Smith v. Warden Franklin Medical Center

Filing 10

DECISION AND ORDER TRANSFERRING CASE TO THE COURT OF APPEALS - This case is transferred to the Sixth Circuit Court of Appeals for its determination of whether the instant Petition is a second or successive petition and whether, if it is, Petitioner may be permitted to proceed. Signed by Magistrate Judge Michael R Merz on 04/05/12. (pb1)(COA)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
KENNETH SMITH,
:
Petitioner,

Case No. 1:12-cv-196
:

District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-vsFRANCISCO PINEDA, Warden,
:
Respondent.

DECISION AND ORDER TRANSFERRING CASE TO THE COURT OF APPEALS

This capital habeas corpus case is before the Court for initial review upon filing. Petitioner
previously filed a habeas corpus action in this Court challenging the same conviction and sentence
which is at issue here (Case No. 1:99-cv-832). The final judgment of this Court denying relief has
been affirmed on appeal by the Sixth Circuit. Smith v. Mitchell, 567 F.3d 246 (6th Cir. 2009), and
the Supreme Court has denied a petition for writ of certiorari. Smith v. Mitchell, 130 S. Ct. 742
(2009).1 Prima facie, then, it would appear that this is a second or successive petition of which this
Court would not have jurisdiction in the absence of permission from the Sixth Circuit. 28 U.S.C.
§ 2244(b); Burton v. Stewart, 549 U.S. 147 (2007).
Petitioner, however, makes an extended argument as to why this is not a second or successive
petition (Petition, Doc. No.2, PageID 82). The State has opposed that position (Doc. No. 6) and

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Petitioner’s execution has been stayed by Judge Frost of this Court in the parallel § 1983
litigation to which Petitioner is a party. In re: Ohio Execution Protocol Litigation, Case No.
2:11-cv-1016 (the “§ 1983 Litigation”).
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Petitioner has filed a Reply (Doc. No. 9). Thus the Court must decide whether to proceed or to
transfer the case to the Court of Appeals for a determination of whether the Petition is second or
successive within the meaning of AEDPA. That question is not listed as dispositive in 28 U.S.C.
§ 636(b) and the Magistrate Judge is unaware of any case law classifying the question as dispositive
so as to require a report and recommendations as opposed to a decision from a Magistrate Judge.
The case has been referred to the undersigned for all pretrial purposes under the Dayton location of
court General Order of Assignment and Reference.
28 U.S.C. § 2244, as modified by Antiterrorism and Effective Death Penalty Act of 1996
(Pub. L. No 104-132, 110 Stat. 1214)(the “AEDPA”), provides in pertinent part:
(b)

(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application shall be dismissed unless–
(A) the applicant shows that the claim relies on a new
rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(B)

(i) the factual predicate for the claim could not
have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven
and viewed in light of the evidence as a
whole, would be sufficient to establish by
clear and convincing evidence that, but for
constitutional error, no reasonable factfinder
would have found the applicant guilty of the
underlying offense.

(3)

(A) Before a second or successive application
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permitted by this section is filed in the district court,
the applicant shall move in the appropriate court of
appeals for an order authorizing the district court to
consider the application.
Language in rules is not self-interpreting, and this language from the AEDPA has spawned
much interpretive jurisprudence. The Sixth Circuit recently summarized some of that jurisprudence
in Storey v. Vasbinder, 657 F.3d 372 (6th Cir. 2011):
Whether a petition (a term we use interchangeably with
"application") is "second or successive" within the meaning of §
2244(b) does not depend merely on whether the petitioner filed a
prior application for habeas relief. The phrase is instead "a 'term of
art' that is 'given substance' by the Supreme Court's habeas cases." In
re Salem, 631 F.3d 809, 812 (6th Cir. 2011) (quoting Slack v.
McDaniel, 529 U.S. 473, 486, 120 S. Ct. 1595, 146 L. Ed. 2d 542
(2000)). Accordingly, in a number of cases, the Court has held that
an application was not second or successive even though the
petitioner had filed an earlier one. In Stewart v. Martinez-Villareal,
523 U.S. 637, 118 S. Ct. 1618, 140 L. Ed. 2d 849 (1998), the
petitioner filed a second petition that presented a claim identical to
one that had been included in an earlier petition. The claim had been
unripe when presented in the earlier petition. The Court treated the
two petitions as "only one application for habeas relief[.]" Id. at 643.
In Panetti v. Quarterman, 551 U.S. 930, 127 S. Ct. 2842, 168 L. Ed.
2d 662 (2007), the Court held that an application that presented a
claim that had not been presented in an earlier application, but that
would have been unripe if it had been presented then, was not second
or successive. Id. at 945. In Magwood v. Patterson, 130 S. Ct. 2788,
177 L. Ed. 2d 592 (2010), the Court made clear that an application
challenging an earlier criminal judgment did not count for purposes
of determining whether a later application challenging a new
judgment in the same case was second or successive. Id. at 2797-98.

Id. at 376-377.
The Petition herein pleads three Grounds for Relief:
First Ground for Relief: Smith's execution will violate the Eighth
Amendment because Ohio's lethal injection protocol will result in
cruel and unusual punishment.
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Second Ground for Relief: Smith's execution will violate the
Fourteenth Amendment because Ohio's lethal injection protocol will
deprive him of equal protection of the law.
Third Ground for Relief: Smith's execution by Ohio's lethal
injection protocol will violate his rights under the First, Sixth, Eighth
and Fourteenth amendments.
(Petition, Doc. No. 2, PageID 52.) All three Grounds for Relief relate to Ohio’s “lethal injection
protocol” (Explanation at Petition, Doc. No. 2, PageID 55). Petitioner asserts that he could not have
raised these claims in his initial habeas case because they did not become ripe until “very recently”
(Id. at PageID 84) or “within the last several months” (Reply Memorandum, Doc. No. 9, PageID
113). He notes that when he initially filed in 1999, “Ohio’s current lethal injection protocol, adopted
on September 18, 2011, did not exist. . . .” Id. Furthermore, he alleges that relevant facts were
learned for the first time during a hearing on June 29, 2011, before Judge Frost in the § 1983
Litigation.
Responding to the Petition, the Warden asserts that it is a second or successive petition or,
in the alternative, should be dismissed as an abuse of the writ. Although Petitioner has replied to
the abuse of writ arguments, they are not further considered in this Decision because the Warden
has made no motion to dismiss on that basis and because the Court is in doubt, as set forth below,
of its jurisdiction to consider the Petition on the merits.
There is no doubt that Petitioner’s collateral attack in the present case is on the same
conviction and capital sentence he attacked in Case No. 1:99-cv-832 and on which the judgment of
this Court is final. The actual method by which his execution is to be carried out is not part of the
judgment of conviction; in that regard he is not different from other Ohio capital defendants. Thus
there is no amended judgment or new judgment a challenge to which would be outside the “second

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or successive” prohibition. Magwood v. Patterson, 561 U.S. ___, 130 S. Ct. 2788 (2010).
As the Warden notes, lethal injection was adopted as an alternative method of execution in
Ohio in 1993, before Smith’s original Petition, and made the exclusive method of execution in 2001
while Smith’s original Petition was pending in this Court. If the challenge were to lethal injection
in general, it could have been raised in the initial Petition or by amendment in 2001. But the
challenge is instead to the particular protocol by which the lethal injection is to be administered.
Smith clearly could not have challenged the present protocol until after it was adopted, in September
2011. Whether that takes the instant Petition outside the “second or successive” prohibition is
unclear to this Court.
In In re Jones, 652 F.3d 603 (6th Cir. 2010), the circuit court held that the § 2244(b)
limitations did not apply to a numerically second petition challenging on ex post facto grounds a
parole determination or disciplinary proceeding that occurred after the initial petition was filed
attacking the underlying judgment. The court also refused to allow the petitioner to raise in his new
petition a jury selection claim which was available to him at the time of trial. The court could not
consider the application of Magwood because it was not decided until several months later. Jones
is not clearly dispositive here because it does not discuss whether the petitioner could or should have
added his ex post facto claims by amendment to the original case. Most non-capital habeas litigation
is concluded, of course, much more rapidly than capital cases, so that question may not arise in noncapital cases. No law has been cited to this Court as to whether an amendment alternative is relevant
on the “second or successive” question, although attempting to reopen the judgment in the prior case
to add a new claim would clearly raise second or successive questions under Fed. R. Civ. P. 60(b).
See Gonzalez v. Crosby, 545 U.S. 524 (2005).

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The Supreme Court has made it clear that § 2244(b) creates a jurisdictional bar in the district
court. Burton v. Stewart, 549 U.S. 147 (2007). Where precedent does not make it clear that this
Court can proceed and the Judicial Code offers a plainly available method to determine jurisdiction,
it would be imprudent for this Court to proceed without that determination. Delay to obtain a circuit
court ruling does the Petitioner no harm because he is already an intervenor in the Execution
Protocol Litigation. It also does the State no harm because it would achieve no benefit from having
this Court rule on the case subject to complete undoing by a later determination that this Court
lacked jurisdiction.
Accordingly, pursuant to In re Sims, 111 F.3d 45 (6th Cir. 1997), this case is transferred to
the Sixth Circuit Court of Appeals for its determination of whether the instant Petition is a second
or successive petition and whether, if it is, Petitioner may be permitted to proceed.
April 5, 2012.
s/ Michael R. Merz
United States Magistrate Judge

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