Sheppard v. Warden Chillicothe Correctional Institution

Filing 28

REPORT AND RECOMMENDATIONS ON WARDEN'S MOTION TO DISMISS - It is respectfully recommended the Warden's Motion to Dismiss be denied. Objections to R&R due by 9/14/2012. Signed by Magistrate Judge Michael R Merz on 8/28/2012. (kpf1)

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

Case No. 1:12-cv-198
:

District Judge Gregory L. Frost
Magistrate Judge Michael R. Merz

-vsNORMAN ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON WARDEN’S MOTION TO
DISMISS
This capital habeas corpus case is before the Court on Respondent Warden’s Motion to
Dismiss for failure to state a claim cognizable in habeas corpus and for abuse of the writ (Doc. No.
16). Petitioner has filed a Memorandum in Opposition (Doc. No. 18), but the Warden has not
filed a reply in support. Oral argument on the parallel motion in Gapen v. Bobby, Case No.
3:08-cv-280, was held on August 9, 2012. Counsel for Petitioner Gapen are also counsel for
Petitioner Sheppard and were able to argue as to this case as well.
Although no relevant rule is cited by the Warden, the Motion is presumably made under
Fed. R. Civ. P. 12(b)(6). Such motions are classified as dispositive under 28 U.S.C. § 636(b) and
Fed. R. Civ. P. 72, requiring a recommendation from a Magistrate Judge to whom the case has
been referred.
Sheppard pleads the following Grounds for Relief:
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FIRST GROUND FOR RELIEF: SHEPPARD'S EXECUTION
WILL VIOLATE THE EIGHTH AMENDMENT BECAUSE
OHIO'S LETHAL INJECTION PROTOCOL WILL RESULT IN
CRUEL AND UNUSUAL PUNISHMENT.
SECOND
GROUND
FOR
RELIEF:
SHEPPARD'S
EXECUTION WILL VIOLATE THE FOURTEENTH
AMENDMENT BECAUSE OHIO'S LETHAL INJECTION
PROTOCOL WILL DEPRIVE HIM OF EQUAL PROTECTION
OF THE LAW.
(Petition, Doc. No. 2.)
The Warden first argues that Sheppard’s two claims are not cognizable in habeas corpus
because they would not invalidate his death sentence. For the reasons given in Gapen v. Bobby,
Case No. 3:08-cv-280, Report and Recommendations of August 27, 2012 (Doc. No. 165), the
Magistrate Judge concludes this argument is precluded by the Sixth Circuit’s decision in Adams v.
Bradshaw, 644 F.3d 481 (6th Cir. 2011). The first argument for dismissal should therefore be
rejected.
The Warden next contends that the filing of this second petition which addresses a
conviction and sentence already final on appeal constitutes an abuse of the writ and should be
dismissed on that basis (Motion, Doc. No. 16, PageID 111-112).
The Magistrate Judge has already concluded that this is not a second or successive petition
within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No
104-132, 110 Stat. 1214)(the "AEDPA")(Report and Recommendations on Remanded Issue, Doc.
No. 19). The Warden has filed Objections (Doc. No. 21) to which Petitioner has responded (Doc.
No. 26). Judge Frost has recommitted the Report and Recommendations (Doc. No. 22) and that
issue will be dealt with in a supplemental report and recommendations on the remanded issue and
not further discussed in this Report.
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As authority for dismissing the case as an abuse of the writ, the Warden relies on
McCleskey v. Zant, 499 U.S. 467 (1991), a decision handed down before the AEDPA was adopted
in 1996. Assuming abuse of the writ remains available as a defense in a case which satisfies the
second or successive test in AEDPA, the Warden argues Petitioner cannot show excusing cause
and prejudice for not including these two claims in his prior case. The Warden then cites a
number of prior Ohio cases in which capital habeas corpus petitioners made constitutional attacks
on lethal injection as a method of execution (Doc. No. 16, PageID 112).
The Warden also cites Hill v. McDonough, 547 U.S. 573 (2006). In that case the Supreme
Court approved use of § 1983 litigation to challenge a lethal injection procedure, essentially
following Nelson v. Campbell, 541 U.S. 637 (2004). Without expressly discussing whether the
abuse of the writ doctrine survives adoption of AEDPA, the Court cited its prior holding in Gomez
v. United States District Court for the Northern District of California, 503 U.S. 653 (1992), in
which it vacated a stay of execution granted by the en banc Ninth Circuit to Robert Alton Harris
because he had filed four unsuccessful habeas applications and had waited until the eleventh hour
to file this challenge. The Court emphasized the equitable nature of a stay of execution and that it
could be denied where a petitioner used abusive litigation tactics.
The abuse of the writ doctrine had been part of the habeas statute until AEDPA was
adopted and also part of the Rules Governing § 2254 Cases until they were revised in light of
AEDPA. Whether the doctrine survives adoption of AEDPA is a question on which neither party
cites authority.
Assuming the abuse of the writ doctrine survives AEDPA, this filing is not an abuse of the
writ. Sheppard’s Second Ground for Relief mirrors Ground Twenty-Five in Gapen v. Bobby,

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supra. At oral argument, Petitioner’s counsel explained that claim as follows: “So the crux of
the argument is that the State does not follow its own law in applying and administering an
execution to [sic] an inmate; and therefore, the inmates are receiving disparate treatment under the
law.” (Transcript of oral argument, filed in Gapen at Doc. No. 164, PageID 4530). The law in
question is Ohio Revised Code § 2949.22(A) and the extant lethal injection protocol. Id. at
4531.

The fundamental right being burdened, allegedly in violation of the Fourteenth

Amendment, is the Eighth Amendment right to be free from cruel and unusual punishment. Id.
at 4531-4532. The claim is not that there is a substantial risk of severe pain, but that there is some
risk of severe pain. Id. at 4532-4533. There is also a risk “of denial of the procedural
safeguards that the Supreme Court has found are absolutely critical for Eighth Amendment
purposes, that the denial of those procedural safeguards in the form of the written policy is a
burden on the fundamental rights.” Id. at 4533.
Another fundamental right that I believe we cited was the First
Amendment right to freedom of speech that we believe is being
burdened by their unequal application of the law regarding the last
words. It’s essentially just discretionary on whether the warden is
going to allow the inmate to speak.

Id. at 4534.
Third one can be that, you know, rights under the Ninth
Amendment, Your Honor. The line for that actually goes back to
the Slaughter-House Cases [1] where the Court talked about, well,
yeah, it's the Ninth Amendment and also the privileges and
immunities clause. I'm getting things mixed up here. The
privileges and immunities clause was actually, I mean, we all know
that the Slaughter-House case has essentially vitiated any functional
import for the privileges and immunities clause but . . . interestingly
one of the parts of the privileges and immunities clause that still
1

83 U.S. 36, 21 L. Ed. 394 (1873).

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explicitly remains viable in the Slaughter-House case itself was this
fundamental right to individual, I'm blanking out with what the
terms of art are, but forgive me, Your Honor, I'm mixing up
privileges and immunities and the 14th Amendment and
fundamental rights under the Ninth Amendment. The privileges and
immunities goes to access to the courts. That's the fundamental
right. . . . The Ninth Amendment arguments relate to just
fundamental rights to bodily integrity and to things of that nature.”
Id. at 4535.
Later in the argument, Petitioner’s counsel “circle[d] back” to the burdened fundamental
rights question. Id. at 4549.
So the specific due process rights, you know, the one that initially
springs to mind is the due process that should be guaranteed by the
statutory language in Ohio guaranteeing a quick and painless
execution and the right to be able to expect a quick and painless
execution.
You know, so those have not been fully, completely fleshed out, but
again, we're here on a motion to dismiss and so it's not, you know,
that may be an issue for summary judgment or on down the line, but
that's not necessarily the matter at hand as we would see it.
Id. at 4550.
To establish that all these claims arose after completion of the state court proceedings in
this case, Petitioner’s counsel asserted that they were based on newly-discovered evidence
obtained in the Ohio Lethal Injection Protocol Case in June, 2011, through January, 2012. Id. at
4546.
As noted in Gapen, several judges of this Court have relied on those dates to find the
amendments raising lethal injection claims are not barred by the statute of limitations. The same
facts preclude the abuse of the writ doctrine and are also relied on in this judge’s recommendation
that the Petition not be dismissed as second or successive (Doc. No. 19).
As this judge wrote in Gapen, I have “still not been led to an understanding of how a
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blanket equal protection attack on lethal injection executions can arise anew from state adoption of
a new protocol for such executions.” But if there is such a claim – and the Warden does not
challenge here the substance of Petitioner’s pleading – it arose after the prior Petition was fully
adjudicated and thus is not barred by the abuse of writ doctrine.
Therefore the Warden’s Motion to Dismiss should be denied.

August 28, 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. 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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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