Sheppard v. Warden Chillicothe Correctional Institution
SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Objections to R&R due by 10/30/2017. Signed by Magistrate Judge Michael R. Merz on 10/16/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BOBBY T. SHEPPARD,
Case No. 1:12-cv-198
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
-vsCHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner’s Objections
(“Objections,” ECF No. 104) to the Magistrate Judge’s Report and Recommendations (“Report,”
ECF No. 103) on remand from the Sixth Circuit. District Judge Black has recommitted the
matter for reconsideration in light of the Objections (ECF No. 105). The Warden has not
responded to the Objections and her time to do so has expired.
The question before the Court is whether Sheppard’s Petition (ECF No. 2) and his
Motion to Leave to Amend (ECF No. 100) are second-or-successive habeas applications which
require permission from the circuit court under 28 U.S.C. § 2244(b) before this Court has
jurisdiction to proceed. The Report concluded that both the Petition and the Motion must be
transferred. As Petitioner correctly notes (ECF No. 104, PageID 1682), this conclusion is subject
to de novo review by the District Judge.
Objection One: The District Judge has Already Ruled that the Petition is Not Second or
Sheppard’s First Objection is that “the District Judge has already ruled Sheppard’s
pending claims are not second-or-successive.” (Objections, ECF No. 104, PageID 1683.) That
Objection must be viewed in light of the procedural history. Sheppard relies on this Court’s first
ruling on the second-or-successive question. In language quoted in the Objections (ECF No.
104, PageID 1683), the Magistrate Judge recommended finding the original Petition was not
As presently pled, Sheppard’s new claims arise from Ohio’s
adoption of a new execution protocol on September 18, 2011, after
the Court of Appeals affirmed the dismissal of his prior petition.
That set of facts fits squarely within the Sixth Circuit precedent
cited above applying Panetti and Martinez-Villareal to varieties of
later-arising or later-ripening claims other than competency to be
executed. The Court should conclude that the instant Petition is not
a second or successive petition within the meaning of § 2244(b)
and proceed with its adjudication.
(Report, ECF No. 19, PageID 237.) Judge Frost adopted that logic and held “a numerically
second petition is not properly characterized as ‘second or successive’ within the reach of §
2244(b) if it asserts claims with predicates that arose after the filing of the original petition.”
(Opinion, ECF No. 35, PageID 361.) He noted the Sixth Circuit’s holding that the statute of
limitations for a § 1983 method-of-execution challenge “begins anew any time Ohio adopts a
new written protocol” and held the same reasoning applies in habeas. Id. at PageID 362, citing
Cooey v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010). Relying on Adams v. Bradshaw, 644
F.3d 481 (6th Cir. 2011),1 he held Sheppard could proceed in both habeas and § 1983 on his
lethal injection invalidity claims. Id. at PageID 364. As has often been the case in capital
1 There are three published opinions of the Sixth Circuit in Stanley Adams’ habeas corpus case: Adams v. Bradshaw, 644 F.3d 481, 483 (6thCir. 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), cert. den. sub. nom. Adams v. Jenkins, 137 S. Ct. 814, 106 L. Ed. 2d 602
(2017), referred to herein as Adams I, Adams II, and Adams III respectively.
litigation in this Court, the second-or-successive, statute of limitations, and cognizability in
habeas issues became entwined. Sheppard and other capital habeas petitioners argued they had
“newly-arising” claims based on amendments to the Execution Protocol; the “factual predicate”
of the amendment, they said, made new claims not subject to the second-or-successive bar.
Sheppard argues that “[t]he District Judge’s ruling that Sheppard’s petition is not secondor-successive is the law of the case.” (Objections, ECF No. 104, PageID 1684, citing Howe v.
City of Akron, 801 F.3d 739 (6th Cir. 2015)). Prior rulings should not be disturbed “unless there
is (1) an intervening change of controlling law; (2) new evidence available; or (3) a need to
correct clear error or prevent manifest injustice.” Id., citing Howe at 741.
Sheppard’s “law of the case” argument ignores significant changes in the law since the
2012-13 decisions relied on.
First, in In re Tibbetts, 869 F.3d 403 (6th Cir. 2017), the Sixth Circuit rejected the notion
that a new execution protocol is a “newly arising factual predicate” that entitles a habeas
petitioner to amend without surmounting the second-or-successive hurdle. This is controlling
authority completely at odds with the understanding on which the undersigned and Judge Frost
based their decisions in 2012-13. Tibbetts also rejects Sheppard’s assertion that the two claims
he seeks to add under Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016), are “newly arising”
because Hurst was decided after he filed his first habeas case.
Second, in Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016), the Sixth Circuit
expressly held a motion to amend to add a new claim is itself a second-or-successive habeas
application which requires permission from the circuit court before the District Court has
jurisdiction to proceed.
Third, Hurst, on which Sheppard’s Fifth and Sixth proposed grounds for relief depends,
does not apply retroactively on collateral review because the Supreme Court has not made it
retroactive and a claim depending on Hurst cannot escape classification as second-or-successive
because Hurst was not decided while Sheppard’s first habeas case was pending. In re Coley, ___
F.3d ___, 2017 U.S. App. LEXIS 17516 (6th Cir. Sept. 11, 2017).
Thus the law of the case doctrine does not support finding Sheppard’s original Petition or
his Motion to Amend are not second-or-successive.
Objection Two: This Case Attacks a Different Judgment than the First Case
Under Magwood v. Patterson, 561 U.S. 320 (2010), and King v. Morgan, 807 F.3d 154,
156 (6th Cir. 2015), a second-in-time habeas application escapes the second-or-successive bar if
it attacks a different judgment than the first application, even if the new judgment is entered on
the same underlying conviction. While no court has entered a new judgment on Sheppard’s
underlying conviction, he claims his judgment was “constructively amended” when Ohio
switched in 2001 to the exclusive use of lethal injection for executions. Although Sheppard
argues this point at length, he presents no precedent from this or other circuits finding that a
“constructive” amendment of a judgment will avoid the second-or-successive bar. His argument
by analogy to amendment of indictments is unpersuasive because there is a constitutional right to
be indicted by a grand jury, but no constitutional right not to have the legislature change the
method of execution.
Objection Three: This Case Is Not an Abuse of the Writ
The Report does not characterize this case as an “abuse of the writ,” but does conclude
Sheppard could have made lethal-injection-invalidity claims in his first case after Ohio made
lethal injection the exclusive method of execution. Sheppard says he tried, but this Court
rebuffed his motion to amend (Objections, ECF No. 104, PageID 1696). He neglects to mention
that his motion to amend was made post-judgment and this Court’s denial was upheld on appeal.
He made no attempt to amend to add lethal injection invalidity claims between the time lethal
injection became exclusive (November 2001) and final judgment in his first case (March 2009).
Objection Four: Coley Is Distinguishable
The Report concluded that Coley, supra, was controlling precedent fatal to a number of
Sheppard’s arguments. Sheppard faults the Magistrate Judge for not sufficiently explaining
which of his arguments Coley undercuts (Objections, ECF No. 104, PageID 1698).
In Coley the Sixth Circuit held that Hurst does not apply retroactively on collateral
review. That necessarily implies Hurst is not available in this case to attack collaterally a
judgment entered many years before Hurst was decided. Nor was Coley able to escape the
second-or-successive classification by saying his claim depends on Hurst which was not decided
while his first habeas application was pending. That is fatal to Sheppard’s argument that his
Hurst claim newly arose when Hurst was decided and is thus not second-or-successive.
Risks of Error
Despite filing twenty-eight pages of Objections, Sheppard makes no comment on the
Report’s observation that the risks of error in deciding a second-or-successive issue is “grave for
a District Court or the Warden, but present no risk for a capital habeas petitioner.” (Report, ECF
No. 103, PageID 1671.) If this Court decides this case is not second-or-successive and the Court
of Appeals later decides we were wrong, we will have wasted years adjudicating a case over
which we did not have jurisdiction. Burton v. Stewart, 549 U.S. 147 (2007). If, on the other
hand, we decide this case is second-or-successive, the Sixth Circuit on transfer will quickly
correct our error and we can proceed. 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. 163356, 2017 U.S. App. LEXIS 1032 (6th Cir. Jan. 6, 2017). This Court should err on the side of
caution in exercising jurisdiction we may later be told we did not have. Louisville & Nashville
R. Co. v. Mottley, 211 U.S. 149, 152 (1908).
October 16, 2017.
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. Such objections shall specify the portions of the Report objected to and
shall be accompanied by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. 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, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).
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