Hughbanks v. Hudson

Filing 221

DECISION AND ORDER ON MOTION TO DISMISS LETHAL INJECTION AS-APPLIED CLAIMS - The Warden's Motion to Dismiss 215 is DENIED. Signed by Magistrate Judge Michael R. Merz on 6/22/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
GARY HUGHBANKS,
Petitioner,

:

Case No. 1:07-cv-111

- vs Magistrate Judge Michael R. Merz
STUART HUDSON, Warden,
:
Respondent.

DECISION AND ORDER ON MOTION TO DISMISS LETHAL
INJECTION AS-APPLIED CLAIMS

This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss
Lethal Injection As-Applied Claims (ECF No. 215). Petitioner opposes the Motion (ECF No.
218) and the Warden has filed a Reply in support (ECF No. 219).
Although a motion to dismiss involuntarily for failure to state a claim is classified as
dispositive by 28 U.S.C. § 636(b), the parties have unanimously consented to plenary magistrate
judge jurisdiction under 28 U.S.C. § 636(c) (ECF No. 13).
The claims sought to be dismissed are included in Petitioner’s Third Amended Petition
(ECF No. 213). The Third Amended Petition was filed pursuant to permission granted in the
Corrected Decision and Order on Motion to Amend (ECF No. 212)(reported at Hughbanks v.
Hudson, 2017 U.S. Dist. LEXIS 56005 (S.D. Ohio Apr 12, 2017)). In granting leave to amend,
the Court applied the general standard enunciated in Foman v. Davis, 371 U.S. 178 (1962), as
against the Warden’s claim that the amendment would be futile because the added claim (Ground
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Twenty-Two) would be subject to dismissal under Fed. R. Civ. P. 12(b)(6) as untimely and for
failing to state a claim on which habeas corpus relief could be granted. The Court overruled the
Warden’s cognizability objection on the basis of Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th
Cir. 2016), cert den. sub nom. Adams v. Jenkins, 137 S. Ct. 814, 196 L. Ed. 2d 602
(2017)(Adams III ). As to the statute of limitations defense, the Court held Hughbanks was
entitled to equitable tolling for the time during which this Court was interpreting Adams I 1 in a
manner completely parallel to the process seen in § 1983 capital litigation (ECF No. 212, PageID
15896-900).
As he did in opposing the proposed amendment in the first place, the Warden moves to
dismiss on the basis that Ground Twenty-Two is not cognizable in habeas and is barred by the
statute of limitations (Motion, ECF No. 215). Hughbanks responds that the rulings in the
Corrected Decision are now the law of the case (ECF No. 218). The Warden replies by noting
that Fed. R. Civ. P. 54 makes all decisions before final judgment to be interlocutory and notes
that he must file a 12(b)(6) motion now, before pleading, or lose the chance to do so altogether
(ECF No. 219).

Analysis

Cognizability

The Twenty-Second Ground for Relief in the Third Amended Petition reads:
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There are three published opinions of the Sixth Circuit in Stanley Adams habeas corpus case: Adams v. Bradshaw,
644 F.3d 481, 483 (6th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6th Cir. March 15, 2016); and Adams v.
Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), referred to herein as Adams I, Adams II, and Adams III
respectively.

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Twenty-Second Claim for Relief: Gary Hughbanks Execution
Under Ohio Law Will Violate The Eighth Amendment Because
Any Method That The Ohio Department Of Corrections And
Rehabilitation Employs Has A Substantial, Objectively, Intolerable
Risk Of Causing Unnecessary, Severe Pain, Suffering Degradation,
Humiliation, And/Or Disgrace.

(ECF No. 213, PageID 15907.)
The Warden asserts this claim for relief is not cognizable on the same basis as this Court
articulated in Turner v. Warden, 2016 U.S. Dist. LEXIS 6019 (S.D. Ohio Jan 19, 2016). In that
decision, the Magistrate Judge reversed course, relying on his reading of Glossip v. Gross, 135 S.
Ct. 2726 (2015):
In light of Glossip, this Court's prior treatment of lethal injection
claims in habeas corpus requires severe modification. The Court
has previously relied on a broad reading of Adams, supra, in
permitting method-of-execution claims to be brought in habeas,
regardless of whether the same claims were simultaneously
pending in a § 1983 action. As Judge Frost of this Court wrote
when confronted with the same argument, "Glossip undeniably
upends this practice." Henderson v. Warden, No. 1:12-cv-703,
136 F. Supp. 3d 847, 2015 U.S. Dist. LEXIS 134120 *9 (S.D.
Ohio, Sept. 30, 2015)2. The undersigned has already reached the

same conclusion, writing "[t]his Court's broad reading of Adams is
inconsistent with the Supreme Court's ruling in Glossip. . ."
Henness v. Jenkins, No. 2:14-cv-2580, 2015 U.S. Dist. LEXIS
148195, 2015 WL 666624 *5 (S.D. Ohio, Nov. 2, 2015).

Id. at *17. But this Court was “wrong”2 in its reading of Glossip. In Adams III, the Sixth
Circuit denied Glossip had fundamentally changed the result in Adams I and continued to allow
lethal injection claims to be made in habeas despite the pendency of substantively identical
claims being made by the same death row inmate in a pending § 1983 case. If Adams III is a
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In The Path of the Law, 10 Harv. L. Rev. 457 (1897), reprinted at 110 Harv. L. Rev. 991 (1997),
Justice Holmes wrote that “The object of our study [of law], then, is prediction, the prediction of
the incidence of the public force through the instrumentality of the courts.” Id. at 997. To the
extent this theory of the law applies to trial court behavior, Judge Frost and I were wrong in
predicting how the Sixth Circuit would read Glossip.
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misreading of Glossip, the Supreme Court passed up a chance to correct it by denying certiorari
in Adams III. That is why the cited decision in Turner was withdrawn shortly after the Sixth
Circuit handed down Adams II. (See ECF No. 268 in Case No. 2:07-cv-595). In the Corrected
Decision, the Magistrate Judge relied on his reading of Adams III to allow the amendment:
As this Magistrate Judge understands it, the current state of the law
in the Sixth Circuit after Adams III is that habeas corpus will lie to
challenge "the constitutionality of lethal injection in general" to
wit, that "lethal injection cannot be administered in a constitutional
manner, and [that] claim 'could render [Petitioner's] death sentence
effectively invalid.'" Adams III, quoting Hill v. McDonough, 547
U.S. at 580.
Adams III supports the cognizability of Hughbanks' new proposed
lethal injection claim which is a general claim of the type
recognized as valid in Adams III : "no matter what protocol it uses,
Ohio cannot constitutionally execute me under the Eighth
Amendment." It is not per se claims of the form "lethal injection is
always and everywhere unconstitutional." Such a claim would be
precluded by precedent, as Adams III recognizes. The Warden's
assertion that the proposed Ground for Relief fails to state a claim
on which habeas corpus relief can be granted is overruled on the
basis of Adams III .
2017 U.S. Dist. LEXIS at *8-9.
The Warden argues this reading of Adams III is wrong. He asserts that the Sixth Circuit’s
citations to Hill v. McDonough, 547 U.S. 573 (2006), and Nelson v. Campbell, 541 U.S. 637
(2004), were only meant to show how lethal injection claims are properly pled in § 1983, not in
habeas.
The Warden asserts that the only sentence in Adams III which speaks to habeas
cognizability is the following: “Thus, to the extent that Adams challenges the constitutionality
of lethal injection in general, and not a particular lethal-injection protocol, his claim is
cognizable in habeas.” (Motion, ECF No. 215, PageID 16140). The Warden argues for a plain
meaning reading of this sentence, asserting
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This single sentence formulation by the Adams III Court of what is
an appropriate pleading in habeas is simple, basic, and not
complicated. It means what it says, and no more. This passage in
Adams III is fairly read to say “challenges … [to] a particular
lethal injection protocol” are not cognizable in habeas. This rule is
easy to read and easy to understand.
The formulation of a rule for cognizability in a § 2254 habeas
action that is governed by a mere denial of the constitutionality of
any possible lethal injection protocol would stand in direct
contradiction to the “general challenge” contemplated in Adams
III. Moreover, a denial of the constitutionality of any lethal
injection protocol is nothing more that a refusal to recognize
binding precedent by the United States Supreme Court.

Id. at PageID 16140-41. The Warden does not formulate what a general habeas challenge to
lethal injection of the sort undoubtedly authorized by Adams III would look like. Instead, he
asserts that all Hughbanks and other capital habeas litigants in Ohio are doing is making
challenges to “a particular lethal injection protocol,” illustrated
with supposed “botched executions” to supposedly show the
shortcomings of “a particular lethal injection protocol.” This factor
absolutely disqualifies Hughbanks’ proposed pleadings from
cognizability in a § 2254 habeas action under Adams III. Instead,
Hughbanks’ pleadings, emphasizing the details and particulars of
execution events, the ongoing revision of execution protocols, and
the various formulations of lethal drugs, is a serial challenge to “a
particular lethal injection protocol” that the Adams III Court says
belongs in a § 1983 action.

Id. at PageID 16143.
The undersigned has written at length and repeatedly on why the Adams v. Bradshaw
decisions do not completely collapse the procedural distinctions between § 1983 and habeas
litigation, including in the Corrected Decision here. (See Hughbanks v. Hudson, 2017 U.S. Dist.
LEXIS 56005 at *9-12.) But the Adams III court knew that Stanley Adams was a plaintiff in In
re: Ohio Execution Protocol Litig,, Case No. 2:11-cv-1016. While it could have remanded him

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to pursue relief in that case alone, it did not do so. Instead, it held that a general challenge to
lethal injection that was not a per se challenge was cognizable in habeas because it could result
in habeas relief – vacation of an inmate death sentence altogether. The best this Court has been
able to do in formulating what such a claim would look like is of the form “Ohio can never
execute me by lethal injection” because of deficiencies in Ohio’s behavior and my particular
characteristics. Ground Twenty-Two fits that form and is therefore cognizable in habeas.

Statute of Limitations

In opposing the proposed amendment to add Ground Twenty-Two, the Warden asserted
the amendment would be futile because the statute of limitations had long since expired.
Petitioner responded with the theory that a new habeas claim arises at least every time Ohio
amends its lethal-injection protocol and indeed every time new relevant facts occur or are
discovered. The Court rejected that argument. Hughbanks v. Hudson, 2017 U.S. Dist. LEXIS
56005, *9-12. However, the Court also found
Hughbanks, as well as other capital habeas petitioners, is entitled
to equitable consideration of his situation. The state of the law on
this point has been confused during the time this case has been
pending. Until Adams I it was reasonable for counsel to understand
that method of execution claims had to be brought in § 1983
proceedings. Following Adams I, this Court accepted the extension
of the logic of that case and of Cooey v. Strickland, 604 F.3d 939
(6th Cir. 2010), that not only did new § 1983 claims arise
whenever the protocol was amended, but so did habeas claims on
the same substantive basis. On that basis, counsel could reasonably
have concluded they had a year from adoption of a new protocol to
amend a client's habeas petition to add claims "newly arising"
under that new protocol. Although this Court has now concluded
on the basis of Adams III and Landrum that the cognizability,
second-or-successive, and limitations questions must be kept
separate, capital habeas petitioners should not be penalized for
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following the Court's lead during that period between Adams I and
Adams III. The State of Ohio has not claimed any prejudice would
result from this approach since it will have to litigate the lethal
injection invalidity question in the § 1983 case in any event.
Id. at *13-14.
The Warden argues first that Ground Twenty-Two is barred under 28 U.S.C. § 2244(d).
He notes that Hughbanks’ original Petition did not include any lethal injection invalidity claim
and none was added until five years later (Motion, ECF No. 215, PageID 16134). The Court
allowed amendment in 2012 based on its then-understanding, now corrected, of parallels
between habeas and § 1983 procedure and found the amendment “timely because brought within
one year of the various 2011 revisions to Ohio’s lethal injection protocol . . . .” (ECF No. 131,
PageID 1800).
That misunderstanding was long-held and often acted on in capital cases in this District,
both by the undersigned and a number of District Judges. The State had no way to correct that
view, given that there were no final judgments in cases on which it was acted on. On the other
hand, the existence of that misunderstanding and its misleading effect on capital habeas
petitioners is what led this Court to conclude Hughbanks (and others) was entitled to equitable
tolling of the time during which the Court was operating under that misunderstanding.
The Warden asserts equitable tolling is only available to excuse habeas petitioner inaction
and Hughbanks has been actively litigating this case since 2007 (Motion, ECF No. 215, PageID
16136, citing Allen v. Yukins, 366 F.3d 396 (6th Cir. 2004), and Jurado v. Burt, 337 F.3d 368 (6th
Cir. 2003). In both of those cases, the Sixth Circuit refused equitable tolling when delay was the
result of attorney error.
In his Reply, the Warden relies heavily on Holland v. Florida, 560 U.S. 631 (2010), the
case in which the Supreme Court expressly recognized that the equitable tolling doctrine applies
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to the habeas corpus statute of limitations. The Warden emphasizes that branch of the Holland
ruling which requires “that some extraordinary circumstance stood in his way and prevented
timely filing,” Id. at 649, and claims that nothing stood in Hughbanks’ way (ECF No. 219,
PageID 16153). But the Supreme Court has not given us a catalogue of what those extraordinary
circumstances might be and has repeatedly held that equitable principles govern habeas corpus
generally, not just the statute of limitations. See Scvhlup v. Delo, 513 U.S. 298, 319 (1995),
citing, e.g., Sanders v. United States, 373 U.S. 1 (1963); United States ex rel Smith v. Baldi, 344
U.S. 561, 573 (1953), Fay v. Noia, 372 U.S. 391, 438 (1963), Ex parte Watkins, 28 U.S. 193,
202 (1830)(Marshall, C.J.).
If the finding must be explicit, then the Court finds that the confused state of the law on
habeas pleading of lethal injection claims from Adams I in 2011 through Glossip to Adams III in
early 2017 after certiorari was denied and until the mandate issued was an extraordinary
circumstance. The Court has exercised its equitable power to excuse Petitioner’s failure during
that period to plead a general lethal injection invalidity claim of the sort authorized in Adams III .
The Warden emphasizes that lack of prejudice to one of the parties is not, standing alone,
a justification for equitable tolling, and the Court agrees. But the Warden also has not shown
any prejudice. Hughbanks is a plaintiff in the Protocol case and the State must defend that
litigation as well. There is no execution date set for Hughbanks, and presumably the thirty-three
death row inmates who have execution dates through March 24, 2021, will have to have their
cases adjudicated before Hughbanks could be reached for execution. Thus the lack of prejudice
supports the finding of equitable tolling here.

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The Warden’s Motion to Dismiss is therefore DENIED.

June 22, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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