “a state
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of terror” for two hours rather than the short period of time Willie Francis suffered. (Id. at
8; Doc. 30 at 38.) The physical and psychological pain together, he asserts, made the failed
execution attempt “even worse than a ‘mock execution.’” (Doc. 18 at 70.)
As Respondent argues, however, the source of difficulties in Broom’s execution
attempt, obtaining IV access, was a “necessary suffering involved” in preparatory
procedures for a method of execution (lethal injection) that has repeatedly been found
constitutional, rather than a “cruelty inherent in the method of punishment[.]” Resweber,
329 U.S. at 464; see also Baze 553 U.S. at 47 (“Some 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.”). After all, the State did not administer lethal drugs in Broom’s
attempted execution; whereas in Resweber, Willie Francis was subjected to electrical
currents. In fact, Broom never left the holding cell for the execution chamber. (See, e.g.,
Doc. 19-7 at 202 (Kerns Depo.)).
Regarding the proposed execution, Broom focuses on the psychological pain it
would inflict. He argues that the execution would be cruel and unusual because the severe
trauma he experienced in the failed attempt would substantially increase the psychological
impact and pain from a second attempt. (Doc. 30 at 37-38.) “Exposure to or threatened
death,” he explains, is a psychiatrically recognized trauma. (Id. at 37 (quoting Diagnostic
and Statistical Manual of Mental Disorders § 309.81 (5th ed. 2013)). Broom also points to
Ohio Supreme Court Justice O’Neill’s comment in his dissent that “a second execution
attempt after even one extremely painful and unsuccessful attempt is precisely the sort of
‘lingering death’ that the United States Supreme Court recognized as cruel within the
meaning of the Eighth Amendment 125 years ago.” Broom, 146 Ohio St. 3d at 84 (quoting
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In re Kemmler, 136 U.S. at 447). See also Sireci v. Florida, 137 S. Ct. 470, 470 (2016)
(Breyer, J., dissenting from denial of certiorari) (noting Court’s denial of Broom’s
certiorari petition and questioning whether a second attempt to execute Broom would
amount to a cruel and unusual punishment, citing Kemmler’s statement that
“‘[p]unishments are cruel when they involve . . . a lingering death’”) (quoting In re
Kemmler, 136 U.S. at 447). And he cites the Supreme Court’s recognition of Eighth
Amendment protection against cruel and unusual punishment that cause psychological pain
in Trop v. Dulles, 356 U.S. 86, 101-02 (1958).
Trop is not controlling clearly established federal law here, as it concerned the
constitutionality of expatriation, not a second execution attempt. See Wright v. Van Patten,
552 U.S. 120, 125 (2008). And in Resweber, which is the governing clearly established
federal law, the plurality expressly rejected the petitioner’s argument that having “once
underwent the psychological strain of preparation for electrocution, now to require him to
undergo this preparation again subjects him to a lingering or cruel and unusual
punishment.” Resweber, 329 U.S. at 464. The Court explained, “The situation of the
unfortunate victim of this accident is just as though he had suffered the identical amount of
mental anguish and physical pain in any other occurrence, such as, for example, a fire in
the cell block.” Id. See also Estelle v. Gamble, 429 U.S. 97, 105 (1976) (citing Resweber
for proposition that “[a]n accident, although it may produce added anguish, is not on that
basis alone to be characterized as wanton infliction of unnecessary pain.”). See also
Adams v. Bradshaw, 826 F.3d 306, 320 (6th Cir. 2017) (finding no “clearly established”
Supreme Court precedent for purposes of § 2254(d)(1) prohibiting death-penalty protocols
that cause psychological harm).
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Furthermore, nothing in the record refutes the Ohio Supreme Court’s finding that
“the state’s intention in carrying out the [proposed] execution is not to cause unnecessary
physical pain or psychological harm . . . .” Broom, 146 Ohio St. 3d at 71. And, as the state
court noted, “we cannot assume that the same problems with IV access will befall Broom
again.” Id at 72. Indeed, the Sixth Circuit repeatedly has upheld Ohio’s lethal-injection
protocols as constitutional. See, e.g., IOEPL, 881 F.3d 447, 454 (6th Cir. 2018) (October
2016 protocol), cert. denied, 139 S. Ct. 216 (2018); IOEPL, 860 F.3d 881, 884-85 (6th Cir.
2017) (October 2016 protocol); Cooey v. Strickland, 604 F.3d 939, 944 (6th Cir. 2010)
(November 2009 protocol, “Plan B”); Cooey II, 589 F.3d at 215-20 (November 2009
protocol). In reviewing the protocol revised after Broom’s failed execution, the circuit
court observed:
The unfortunate incident of Ohio’s unsuccessful execution of Broom does not
distinguish Ohio’s protocol from [Kentucky’s protocol] in Baze. When
administered properly, both protocols are humane and constitutional. Ohio’s
protocol, like Kentucky’s, is regrettably open to the possibility of mistaken
application. The complete eradication of all risk of accident, however, is not
yet possible, and the assertion that the mere possibility of future improper
administration of the lethal injection despite the training and safeguards is too
“attenuated” and “speculative”—and certainly not intended—to constitute
cruel and unusual punishment.
Cooey II, 589 F.3d at 228.
Few would disagree that Ohio’s failed attempt to execute Broom was a deeply
“unfortunate incident.” Nevertheless, Broom has not demonstrated that the state court was
objectively unreasonable in deciding that the pain and trauma he endured as a result of the
State’s initial execution attempt and the psychological pain he may experience in a second
attempt do not rise to the level of an Eighth Amendment violation. The Ohio Supreme
Court’s decision denying Broom’s Eighth Amendment claim, therefore, was neither
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contrary to, nor an unreasonable application of, Resweber. Broom’s first claim for relief
fails.
III.
Second Claim for Relief: Double Jeopardy
For his second claim for relief, Broom argues that any further attempt to execute
him would violate the Fifth Amendment’s guarantee against double jeopardy. (Doc. 18 at
85-103.) Broom presented this claim to state courts, which adjudicated it on the merits.
See Broom, 146 Ohio St. 3d at 65-66. This claim, therefore, is ripe for habeas review.
The Fifth Amendment to the United States Constitution guarantees that no person
shall “be subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S.
CONST. amend. V. The Double Jeopardy Clause provides criminal defendants with three
distinct protections, barring a second prosecution for the same offense after acquittal, a
second prosecution for the same offense after conviction, and multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other
grounds, Alabama v. Smith, 490 U.S. 794 (1989).
The Ohio Supreme Court was the last state court to address Broom’s doublejeopardy claim. After summarizing the federal and state law on the issue, it reasoned:
Broom argues that a second execution attempt would be an unconstitutional
second punishment. He contends that for double-jeopardy purposes, the attempt
to execute him began with the reading of the death warrant or at the very latest
with the first insertion of a needle. Broom claims that once the attempt to
execute him began, he had a reasonable expectation in the “finality” of his
death sentence, meaning that his death should have occurred on September 15,
2009, because R.C. 2949.22(B) requires that a death sentence shall be executed
on the day designated by a court. Because his life was once placed in
“jeopardy” by virtue of the two hours of painful efforts to insert needles into
his body, Broom argues, he may not again be required to undergo that same
punishment.
The court of appeals rejected this claim on the grounds that Broom has not yet
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been punished because his punishment is death: “An inmate can only be put to
death once, and that process legislatively begins with the application of the
lethal drugs.” 2012-Ohio-587, 2012 WL 504504, ¶ 23, citing R.C. 2949.22(A).
The court relied on Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 67
S.Ct. 374, 91 L.Ed. 422 (1947), in making this conclusion. In Resweber, Willie
Francis was placed in the electric chair, but when the switch was thrown, there
was a mechanical difficulty and death did not result. Id. at 460, 67 S.Ct. 374.
A plurality of the United States Supreme Court held that a proposed second
attempt to execute Francis did not violate the Fifth, Eighth or Fourteenth
Amendments. Because the court viewed the failed execution as an accident, it
determined that the Double Jeopardy Clause did not preclude the state from
carrying out the sentence. Id. at 463, 67 S.Ct. 374.
The Eighth District noted that the Resweber dissenters “distinguished the
application of electricity to the inmate from merely placing the inmate in the
electric chair with no application of electricity.” 2012-Ohio-587, 2012 WL
504504, at ¶ 22. By analogy, the court of appeals reasoned, the insertion of IV
lines is merely a “preparatory” step to the execution. Until the lethal drugs flow
through the tubes, the court reasoned, the state has not yet punished Broom
within the meaning of the Fifth Amendment. Id. at ¶ 23. Thus, according to the
court, the Double Jeopardy Clause has no application to multiple execution
attempts. Id. at ¶ 25.
The state agrees with the assessment of the court of appeals. It contends that
when the preparatory actions proved unsuccessful, the state halted the
execution and the imposed sentence was never carried out. Therefore, the state
argues, a second attempt to carry out that sentence will not violate the Double
Jeopardy Clause. The state cites R.C. 2949.22(A), which provides that “a death
sentence shall be executed by causing the application to the person, upon
whom the sentence was imposed, of a lethal injection of a drug or combination
of drugs.” (Emphasis added.) The state reads this language to mean that the
execution attempt does not begin until lethal force or measure is applied.
We agree. There is no question that lethal drugs did not enter Broom's body.
The execution attempt was halted after preparations to establish a viable IV
line were unsuccessful. The establishment of viable IV lines is a necessary
preliminary step, but it does not, by itself, place the prisoner at risk of death.
As the statute makes clear, the execution commences when the lethal drug
enters the IV line. In this case, because the attempt did not proceed to the point
of injection of a lethal drug into the IV line, jeopardy never attached. Because
there is no violation of the Fifth Amendment protection against double
jeopardy, the state is not barred from a second attempt to execute Broom's
death sentence.
Broom, 146 Ohio St. 3d at 65-66.
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Broom argues that in this decision, the Ohio Supreme Court “failed to apply the
governing federal constitutional principles, and it misapplied the law” under § 2254(d)(1).
(Doc. 18 at 88.)22 The threshold question, again, is what clearly established federal law
governs. Williams v. Taylor, 529 U.S. 362, 390 (2000).
Respondent maintains that Resweber controls this claim, clearly establishing that
the Double Jeopardy Clause does not prohibit a second execution attempt after a failed first
attempt. (Doc. 21 at 44-45.) The Resweber plurality assumed, without deciding, as it did
regarding the Eighth Amendment, that a violation of the Fifth Amendment would violate
the Due Process Clause of the Fourteenth Amendment. Resweber, 329 U.S. at 462. And it
began its analysis by stressing the significance of the double-jeopardy protection: “First.
Our minds rebel against permitting the same sovereignty to punish an accused twice for the
same offense.” Id. The plurality then analogized the case to Palko v. Connecticut, 302
U.S. 319 (1937), in which a state tried a defendant a second time for a death-eligible
offense after the defendant was previously acquitted on that charge. Id. The Palko Court
held that the Fifth Amendment did not apply to the states, and concluded that the “kind of
double jeopardy” to which the defendant was subjected in that case was not a “hardship so
acute and shocking that our polity will not endure it” so as to violate the Fourteenth
Amendment. Palko, 302 U.S. at 328. The justices found Palko “decisive.” Resweber, 329
U.S. at 463. “For we see no difference from a constitutional point of view,” they
explained, “between a new trial for error of law at the instance of the state that results in a
22
Broom also argues, as he did with his first claim for relief, that the state court
unreasonably determined the facts in deciding this claim. (Doc. 18 at 88.) But he does not dispute
any specific state-court determinations of fact, and this Court, therefore, will not consider this
claim under § 2254(d)(2).
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death sentence instead of imprisonment for life and an execution that follows a failure of
equipment.” Id. The justices continued,
When an accident, with no suggestion of malevolence, prevents the
consummation of a sentence, the state's subsequent course in the administration
of its criminal law is not affected on that account by any requirement of due
process under the Fourteenth Amendment. We find no double jeopardy here
which can be said to amount to a denial of federal due process in the proposed
execution.
Id. at 463.
As with the Eighth Amendment claim, Justice Frankfurter found that the Fifth
Amendment did not apply to the states and generally opined that a second execution
attempt would not violate due process. Id. at 469-70.
Broom agrees with Respondent that Resweber clearly established that a failed
execution attempt implicates double-jeopardy protection. (Doc. 30 at 40-41.) But he
argues that the plurality’s conclusion that no double-jeopardy violation occurred should not
be followed because the justices were “constrained by” the Palko decision, which the Court
expressly overruled in Benton v. Maryland, 395 U.S. 784 (1969). (Id. 41-42.) In Benton,
the Court held that the Fifth Amendment applies to the states and under the Double
Jeopardy Clause, unlike the “watered-down standard” of jeopardy enunciated in Palko, a
state is not permitted a second attempt to obtain a death sentence. Benton, 395 U.S. at 79395. Broom argues that Benton now also governs his claim, establishing that “double
jeopardy precludes states from making multiple attempts to complete a death sentence
where the first attempt failed due to error of the state.” (Doc. 30 at 42 (emphasis in
original)).
Broom asserts that other Supreme Court precedent governs this claim as well, citing
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a line of cases prohibiting states from increasing or augmenting a criminal sentence once
the sentence has begun and the defendant has a reasonable expectation of its finality. (Doc.
18 at 86-88; Doc. 30 at 42-43 (citing, among other cases, United States v. Halper, 490 U.S.
435, 441 (1989); North Carolina v. Pearce, 395 U.S. 711 (1969); United States v.
DiFrancesco, 449 U.S. 117, 127-28 (1980))). This authority, he maintains, supports his
claim that “jeopardy ‘attached’ no later than the point when, under all the facts and
circumstances of the first attempt, Broom had the legitimate expectation of finality in the
completion of his death sentence that day.” (Doc. 18 at 89.)
Broom’s arguments are unavailing. First, Benton’s holding regarding multiple
prosecutions and the Supreme Court precedent concerning increased sentencing do not
“squarely address[]” the issue of a second execution attempt and therefore cannot
constitute clearly established law under § 2254(d)(1). Wright v. Van Patten, 552 U.S. 120,
125 (2008).
Second, it is not clear what impact Benton has on the precedential value of the
Resweber plurality’s double-jeopardy analysis. The justices expressly assumed that the
Fifth Amendment’s Double Jeopardy Clause applied to Francis’ claim and seemed to rely
on Palko more as a persuasive factual analogy than for its “watered-down standard” of
double jeopardy the Court later rejected in Benton. Their conclusion, therefore, that the
failed execution attempt did not constitute a double-jeopardy violation because it resulted
from “an accident, with no suggestion of malevolence,” Resweber, 329 U.S. at 463, may
survive Benton.
But either way, Resweber does not help Broom. To the extent Resweber clearly
established only that the Double Jeopardy Clause may under some circumstances prohibit a
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second execution attempt, Broom’s claim fails because the Ohio Supreme Court neither
contravened, nor misapplied that narrow holding. The state court considered the merits of
Broom’s claim and it reasonably concluded that Broom was not placed in jeopardy during
the failed execution attempt because “[t]he establishment of viable IV lines [was] a
necessary preliminary step, but it [did] not, by itself, place [Broom] at risk of death.”
Broom, 146 Ohio St. 3d at 66. And to the extent Resweber also clearly established that
there is no double jeopardy where an execution attempt was unsuccessful due to an
“innocent misadventure,” Resweber, 329 U.S. at 471, Broom’s claim still fails for the same
reasons his Eighth Amendment claim fails: he has not demonstrated that the State and
prison officials either expected the initial execution attempt to be unsuccessful or
maliciously intended it to be unsuccessful. Finally, if Resweber is no longer good law on
this issue because of Benton, then there is no clearly established federal law controlling
Broom’s double-jeopardy claim and he cannot prevail under §2254(d)(1) for that reason.
See, e.g., Lopez v. Smith, 135 S. Ct. 1, 4 (2014).
Broom further argues that the Ohio Supreme Court’s decision was unreasonable
because it applied a state statute to determine whether jeopardy had “attached,” which can
only be determined by federal law. (Doc. 18 at 93-94 (citing Crist v. Bretz, 437 U.S. 28, 38
(1978); Missouri v. Hunter, 459 U.S. 359, 368 (1983); Hoffler v. Bezio, 726 F.3d 144, 156
(2d Cir. 2013))). The state court referenced Ohio’s lethal-injection statute, which “makes
clear” that “execution commences when the lethal drug enters the IV line[,]” and concluded
that “because the attempt did not proceed to the point of injection of a lethal drug into the
IV line, jeopardy never attached.” Broom, 146 Ohio St. 3d at 66. Resweber, however,
never addressed the issue of when jeopardy attaches and there is no clearly established
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Supreme Court precedent that does so in this context. Moreover, in Resweber, Willie
Francis was subjected to electrical currents, yet the Court still found no double-jeopardy
violation.
Accordingly, the Ohio Supreme Court’s determination that the State’s proposed
execution of Broom does not violate the Fifth Amendment’s Double Jeopardy Clause was
neither contrary to, nor an unreasonable application of, Resweber.
IV.
Third Claim for Relief: Due Process Violation / Ohio Post-Conviction
Procedures
Broom argues in his third claim for relief that the Ohio state courts denied him due
process by failing to provide an adequate corrective process through its scheme for postconviction relief. (Doc. 18 at 103-18.) Specifically, Broom faults the trial court’s denial of
his requests in post-conviction proceedings for discovery, funds for expert witnesses and an
evidentiary hearing. (See id. at 105.) Broom presented this claim to state courts and the
Ohio Supreme Court adjudicated it on the merits. See Broom, 146 Ohio St. 3d at 66-67.
Respondent, however, contends this claim is not cognizable on federal habeas review.
(Doc. 21 at 49-51.) The Court agrees.
The Sixth Circuit repeatedly has held that errors in state post-conviction
proceedings are outside the scope of federal habeas corpus review. See, e.g., Cress v.
Palmer, 484 F.3d 844, 853 (6th Cir. 2007); Roe v. Baker, 316 F.3d 557, 571 (6th Cir.
2002); Greer v. Mitchell, 264 F.3d 663, 681 (6th Cir. 2001); Kirby v. Dutton, 794 F.2d 245,
246 (6th Cir. 1986). This is because “‘the essence of habeas corpus is an attack by a
person in custody upon the legality of that custody, and . . . the traditional function of the
writ is to secure release from illegal custody.’” Kirby, 794 F.2d at 246 (quoting Preiser v.
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Rodriguez, 411 U.S. 475, 484 (1973)). Challenges to post-conviction proceedings “address
collateral matters and not the underlying state conviction giving rise to the prisoner’s
incarceration.” Id. at 247. A due-process claim related to collateral post-conviction
proceedings, therefore, even if resolved in a petitioner’s favor, would not “result [in] . . .
release or a reduction in . . . time to be served or in any other way affect his detention
because we would not be reviewing any matter directly pertaining to his detention.” Id.
Claims based on a state’s post-conviction process, therefore, cannot be brought in federal
habeas proceedings. Id. at 246.
Indeed, the Sixth Circuit court recently declined to revisit this long-standing
precedent, noting that it has never been overruled in an en banc proceeding and the
Supreme Court has never ruled to the contrary. Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 854-55 (6th Cir. 2017). Moreover, the Sixth Circuit explained,
“in the absence of Supreme Court precedent evaluating the constitutional adequacy of state
post-conviction review proceedings, [the petitioner] cannot establish the necessary
precondition for issuance of the writ—namely, that the decision of the Ohio Court of
Appeals, which clearly evaluated the merits of his claim, ‘was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme
Court of the United States.’” Id.
Broom’s third claim for relief, therefore, also fails.
V.
Fourth Claim for Relief: Due Process Violation / Ohio Statutory Right to a
Quick and Painless Death
In Broom’s fourth claim for relief, he asserts that Ohio violated his procedural and
substantive due-process rights by failing to protect his statutorily-created liberty and
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property interests in a “quick and painless execution.” (Doc. 18 at 119.) Section
2949.22(A) of the Ohio Revised Code provides that “a death sentence shall be executed by
causing the application to the person, upon whom the sentence was imposed, of a lethal
injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly
cause death.” Ohio Rev. Code § 2949.22(A). Respondent argues that this claim is
procedurally defaulted and meritless. (Doc. 21 at 52-55.)
Respondent contends this claim is procedurally defaulted because Broom did not
raise it before the Ohio Supreme Court. (Doc. 21 at 52-53.) As Broom points out,
however, he presented the claim to Ohio’s high court as his sixth proposition of law in his
Amended Memorandum in Support of Jurisdiction. (See Doc. 19-11 at 158-61.) This
claim was fairly presented to state courts and is not procedurally defaulted.
Respondent is correct, however, that this claim lacks merit. Broom cites no clearly
established Supreme Court precedent recognizing a federal due process right based on this
Ohio statute, or any other similar state statute. “Given the lack of holdings from [the]
Court regarding [the issue] involved here, it cannot be said that the state court
‘unreasonabl[y] appli[ied] clearly established law” under § 2254(d)(1). Carey v. Musladin,
549 U.S. 70, 77 (2006). In fact, the Sixth Circuit rejected this very claim in the § 1983
lethal-injection litigation, opining:
Biros also claims that the planned execution will violate his right to a “quick
and painless death.” . . . He cites Ohio Revised Code § 2949.22(A), the statute
that provides for a death caused by “a lethal injection of a drug ... of sufficient
dosage to quickly and painlessly cause death.” But § 2949.22 creates no cause
of action to enforce any right to a quick and painless death. See State v. Rivera,
Nos. 08CA009426, 08CA009427, 2009 WL 806819, at *7 (Ohio Ct.App. Mar.
30, 2009) (“There is no ‘action’ for a quick and painless death” under Ohio
Reg.Code Ann. § 2949.22(A).). We are not persuaded by Biros's assertion that
§ 2949.22 creates a federal right because the statute creates “liberty and
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property interests in a ‘quick and painless execution’ ” protected by the
substantive component of the Due Process Clause of the Fourteenth
Amendment. . . . Biros is unlikely to show that the reach of any such right
extends beyond the incorporation of the Eighth Amendment. Cf. Furman v.
Georgia, 408 U.S. 238, 359 n. 141, 92 S.Ct. 2726, 33 L.Ed.2d 346 (Marshall,
J., concurring).
Cooey II, 589 F.3d at 234 (citations omitted).
Accordingly, the state court’s decision rejecting Broom’s fourth claim for relief
neither contravened nor misapplied clearly established federal law and this claim is also
denied.
CERTIFICATE OF APPEALABILITY ANALYSIS
The Court must now determine whether to grant a Certificate of Appealability
(“COA”) for any of Broom’s claims for relief. The Sixth Circuit has held that neither a
blanket grant nor a blanket denial of a COA is an appropriate means by which to conclude
a capital habeas case as it “undermine[s] the gate keeping function of certificates of
appealability, which ideally should separate the constitutional claims that merit the close
attention of counsel and this court from those claims that have little or no viability.”
Porterfield v. Bell, 258 F.3d 484, 487 (6th Cir. 2001); see also Murphy v. Ohio, 263 F.3d
466 (6th Cir. 2001) (remanding motion for certificate of appealability for district court’s
analysis of claims).
Habeas courts are guided in their consideration of whether to grant a COA by 28
U.S.C. § 2253, which provides in relevant part:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from -(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court . . .
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(2) A certificate of appealability may issue under paragraph (12) only if the
applicant has made a substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253. This language is identical to the requirements set forth in the preAEDPA statutes, requiring the habeas petitioner to obtain a Certificate of Probable Cause.
The sole difference between the pre- and post-AEDPA statutes is that the petitioner must
now demonstrate he was denied a constitutional, rather than federal, right. Slack v.
McDaniel, 529 U.S. 473, 483-04 (2000) (interpreting the significance of the revision
between the pre- and post-AEDPA versions of that statute).
Furthermore, if a habeas claim is not procedurally defaulted, then the court need
only determine whether reasonable jurists would find the district court’s decision
“debatable or wrong.” Id. at 484. A more complicated analysis is required, however, when
assessing whether to grant a COA for a claim the district court has determined is
procedurally defaulted. In those instances, a COA should only issue if “jurists of reason
would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Id.
After taking the above standards into consideration, the Court will not issue a COA
for Broom’s third claim for relief (Ohio’s post-conviction scheme), as it is not cognizable
on federal habeas review, and Broom’s fourth claim for relief (due process), as no jurist of
reason would debate the Court’s conclusion on that claim. The Court will issue a COA for
Broom’s first (Eighth Amendment) and second (Fifth Amendment) claims for relief. A
reasonable jurist could debate the Court’s conclusions regarding these claims.
CONCLUSION
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For the foregoing reasons, the Court denies Broom’s Amended Petition for Writ of
Habeas Corpus. (Doc. 18.) The Court further certifies that, pursuant to 28 U.S.C. §
1915(a)(3), an appeal from this decision could be taken in good faith as to Broom’s first
and second claims for relief and the Court issues a certificate of appealability pursuant to
28 U.S.C. § 2253(c) and Federal Rule of Appellate Procedure 22(b) as to those claims only.
As to the remaining claims, the Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), an
appeal from this decision could not be taken in good faith and that there is no basis upon
which to issue a certificate of appealability. 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b).
IT IS SO ORDERED.
March 21, 2019
Date
s/ Christopher A. Boyko
Christopher A. Boyko
United States District Judge
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