Smith v. Warden Franklin Medical Center

Filing 108

SUPPLEMENTAL MEMORANDUM OPINION - Having reconsidered the matter in light of the Objections, the Magistrate Judge remains persuaded that this case must be transferred to the Sixth Circuit Court of Appeals. Signed by Magistrate Judge Michael R. Merz on 5/17/2017. (kpf)

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

:

- vs -

Case No. 1:12-cv-196
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

FRANCISCO PINEDA, Warden,
Franklin Medical Center
:
Respondent.

SUPPLEMENTAL MEMORANDUM OPINION

This capital habeas corpus case is before the Court on Petitioner’s Objections to/Appeal
of (Objections, ECF No. 105) the Magistrate Judge’s Memorandum Opinion and Transfer Order
transferring this case to the Court of Appeals for the Sixth Circuit (Transfer Order, ECF No.
103). The Warden has responded to the Objections/Appeal (ECF No. 107) and District Judge
Rose has recommitted the matter for reconsideration in light of the Objections/Appeal (ECF No.
106).
Petitioner’s Objections are considered seriatim below.

First Objection: A Magistrate Judge Lacks Authority to Transfer a Second-or-Successive
Habeas Application

Smith first objection reads, “Like [sic] before in this case, the Magistrate Judge’s ruling
should be reviewed de novo because it was dispositive of Smith’s lethal injection claims and thus
should have been a Report and Recommendation, not an Opinion and Transfer Order.”
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(Objections, ECF No. 105, PageID 2587.)
In support, Smith argues first that prior practice in this case was to treat second-orsuccessive transfer questions as dispositive and to have the Magistrate Judge file a Report and
Recommendations instead of deciding the matter (Objections, ECF No. 105, PageID 2588).
Actually, what first happened was that the Magistrate Judge decided it was unclear whether the
original Petition here was second-or-successive and transferred the case to the Sixth Circuit
(ECF No. 10). The Sixth Circuit never questioned the authority of the Magistrate Judge to enter
that Order but instead held the question whether a petition is second-or-successive must be
decided in the first instance by a district court. In re: Kenneth Smith, 690 F.3d 809 (6th Cir.
2012).
Petitioner is correct that on remand the Magistrate Judge filed a Report and
Recommendation on the second-or-successive question without discussing the issue of whether
that question was dispositive or not. Smith v. Warden, 2012 U.S. Dist. LEXIS 121019 (S.D.
Ohio Aug. 27, 2012). The Warden objected to that Report and argued that review must be de
novo. The Magistrate Judge agreed that the second-or-successive issue was jurisdictional and
therefore dispositive (Supplemental Report, ECF No. 17, PageID 178). Moreover, Judge Rose
reviewed the Report and Supplemental Report de novo (ECF No. 20, PageID 206-07).
Without citing the doctrine by name, Petitioner argues the law-of-the-case doctrine
requires the same ruling here: “The previous rulings by the Magistrate Judge and the District
Judge in this case, however, still control . . . .” (ECF No. 105, PageID 2589.) Under the doctrine
of law of the case, findings made at one point in the litigation become the law of the case for
subsequent stages of that same litigation. United States v. Moored, 38 F3d 1419, 1421 (6th Cir.
1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993). "As most commonly

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defined, the [law-of-the-case] doctrine posits that when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case."
Arizona v. California, 460 U.S. 605, 618 (1983), citing 1B Moore's Federal Practice ¶0.404
(1982); Patterson v. Haskins, 470 F.3d 645, 660-61 (6th Cir. 2006); United States v. City of
Detroit, 401 F.3d 448, 452 (6th Cir. 2005). “If it is important for courts to treat like matters alike
in different cases, it is indispensable that they ‘treat the same litigants in the same case the same
way throughout the same dispute.’” United States v. Charles, 843 F.3d 1142, 1145 (6th Cir.
2016)(Sutton, J.), quoting Bryan A. Garner, et al., The Law of Judicial Precedent 441 (2016).
A great deal of litigation over the second-or-successive question has occurred in the five
years since the prior ruling. For reasons given in other capital cases, the Magistrate Judge is now
persuaded that a motion to transfer a habeas petition as second-or-successive is not the functional
equivalent of a motion to dismiss for lack of jurisdiction. See, e.g., Tibbetts v. Warden, 2017
U.S. Dist. LEXIS 51968 (S.D. Ohio Apr. 5, 2017). Nevertheless, the law-of-the-case doctrine
cautions against further litigating that question in this case. The Magistrate Judge therefore
agrees that the District Judge’s review should be de novo.

Second Objection: This Court is Bound by Its Prior Decision that the Petition is Not
Second-or-Successive

Petitioner notes that District Judge Rose previously adopted the Magistrate Judge’s
conclusion that the Petition in this case is not second-or-successive on the basis of Adams v.
Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011).1 (Objections, ECF No. 105, PageID 2591.) Here

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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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Petitioner makes an explicit law-of-the-case argument. Id. at PageID 2592.
The law-of-the-case doctrine is not an inexorable command. "Law of the case directs a
court's discretion, it does not limit the tribunal's power." Arizona v. California, 460 U.S. 605,
618 (1983), citing Southern R. Co. v. Clift, 260 U.S. 316, 319 (1922); Messenger v. Anderson,
225 U.S. 436, 444 (1912); see also Gillig v. Advanced Cardiovascular Sys., Inc., 67 F.3d 586,
589-90 (6th Cir. 1995). “At the trial level, the doctrine of the law of the case is little more than a
management practice to permit logical progression toward judgment. Prejudgment orders remain
interlocutory and can be reconsidered at any time.” 1B Moore's Federal Practice ¶0.404 (1982).
The Magistrate Judge’s prior position that the Petition herein is not second-or-successive
was wrong. As noted above, there has been a great deal of litigation on the second-or-successive
question in the five years since that ruling was made, both in capital cases which have become
final on a first petition and in cases under 28 U.S.C. § 2255 because of Johnson v. United States,
135 S.Ct. 2551 (2015). The Magistrate Judge’s original thinking on this question was misguided
because of the argument that habeas corpus cases raising lethal injection method of execution
claims were procedurally the same as § 1983 cases raising those claims. For example, in the
time before Glossip v. Gross, 135 S.Ct. 2726 (2015), the Magistrate Judge routinely allowed
habeas corpus amendments any time Ohio’s lethal injection protocol was amended. The Sixth
Circuit has continued to permit lethal injection invalidity claims to be made in habeas corpus
cases. Adams [III]v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), cert denied, sub nom.
Adams v. Jenkins, 137 S. Ct. 814 (2017). But that court has not conflated habeas and civil rights
procedures in the manner this Court allowed under Adams I. It has expressly rejected the
argument that adoption of a new lethal injection protocol is a newly arising predicate which
avoids the second-or-successive bar. In re: Lawrence Landrum, 2017 U.S. App. LEXIS 6035

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(6th Cir. Feb. 13, 2017). In addition, the Sixth Circuit has expressly held that a motion to amend
can itself be a second-or-successive habeas application which must be transferred. Moreland v.
Robinson, 813 F.3d 315 (6th Cir. 2016).
For the reasons given in the Transfer Order and discussed below, the instant Petition and
Motion to Amend are second or successive. The Magistrate Judge’s error in thinking differently
when the case was filed does not prevent making a correct decision now. In other words, “I see
no reason why I should be consciously wrong today because I was unconsciously wrong
yesterday.” Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751, 2793 n.11 (2014) (Ginsburg,
J., dissenting) (quoting Massachusetts v. United States, 333 U.S. 611, 639-40 (1948) (Jackson, J.,
dissenting) (internal quotation marks omitted).

Third Objection: Smith’s Claims Are Not Second-or-Successive

A.

The Health Conditions Are Newly Arising Argument

Smith claimed in his Motion to Amend that his amended petition “will also include the
details of his health characteristics” (ECF No. 100, PageID 2368).

The Transfer Order

concluded this could be analogous to the asserted changes in mental competence found to make a
new petition not second or successive in Panetti v. Quarterman, 551 U.S. 930 (2007)(ECF No.
103, PageID 2569). The Order also noted that, unlike Panetti,2 the proposed amended petition
“does not relate Smith’s health conditions to any Supreme Court precedent holding that
execution of a person with such conditions will violate the Eighth Amendment.” Id. at PageID

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The new claim in Panetti was a claim that the mentally incompetent cannot be lawfully executed, a right
recognized in Ford v. Wainwright, 477 U.S. 399 (1986).

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2570.
Smith objects by pointing to Judge Clay’s concurrence in the remand in this case
(Objections, ECF No. 105, PageID 2599-600); Judge Clay would have accepted the transfer and
found that Smith’s original Petition in this case was not second or successive because of Smith’s
2009 diagnosis of laryngeal cancer, the results and treatment of which “would create
unconstitutionally extreme and unnecessary pain” in a lethal injection execution. To show that
these allegations rise to the level of an Eighth Amendment violation, Smith cites Baze v. Rees,
553 U.S. 35 (2008), once again attempting to conflate habeas corpus and civil rights procedure..
Baze was a § 1983 case. Smith is a plaintiff in this District’s § 1983 lethal injection litigation, In
re: Ohio Execution Protocol Litig., Case No.2:11-cv-1016. As the Transfer Order observes,
“[t]he Court has no doubt that newly arising claims and newly occurring or newly discovered
evidence are perfectly proper in the § 1983 case.” (ECF No. 103, PageID 2570).

B.

The Cumulative Evidence Argument

Smith objects that “the cumulative evidence necessary for Smith to raise ripe lethal
injection invalidity claims did not exist until after his initial habeas corpus proceedings were
completed.” (Objections, ECF No. 105, PageID 2603.) While admitting that “Adams III does
not directly relieve him of this burden” of satisfying the second-or-successive requirement,
Smith argues the “logic undergirding the court’s holding in Adams III establishes why Smith’s
petition is not second or successive. . . .” Id. at PageID 2604-05.
If the Sixth Circuit wishes to adopt that logic, it can easily say so. As the Transfer Order
points out, for this Court to adopt that logic runs the very substantial risk that the Sixth Circuit

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will someday disagree, conclude that this Court has adjudicated this case without jurisdiction,3
and tell us we have wasted the time and effort involved in that adjudication. That delay poses no
risk to any death row habeas petitioner.
Smith’s logic in this section of the Objections portends future motions to amend.
Although he says he had to accumulate a sufficient body of evidence to make his lethal injection
invalidity claims, he has in no way foreclosed amending again when he has more evidence, e.g. a
new Ohio lethal injection protocol or a new Equal Protection claim based on a new asserted
deviation from the protocol in place. Under Smith’s logic, provided he moves to amend within a
year of any such change, the habeas corpus statute of limitations will never run and none of those
future motions to amend will raise any significant second-or-successive questions. If the Sixth
Circuit believes this is a reasonable interpretation of the AEDPA and says so, this Court will
faithfully follow it, as it has attempted to follow the Adams decisions.
In the Transfer Order, the Magistrate Judge questioned how Smith’s proposed Third New
Ground for Relief based in the Equal Protection Clause could be newly arising since it had been
pleaded in the § 1983 case for years. Smith objects that “a § 1983 Equal Protection Claim was
only pleaded for the first time in the § 1983 litigation in January of 2010.” (Objections, ECF No.
105, PageID 2609.) Note, however, that the Petition in this case was not filed until March 9,
2012, more than two years after January 2010.
Smith also finds support in In re: Lawrence Landrum, 2017 U.S. App. LEXIS 6035 (6th
Cir. Feb. 13, 2017). That case originated in this Court as Case No. 2:12-cv-859 and was
transferred to the Sixth Circuit as a second-or-successive petition. The Sixth Circuit found
Landrum had stated a claim cognizable in habeas in light of Adams III and that the petition was

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It is well established that district courts have no jurisdiction to decide second-or-successive habeas applications.
Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007).

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second or successive, but refused to grant permission for Landrum to proceed because he had
“not identified practices or procedures from the September 2011 protocol that amount to a
factual predicate that could not have been discovered previously.” Id. at *5. Smith says he has
identified such “practices, procedures, and other evidence from tipping points that cumulatively
establish factual predicates . . . .” (Objections, ECF No. 105, PageID 2611.) If that is so, the
Sixth Circuit will speedily tell this Court either that no permission to proceed is necessary or give
its permission. See Jackson v. Sloan, 800 F.3d 260, 261 (6th Cir. 2015), citing Howard v. United
States, 533 F.3d 472 (6th Cir. 2008); In re: Cedric E. Powell, Case No. 16-3356, 2017 U.S. App.
LEXIS 1032 (6th Cir. Jan. 6, 2017).

C.

The Constructively Amended Judgment Argument

Smith claims that his Petition in this case does not attack the same judgment as his first
case did, claiming exemption from second-or-successive status on the basis of Magwood v.
Patterson, 561 U.S. 320 (2010), and King v. Morgan, 807 F.3d 154 (6th Cir. 2015). But Smith
has no new ink-on-paper judgment. Instead, he claims his February 20, 1996, judgment was
constructively amended when Ohio made lethal injection the sole method of on November 21,
2001. The Transfer Order noted “there is no authority for adopting this approach.” (ECF No.
103, PageID 2571.) The Objections do not respond with any authority, but rather an extended
argument about why it must be so that a change in execution method works a constructive
amendment of the judgment (Objections, ECF No. 105, PageID 2612-23).
If the constructive amendment theory is viable, Petitioner suffers no harm in presenting it
to the Sixth Circuit on transfer. If he is correct, he will have a precedent usable by other death

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row inmates sentenced before November 2011. If he is wrong but this Court accepts his theory,
when the Sixth Circuit decides he was wrong (and this Court with him), it will vacate any
judgment we enter as void for lack of jurisdiction.

Fourth Objection: Smith’s Claims Are Not an Abuse of the Writ

The Transfer Order found Smith’s lethal injection invalidity claims were an abuse of the
writ because they became available to him when Ohio adopted lethal injection as its sole method
of execution, November 2011, when his original Petition was still pending (Transfer Order, ECF
No. 103, PageID 2571-73).
Smith objects that his health conditions continued to change after judgment in the prior
case on August 15, 2005 (Objections, ECF No. 105, PageID 2623). To the extent that the health
condition referenced are the laryngeal cancer diagnosis and subsequent treatment, the Magistrate
Judge agrees that bringing them in a subsequent petition does not constitute an abuse of the writ
as that doctrine is reviewed in In re: Bowen, 436 F.3d 609 (2006).
Smith also objects that “changes in facts since 2001, including the watershed change in
Ohio’s lethal injection protocol on October 7, 2016[,] and other accumulated-evidence tipping
points, made his claims newly arising. . . .” (Objections, ECF No. 105, PageID 2623.) This is
merely a restatement of Smith’s underlying theory about new facts. The Magistrate Judge
simply notes that counsel have not defined “tipping point” at all, much less in a way that might
somehow be used to limit future claims to be allowed to amend.

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Statute of Limitations

Smith argued in his Motion to Amend that his claims were not barred by the statute of
limitations (ECF No. 100, PageID 2373-82).

The Transfer Order declined to decide that

question because this Court lacks jurisdiction over second-or-successive matters. Smith objects
that if the District Judge rejects the Magistrate Judge’s second-or-successive analysis, he is free
to decide that question (Objections, ECF No. 105, PageID 2624-25). No further analysis on this
point is necessary.

Conclusion

Having reconsidered the matter in light of the Objections, the Magistrate Judge remains
persuaded that this case must be transferred to the Sixth Circuit Court of Appeals.

May 17, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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