Hughbanks v. Hudson
DECISION AND ORDER GRANTING MOTION TO DISMISS LETHAL INJECTION CLAIM. Signed by Magistrate Judge Michael R. Merz on 11/13/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
Case No. 1:07-cv-111
- vs Magistrate Judge Michael R. Merz
STUART HUDSON, Warden,
DECISION AND ORDER GRANTING MOTION TO DISMISS
LETHAL INJECTION CLAIM
This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss
Lethal Injection Claims (ECF No. 226). Petitioner opposes the Motion (ECF No. 239) and the
Warden has orally waived an opportunity to file a reply memorandum.
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
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 (Adams III), 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 ).
The Warden’s Motion essentially seeks reconsideration of the Court’s prior denial of
dismissal on the basis of two Sixth Circuit decisions, In re: Tibbetts, 869 F.3d 403 (6th Cir.
2017); and In re Campbell, ___ F.3d ___, 2017 U.S. App. LEXIS 21094 (6th Cir. Oct. 25, 2017).
The Twenty-Second Ground for Relief in the Third Amended Petition reads:
Twenty-Second Claim for Relief: Gary Hughbanks [sic]
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.)
This Court’s prior treatment of lethal-injection-invalidity claims in habeas corpus was
based on its reading of the set of decisions by the Sixth Circuit in Stanley Adams’ habeas corpus
case from the Northern District of Ohio, 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.
In Adams I, the Sixth Circuit held, over Ohio’s objection, that a challenge to a method of
execution could be brought in habeas corpus as well as in an action under 42 U.S.C. § 1983.
This Court followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S.Ct. 2726
(2015). In Glossip, Justice Alito interpreted Hill v. McDonough, 547 U.S. 573 (2006), as holding
“a method of execution claim must be brought under § 1983 . . . .” 135 S.Ct. at 2738.
After Glossip, this Court reversed course. Judge Frost put it succinctly: “This Court and
other courts within this District have since relied on Adams [I] in accepting the proposition that
method-of-execution claims properly sound in habeas corpus. Glossip now undeniably upends
that practice.” Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015).
Then, in March 2016, came Adams II in which the Sixth Circuit held that “The Supreme
Court’s decision in Glossip does not alter our precedent.” 817 F.3d at 297. The State sought
“clarification” of Adams II and the Sixth Circuit published Adams III in June 2016 again
recognizing a category of lethal-injection-invalidity claims which could be brought in habeas.
Offered a chance to clarify what it had meant in Glossip, the Supreme Court denied certiorari in
Adams III. Adams v. Jenkins, 137 S.Ct. 814, 196 L. Ed. 2d 602 (2017). After certiorari was
denied, the Sixth Circuit issued its mandate in Adams III and this Court understood it was back
where it had been under Adams I in 2011, to wit, that there was a class of lethal-injectioninvalidity claims which, if successful, would render a particular petitioner’s death sentence
invalid. It was on that reading of Adams III that the Magistrate Judge granted in part the instant
Motion to Amend (ECF No. 275, PageID 3993).
Campbell again changes the analysis. Interpreting Glossip, the circuit court held:
Glossip therefore closed the hypothetical door left open by Nelson,
Hill, and Adams II. No longer can a method-of-execution claim
impair a death sentence itself. And since a method-of-execution
claim can no longer "attack the validity of the prisoner's conviction
or death sentence," a habeas court cannot act upon it. Id. at 2738.
Thus, the Glossip Court necessarily barred all habeas petitions
challenging "a particular application of a particular protocol to a
particular person" as unconstitutionally painful. In re Tibbetts, 869
F.3d 403, 406 (6th Cir. 2017). These challenges are properly
remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
Campbell, 2017 U.S. App. LEXIS 21094 at *11-12 (emphasis in original). The Campbell court
noted the language in Adams III on which capital petitioners and this Court have relied to justify
pleading lethal-injection-invalidity claims in habeas and declared that language to be nonbinding dictum. Id. at *15. It
[T]o the extent that Adams III purported to permit Baze-style
habeas claims that refuse to concede the possibility of an
acceptable means of execution, it is not controlling. Since
Glossip's holding directly addressed that question, it is binding on
us, and we follow it today. In doing so, we do not intend to
diminish the importance or correctness of the holding in Adams II
that § 1983 and habeas are not mutually exclusive as a per se rule.
All Baze and Glossip require is that— in the peculiar context of
method-of-execution claims—the death-row inmate must proceed
under § 1983.
Campbell, supra, at *15.
In allowing amendment to add lethal injection invalidity claims, this Court was
attempting to follow Adams III faithfully. Because Adams III was written to clarify Adams II at
the request of one of the parties, this Court assumes the added language in Adams III was
carefully chosen. Moore’s Federal Practice notes, however, that “it is not always clear what the
holding is in a particular case” because “[h]oldings may be given broad or narrow
interpretations.” 18 James Wm. Moore et al., Moore’s Federal Practice §134.03 (3d ed.
1999). Even language that is dictum may be carefully chosen. In any event, if the relevant
language in Adams III does not, per Campbell, bind subsequent Sixth Circuit panels, it does not
bind this Court.
Hughbanks attempts to avoid the impact of Campbell by asserting its treatment of
cognizability is dictum (Response in Opposition, ECF No. 239, PageID 16515-17). He notes
that the issue before the Campbell panel was whether Campbell satisfied the requirements of 28
U.S.C. § 2244(b)(2) and concludes “[b]ecause the panel need not have addressed the
cognizability issue in order to rule on the § 2244(b)(2) issue, the portion of its opinion addressing
cognizability is dicta.” Id. at PageID 16515.
In Campbell the Sixth Circuit recognized the procedural tangle created by Adams II and
Adams III when considered with Glossip and set out to “clarify the standard,” “[b]ecause the law
on this subject is not clear and has been the subject of several recent, published decisions by this
Circuit and the Supreme Court.” Campbell at *5.
The Adams III court did not label what it had to say about cognizability as dictum. Now
the Campbell court has applied that label, but in an opinion in which it said more than it had to to
decide the case before it. It may be that some future panel of the Sixth Circuit or that court en
banc or the Supreme Court will agree with Hughbanks that what the Campbell court said on
cognizability was dictum. Until that happens, however, this Court is free to follow Campbell,
even if it is not obliged to do so.
The Court chooses to follow Campbell because Campbell’s clarification makes sense of
Glossip. The capital petitioners’ bar has never explained to the satisfaction of this Court how the
unavailability of a constitutional method of lethal injection could render a death sentence invalid.
If each and every method of lethal injection Ohio adopts cannot be constitutionally applied to
Mr. Hughbanks or indeed to any other death-sentenced person, then that person is entitled to a
permanent injunction against his being executed by any of those methods. That is relief properly
available in an action under 42 U.S.C. § 1983, as the Campbell court recognized. Hughbanks is
a plaintiff in just such a case in this Court, In re: Ohio Execution Protocol Litig.,, Case No.
2:11-cv-1016 (the “Protocol Case”). The Protocol Case and its predecessors challenging Ohio’s
chosen method(s) of execution have been pending since very shortly after the Supreme Court
authorized such challenges in § 1983 litigation in Nelson v. Campbell, 541 U.S. 637 (2004).
Although the Adams v. Bradshaw court authorized habeas claims of the sort now dismissed, it
never explained why a death row inmate should be permitted to pursue substantively identical1
claims in both § 1983 and habeas simultaneously.
Campbell is right or binding or both and is followed here. Hughbanks’ Twenty-Second
Claim for Relief is DISMISSED. However, the dismissal is without prejudice to his pursuit of
the method-of-execution constitutional claims in the Protocol Case.
November 13, 2017.
s/ Michael R. Merz
United States Magistrate Judge
The Court has of course heard the petitioners’ bar repeatedly say that the claims are not substantively identical
because an alternative method must be pleaded in § 1983 and need not be pleaded inhabeas. It is the underlying
constitutional theories which are usually identical.
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