Sheppard v. Warden Chillicothe Correctional Institution

Filing 114

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - The Magistrate Judge again recommends the Court transfer this case to the Sixth Circuit for a determination under 28 U.S.C. § 2244(b) of whether it may proceed. Objections to R&R due by 1/31/2018. Signed by Magistrate Judge Michael R. Merz on 1/17/2018. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
BOBBY T. SHEPPARD,
:
Petitioner,

Case No. 1:12-cv-198
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsCHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner’s Objections
(“Objections,” ECF No. 112) to the Magistrate Judge’s Supplemental Report and
Recommendations (“Supplemental Report,” ECF No. 106) on remand from the Sixth Circuit.
District Judge Black has recommitted the matter for reconsideration in light of the Objections
(ECF No. 113).
The question before the Court is whether Sheppard’s Petition (ECF No. 2) and his
Motion to File a Second Amended and Supplemental Petition (ECF No. 100) are second-orsuccessive habeas applications which require permission from the circuit court under 28 U.S.C. §
2244(b) before this Court has jurisdiction to proceed.

The original Report and

Recommendations on this question (“Original Report,” ECF No. 103) concluded that both the
Petition and the Motion must be transferred to the Sixth Circuit. The Supplemental Report
reached the same conclusion after reconsideration in light of Petitioner’s first set of Objections
(ECF No. 104).
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Sheppard raises five objections to the Supplemental Report which will be considered
seriatim.

Objection One: The District Judge’s ruling that Sheppard’s claims are not second-orsuccessive has not been subject to an intervening change in law.

Sheppard first objects that the law of the case bars a second-or-successive conclusion
now because there has not been a material change in the law since the prior ruling in 2013.
When this case was initially filed, it was assigned to District Judge Gregory Frost and the
undersigned Magistrate Judge because both of them had been assigned Sheppard’s first habeas
case attacking his aggravated murder conviction and death sentence, Case No. 1:00-cv-493. That
case ended in denial of habeas relief. Sheppard v. Bagley, 604 F. Supp. 2d 1003 (S.D. Ohio Mar.
4, 2009), aff’d, 657 F.3d 38 (6th Cir. 2011); cert denied sub nom. Sheppard v. Robinson, 567 U.S.
910 (2012). Sheppard’s effort to reopen that case in light of Martinez v. Ryan, 566 U.S. 1
(2012), was also unsuccessful. Sheppard v. Robinson, 2013 U.S. Dist. LEXIS 5565 (S.D. Ohio
Jan. 14, 2013), aff’d., 807 F.3d 815 (6th Cir. 2015), cert. denied, 137 S.Ct. 1201 (2017).
Sheppard filed this second-in-time habeas petition March 9, 2012, pleading that his
execution under Ohio’s then extant (as of September 18, 2011) lethal injection protocol would
violate his Eighth Amendment and Equal Protection rights (ECF No. 2). Over the State’s
objection, Judge Frost ruled that the petition was not second-or-successive because Sheppard’s
claims were “newly-arising” when the 2011 protocol was adopted (ECF No. 35, PageID 360-62).
This is the prior law that Sheppard says remains the controlling law of the case and has not been
changed by intervening decisions (See Objections, ECF No. 112, PageID 1736, citing ECF No.
35). The Magistrate Judge respectfully disagrees.

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The Report and Supplemental Report rely on In re Tibbetts, 869 F.3d 403 (6th Cir. 2017),
cert. denied, 2018 U.S. LEXIS 287 (Jan. 8, 2018), and Moreland v. Robinson, 813 F.3d 315 (6th
Cir. 2016), as significant changes in the applicable decisional law since 2013.
Tibbetts was before the Sixth Circuit on a transfer order from this Court determining that
Tibbetts’ second-in-time habeas petition was second-or-successive. He filed a motion to remand
“arguing that his second habeas petition is not second or successive because his new claims were
unripe when he filed his initial habeas petition.” 869 F.3d at 405. The circuit court found that
Tibbetts had made a general challenge to execution by lethal injection in his first petition “and he
has not identified practices or procedures from the October 2013 or November 2016 protocols or
such other circumstances as would render his instant challenge to the validity of his sentence
newly ripe." Id. at 408 (internal quotation marks omitted).
The Objections attempt to distinguish Tibbetts on the ground that Tibbetts challenged a
“particular procedure” for execution whereas Sheppard’s “is a challenge to Ohio’s ability to
execute him in a constitutional manner under any method permitted by Ohio law.” (Objections,
ECF No. 112, PageID 1737.) That distinction is incorrect. A comparison of Sheppard’s four
proposed lethal injection invalidity claims with those made by Tibbetts shows them to be
substantively identical (Compare, Raymond Tibbetts Proposed Amended Petition, Case No.
1:14-cv-602, ECF No. 57-1, with Sheppard’s Proposed Second Amended and Supplemental
Petition, ECF No. 100-1). Sheppard’s purported distinction, made by at least one of the same
attorneys who represents Tibbetts, is disingenuous at best. Tibbetts certainly stands for the
proposition that claims under new Ohio execution protocols are not “newly arising” so as to
avoid the second-or-successive bar.
In Moreland v. Robinson, 813 F. 3d 315 (6th Cir. 2016), the Sixth Circuit affirmed this

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Court’s denial of Moreland’s motions for relief from judgment and to amend his original habeas
petition, despite finding this Court lacked jurisdiction to decide the motions because they were in
effect second-or-successive habeas applications. Sheppard attempts to distinguish Moreland in
that the circuit recognized there can be post-judgment motions to amend in habeas that are not
second-or-successive, i.e., when made after judgment but before the time for appeal has run. Id.
at 321, citing Clark v. United States, 764 F.3d 653 (6th Cir. 2014). Sheppard’s counsel write:
“Here, there is no dispute that Sheppard is moving to amend a petition he hasn’t lost on the
merits, let alone exhausted appellate remedies.” (Objections, ECF No. 112, PageID 1738). This
is less persuasive than the purported Tibbetts distinction. Sheppard is not trying to amend his
first habeas petition post-judgment as Moreland was. Instead, he is trying to avoid that process
by filing an entirely new petition.1
While Tibbetts and Moreland are important changes in the relevant law since 2013, even
more significant is In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v.
Jenkins, 199 L. Ed. 2d 350 (2017). Campbell was decided October 26, 2017, nine days after the
Supplemental Report was filed and therefore not discussed in that document.
Campbell, like Tibbetts, was before the Sixth Circuit on a transfer order from this Court
upon a finding that Campbell’s second-in-time petition was second-or-successive and that he
needed permission to proceed under 28 U.S.C. § 2244(b). As they had done in Tibbetts,
Campbell’s lawyers moved to remand on their claim the petition was not second-or-successive.
The Sixth Circuit denied remand. It held Campbell’s petition was indeed second-or-successive
and ultimately dismissed his petition because his claims were not cognizable in habeas, but only
in a § 1983 case. 874 F.3d at 467.2

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2

Note that Sheppard also tried the 60(b) route, albeit unsuccessfully.
As the Sixth Circuit recognized, Campbell had brought such a § 1983 proceeding which was being heard on

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In Campbell the Sixth Circuit distinguished the Adams v. Bradshaw opinions3 under
which this Court had been allowing lethal injection invalidity claims to be pleaded in habeas
corpus.

But Sheppard objects that “[n]othing has changed the fact that Sheppard’s lethal

injection claims remain cognizable under Adams I.” (Objections, ECF No. 112, PageID 1739.)
Sheppard reaches this conclusion by discounting the Campbell court’s discussion of Adams III.
Id. In Campbell the Sixth Circuit concluded the relevant language in Adams III relied on by this
Court to allow lethal injection invalidity claims after Glossip v. Gross, 135 S.Ct. 2726 (2015),
was dictum and therefore not binding on the Campbell panel. 874 F.3d at 463-64.
Not so, says, Sheppard: because Adams III is published, Campbell cannot overrule it
(Objections, ECF No. 112, PageID 1739), relying on well-settled Sixth Circuit precedent to the
effect that a subsequent panel of the circuit court cannot overruled the published decision of a
prior panel.
Sheppard’s statement of this rule is far too broad.

It is true that a later panel cannot

overrule the holding of a prior panel in a published opinion. But that is not what the Campbell
panel purported to do. Instead, it characterized the language this Court had been treating as
controlling to be instead dictum and therefore not binding.

As a matter of academic

jurisprudence, what constitutes holding and what constitutes dictum in a court opinion is a much
mooted question. But we do not read Campbell in an academic setting. As a court controlled by
the published decisions of the Sixth Circuit, we are bound to treat what it declares to be dictum
in a prior opinion as being dictum. Campbell is published. No en banc Sixth Circuit decision or
preliminary injunction the very week Campbell was handed down. Campbell did not prevail in that hearing and he
did not appeal before his scheduled November 15, 2017, execution date. However, that execution was halted in
process by ODRC Director Gary Mohr and Campbell has since appealed to the Sixth Circuit. The case is pending at
Sixth Circuit Case No. 17-4221.
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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), 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.

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Supreme Court decision tells us that it is wrong.4 Our place is to obey.
There is potentially a serious price for disobedience. If this Court were to find the instant
petition and motion to amend were not second-or-successive habeas applications and proceeded
to decide them on the merits after however many thousands of pages of evidence and briefing
were filed on the merits, we would be subject to being told after all that work that we did not
have jurisdiction. Unquestionably, district courts do not have jurisdiction to decide second-orsuccessive habeas applications on the merits. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016);
Burton v. Stewart, 549 U.S. 147 (2007). Indeed, the Supreme Court has recently reinforced the
importance of deciding jurisdictional questions first in habeas cases. Buck v. Davis, 580 U.S.
___, 137 S.Ct. 759, 197 L. Ed. 2d 1 (2017). On the other hand, if the panel to which this case is
transferred decides the petition is not second-or-successive and states cognizable claims, it will
quickly tell us so and we can proceed with that assurance.
Sheppard next argues that Campbell does not impact his “statutory claim”5 set out in his
Fourth Ground for Relief (Objections, ECF No. 112, PageID 1746-47). In Turner v. Hudson,
2017 U.S. Dist. LEXIS 202425 (S.D. Ohio Dec. 8, 2017), and Bays v. Warden, 2017 U.S. Dist.
LEXIS 200400 (S.D. Ohio Dec. 6, 2017), the undersigned rejected this argument, noting that
“[a]lthough Campbell only expressly addressed Eighth Amendment claims, its logic [method of
execution claims, per Glossip, must be brought in a § 1983 case] is fully applicable to the
statutory fundamental defect claim.” Turner, 2017 U.S. Dist. LEXIS 202425 at *9-10, quoting
Bays, 2017 U.S. Dist. LEXIS 200400 at *22 (internal quotation marks omitted).

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Indeed, the Supreme Court passed up a chance to tell us Campbell was wrong when it denied certiorari.
As pleaded, this is not a simple claim that Ohio executions violate a federal statute, but that the relevant federal
statutes preempt Ohio execution law and executions are therefore forbidden by the Supremacy Clause.
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Objection Two: Sheppard’s Petition challenges a “new judgment” and is therefore not
second-or-successive.

The appellate courts have recognized that a new judgment in a criminal case re-sets the
counter in habeas corpus and allows a fresh attack on a conviction. See Magwood v. Patterson,
561 U.S. 320 (2010); King v. Morgan, 807 F.3d 154, 156 (6th Cir. 2015); In re Stansell, 828 F.3d
412 (6th Cir. 2016).

Sheppard attempts to come within this doctrine by arguing that his

sentencing judgment was constructively modified when Ohio changed from a choice between
electrocution and lethal injection to prescribe lethal injection alone. Sheppard’s counsel wrote:
Here, Sheppard’s claims are not second-or-successive under the
Magwood/King rule because they attack a constructively amended
(modified) sentencing judgment that is necessarily different from
the judgment at issue in Sheppard’s initial habeas corpus petition.
Sheppard’s sentencing judgment was entered on May 30, 1995.
Sheppard v. Bagley, No. 1:00-cv-493, Return of Writ, App’x Vol.
1, p.397. As discussed above, a death sentence under Ohio law at
that time was automatically a sentence of death by electrocution;
death by lethal-injection was only applicable to Sheppard if he
affirmatively chose lethal injection as his manner of execution one
week before his scheduled date of execution. See 1993 Ohio HB
571 (enacting, on July 7, 1994, Ohio Revised Code § 2949.22 that
was in effect on May 30, 1995). Sheppard filed his initial federal
habeas petition on June 20, 2000. At the time he filed his initial
petition, therefore, Sheppard was still subject to a judgment that
necessarily mandated his execution by electrocution absent
Sheppard choosing otherwise.
More than a year later, on November 21, 2001, Ohio changed its
execution law, abolishing electrocution as a lawful manner of
execution in this state. Because Sheppard did not affirmatively
choose lethal injection pursuant to the law under which he was
sentenced, Ohio’s change of law created only two possible
scenarios regarding Sheppard’s judgment[: either it was not
modified but is impossible because electrocution has been
eliminated, or it was constructively amended by the Ohio General
Assembly’s actions.]

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(Reply, ECF No. 102, PageID 1643-44.) The Magistrate Judge rejected this “constructive
amendment” theory in the Original Report (ECF No. 103, PageID 1672) and the Supplemental
Report (ECF No. 106, PageID 1707). Although the current Objections re-argue this point,
Sheppard still cites no decision by any court which has accepted this constructive amendment
extension of Magwood (ECF No. 112, PageID 1747-51).
The Objections criticize the Supplemental Report for not addressing the asserted analogy
between constructive amendment of the pleadings in a civil case to include matters tried by
consent and the constructive amendment proposed here, asserting the Warden “has at least
implicitly conceded that the sentencing judgment at issue here is different from the May 30, 1995
judgment.” (ECF No. 112, PageID 1750.) The Magistrate Judge is unaware of any such
concession and no record reference is given to support it. But even if Sheppard is arguably
correct, the prudent course for this Court is to transfer the case to the Sixth Circuit to allow it to
consider this argument before this Court expends considerable resources to litigate the Petition,
an expense that would be in vain if the circuit court eventually found we had no jurisdiction.

Objection Three: Sheppard Could Not Have Raised his Lethal-Injection-Invalidity Claims
in his First Case.
In the Supplemental Report, the Magistrate Judge concluded “Sheppard could have made
lethal-injection-invalidity claims in his first case after Ohio made lethal injection the exclusive
method of execution.” (ECF No. 106, PageID 1708.) Sheppard objects that “many of the factual
predicates on which he relies simply did not exist when his first petition was litigated,” citing
examples of changes in the protocol and how it “operates in the real world.” (Objections, ECF
No. 112, PageID 1751.) While that is true, it is immaterial. Sheppard does not have an

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execution date and the “real world” data about how the State of Ohio will execute him is likely to
change many times before that day comes.
Sheppard is a plaintiff in In re Ohio Execution Protocol Litig. Case No. 2:11-cv-1016
(the “Protocol Case”), an action under 42 U.S.C. § 1983 pending in this Court (under that or
prior case numbers) since shortly after the Supreme Court decided that method of execution
claims could be pleaded under § 1983. See Nelson v. Campbell, 541 U.S. 637 (2004). As the
Sixth Circuit pointed out in In re Campbell, supra, civil rights injunctive actions are ideally
suited to deal with ongoing changes in government activity that are alleged to be
unconstitutional. Such an action is forward-looking, both in terms and discovery and in terms of
relief. Why then do Sheppard’s counsel insist on litigating in both fora? Can the motive be
anything other than delay?

Objection Four: Sheppard’s Claim under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616
(2016), Are Not Barred by In re Coley, 871 F.3d 455 (6th Cir. 2017.)

In addition to his lethal injection invalidity claims, Sheppard seeks to add Grounds Five
and Six to plead claims for relief under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016),
which relate to his right to trial by jury.
In the Original and Supplemental Reports, the Magistrate Judge found these Hurst claims
were barred by In re Coley, 871 F.3d 455 (6th Cir. 2017)(ECF No. 103, PageID 1672-73, ECF
No. 106, PageID 1707). Sheppard says Coley is of “limited relevance” because he is not seeking
permission to proceed on a second-or-successive habeas application in that he denies this
Petition is second or successive (Objections, ECF No. 112, PageID 1752). Of course, whether
the Petition and Motion to Amend are second-or-successive applications is one of the questions

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before this Court.
Sheppard then argues that the second-or-successive provisions of the AEDPA in 28
U.S.C. § 2244(b)(2)(A) – which requires a petitioner to show retroactivity of a new Supreme
Court rule – are inconsistent with the retroactivity analysis of Teague v. Lane, 489 U.S. 288
(1989), which requires the State to plead non-retroactivity as an affirmative defense or forfeit it.
But, says Sheppard, since the Teague approach to retroactivity is constitutionally mandated,
Teague makes § 2244(b)(2) unconstitutional.

Consequently, “[t]he Court can avoid this

constitutional problem by allowing Sheppard to proceed with his claims now as a second-in-time
petition.” (Objections, ECF No. 112, PageID 1758).
Most of the legal inferences in this argument are unsupported by holdings of any
appellate court. What is not in doubt is that if this Court adopts Sheppard’s theory now and it is
then repudiated by the circuit court after litigating this case for however long it takes, the Court
will have wasted a great deal of time deciding issues over which it may not have jurisdiction.
The prudent course is to allow Sheppard an immediate opportunity to present his theories to the
Sixth Circuit by transferring the case.
Applying the Teague retroactivity analysis to this case, the Magistrate Judge concludes
that Hurst is not to be applied retroactively to cases, such as this, on collateral review. Hurst did
not adopt a new substantive constitutional rule and the procedural change it mandates it not a
“watershed” change. Every judge of this Court who has considered the issue has found Hurst is
not to be applied retroactively. See Smith v. Pineda, 2017 WL 631410 (S.D. Ohio Feb. 16,
2017)(Merz, M.J.); McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio Feb. 15,
2017)(Merz, M.J.); Gapen v. Robinson, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15,
2017)(Rice, D.J.); Davis v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep. 25,

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2017)(Sargus, Ch. J.); Lindsey v. Jenkins, Case No. 1:03-cv-702 (S.D. Ohio Sep. 25,
2017)(Sargus, Ch. J.); Myers v. Bagley, Case No. 3:04-cv-174 (S.D. Ohio Sep.
12,2017)(Marbley, D.J.)(unreported; available in that case at ECF No. 126); and Robb v. Ishee,
Case No. 2:02-cv-535 (S.D. Ohio Sep. 12, 2017)(unreported; available in that case at ECF No.
213). Of course, the decisions of one district judge do not bind other judges of the same court,
but they should be considered since we are all colleagues engaged in the enterprise of making
sense of the same body of law.

Objection Five: Although Sheppard Need Not Show Prejudice in Opposing Transfer, in
Fact He Will Be Prejudiced by a Transfer By Being Forced to Commit Perjury.

Finally, Sheppard objects that he will suffer great prejudice from transfer because he
would be required to sign the Sixth Circuit’s form for seeking permission to proceed on a
second-or-successive petition and he cannot do so without committing perjury (Objections, ECF
No. 112, PageID 1759).
Sheppard’s argument is that he would have to sign a form stating that he is seeking
permission to proceed on a second-or-successive habeas and that is not true since he does not
concede that his petition is second-or-successive. The form in question actually provides for this
contingency, stating:
If the district court transferred your petition or motion to this court
and you do not feel that you should be required to obtain prior
authorization, you must still complete this form. You may,
however, attach an additional statement explaining to the court
why you oppose the transfer.
Form S/S 2254 Authorization May 2017, obtained from the Sixth Circuit’s website,
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www.ca6.uscourts.gov (visited January 15, 2018).

Conclusion

Based on the foregoing analysis, the Magistrate Judge again recommends the Court
transfer this case to the Sixth Circuit for a determination under 28 U.S.C. § 2244(b) of whether it
may proceed.

January 17, 2018.
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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