Smith v. Warden Franklin Medical Center

Filing 17

SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered the matter in light of the Warden's Objections, the Magistrate Judge again respectfully recommends that the Court find, on remand from the Sixth Circuit, that the instant Petition is not barred as a second-or-successive petition under 28 U.S.C. § 2244. Objections to R&R due by 11/13/2012. Signed by Magistrate Judge Michael R Merz on 10/26/2012. (kpf1)

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

Case No. 1:12-cv-196
:

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

-vsFRANCISCO PINEDA, Warden,
:
Respondent.

SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on the Warden’s Objections (Doc. No.
13) to the Magistrate Judge’s Report and Recommendations (the “Report,”Doc. No. 11)
recommending that this Court determine that the Petition herein is not a second or successive
petition within the meaning of 28 U.S.C. § 2244(b). Petitioner has filed a Response (Doc. No.
15) and Judge Rose has recommitted the matter for reconsideration in light of the Objections
(Doc. No. 16).
The Report addresses an issue which goes to this Court’s subject matter jurisdiction
because we do not have jurisdiction over a second or successive petition without pre-approval
from the Court of Appeals. Burton v. Stewart, 549 U.S. 147 (2007). The issue is therefore
“dispositive” and District Court review of the Report must be de novo, as the Warden notes.
The specific question considered in the Report was the question posed by the remand
from the Sixth Circuit, “a determination in the first instance of whether Smith’s claims are
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successive within the meaning of § 2244(b).” In re: Kenneth W. Smith, 690 F.3d 809, 810 (6th
Cir. 2012).
The Warden’s first objection is essentially that Smith’s claims are not cognizable in
habeas corpus (Objections, Doc. No. 13, PageID 151-155). That is an objection to an issue not
addressed in the Report. Furthermore, all of the judges of this Court who have considered the
question, including Judge Rose, have found that the claims are cognizable. See cases cited at
Response, Doc. No. 15, PageID 172.
The Warden’s second objection is that the instant Petition is second or successive
because it challenges the same judgment previously challenged in Smith’s first habeas petition in
Case No. 1:99-cv-832. The Report concluded that this fact was not determinative because the
Petition relied on facts arising from Ohio’s adoption of a new lethal injection execution protocol
on September 18, 2011, after the Sixth Circuit affirmed dismissal of the petition in the prior case.
The Report reasoned that this meant the new petition fit within Sixth Circuit precedent “applying
Panetti [v. Quarterman], 551 U.S. 930, 943-44 (2007) and [Stewart v.] Martinez-Villareal [523
U.S. 637 (1998)] to varieties of later-arising or later-ripening claims other than competency to be
executed.” (Report, Doc. No. 11, PageID 137-139.) The Warden argues those cases are readily
distinguishable (Objections, Doc. No. 13, PageID 158-159). The cited cases are distinguishable
on the facts, but in neither case was there a new intervening state court “judgment” involved.
The fact remains that, without filing a new habeas petition, Smith’s only way to attack
categorically the new lethal injection protocol would have been to move to reopen the judgment
in the prior case. That mode of proceeding would have been no more and no less subject to the
second-or-successive objection than the method Smith chose. See Gonzalez v. Crosby, 545 U.S.
524 (2005).

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The Warden’s third objection is to permitting Smith to “simultaneously litigate his claims
in habeas corpus and in a separate proceeding under Title 42 § 1983,” the lethal injection
protocol case pending before Judge Frost. This also is not an issue on which the Report made a
recommendation and therefore is not properly raised in an objection to the Report.
Having reconsidered the matter in light of the Warden’s Objections, the Magistrate Judge
again respectfully recommends that the Court find, on remand from the Sixth Circuit, that the
instant Petition is not barred as a second-or-successive petition under 28 U.S.C. § 2244.
October 26, 2012.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed.R.Civ.P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within fourteen days after being served with this
Report and Recommendations. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically
extended to seventeen days because this Report is being served by one of the methods of service
listed in Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely
motion for an extension. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum in support of the objections. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof. Failure to
make objections in accordance with this procedure may forfeit rights on appeal. See, United
States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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