Sheppard v. Warden Chillicothe Correctional Institution

Filing 52

DECISION AND ORDER DENYING PETITIONER'S THIRD MOTION FOR MODIFICATION OF SCHEDULING ORDER - Petitioner's Third Motion to Modify Scheduling Order and Extend Time to Amend or Supplement His Method-of-Execution Claims (Doc. No. 48) is DENIED. Signed by Magistrate Judge Michael R Merz on 4/1/2015. (kpf1)

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 Gregory L. Frost
Magistrate Judge Michael R. Merz

-vsNORMAN ROBINSON1, Warden,
Chillicothe Correctional Institution,
:
Respondent.

DECISION AND ORDER DENYING PETITIONER’S THIRD MOTION
FOR MODIFICATION OF SCHEDULING ORDER

This capital habeas corpus case is before the Court on Petitioner’s Third Motion to Modify
Scheduling Order and Extend Time to Amend or Supplement His Method-of-Execution Claims
(Doc. No. 48). Respondent opposes the Motion (Doc. No. 50) and Petitioner has filed a Reply in
support (Doc. No. 51). Petitioner’s current date to amend or supplement is April 13, 2015
(Notation Order granting Doc. No. 44). He seeks a full year’s extension to March 21, 2016.
Sheppard’s reasons for seeking the extension are that he previously received extensions
until sixty days after the then-scheduled execution of Ronald Phillips which was to have taken
place on February 11, 2015, and has now been re-scheduled as the next Ohio execution for January
1

Petitioner notes that Charlotte Jenkins has succeeded Norman Robinson as Warden at Chillicothe Correctional
Institution. She is accordingly substituted as Respondent by operation of law. Fed. R. Civ. P. 25. However, the
caption is not to be modified except on court order.

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21, 2016. He asserts that the same reasons supporting the prior extensions apply again: there is a
new execution protocol that has not yet been used, such that its first use will be “experimental”;
and (2) the drugs to be used will be made by a compounding pharmacy and Ohio has no experience
yet using compounded drugs. New reasons said to support the extension are (1) newly-enacted
House Bill 663, referred to be Sheppard as the “execution secrecy law,” will change the way Ohio
conducts executions and is the subject of separate litigation; and (2) the United States Supreme
Court has granted certiorari in a § 1983 case involving the constitutionality of Oklahoma’s lethal
injection protocol in Glossip v. Gross, 135 S.Ct. 1173,2 190 L. Ed. 2d 929 (Jan. 23, 2015).
Respondent opposes the Motion because (1) Ohio’s current protocol calls for thiopental
sodium and pentobarbital which “have been universally recognized as constitutional,” (2)
Sheppard’s habeas case(s) have been pending for fifteen years, and (3) § 1983 litigation is the
proper forum for lethal injection protocol challenges.
The logic of Sheppard’s position and that of his counsel who have filed similar motions in
other pending capital cases in this Court, seems to be that all lethal injection challenges in Ohio3
should proceed serially. That is, because each execution will be in some way different from every
other execution, all lethal injection litigation should be put on hold until all data from the last
execution is discovered, analyzed, and presented to the Court as a reason for stopping the next
execution. This logic is superbly suited to the abolitionist goal of stopping all executions.
However, it avoids the Court’s duty to deal with individual cases involving particular judgments.
2

The case was originally captioned “Warner v. Gross,” but the Supreme Court refused to stay the execution of
Charles Warner, who was executed by the state of Oklahoma on January 15, 2015, just days before the Court stayed
the executions of the remaining three petitioners in the case. Since Warner’s execution the case has been captioned
“Glossip v. Gross.”
3
Given the citation of cases from other States, the logic may be that all lethal injection protocol cases in the nation
should proceed seriatim.

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The Court DENIES Sheppard’s motion for the following reasons:
First, there is an execution protocol in place which is presumptively the protocol which will
be used when Sheppard is executed. The lethal injection protocol challenge is the only claim that
Sheppard presently has, since his other claims have been rejected. Sheppard v. Bagley, 657 F.3d
338, 348 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2751 (2011). The continued
pendency of this case and the concomitant stay of execution depend on there being an extant
pleading challenging the presumptive method of execution.

It is inappropriate to stay an

execution in this or any case because at some time in the future the State may promulgate a new
protocol as to which Sheppard may have viable constitutional objections.
Secondly, the Sixth Circuit’s direction to District Courts regarding the handling of these
claims is less than crystal clear. Compare Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), with
Scott v. Houk, 760 F.3d 497 (6th Cir. 2014); and Frazier v. Jenkins, 770 F.3d 485 (6th Cir. 2014).
If all lethal injection challenges are put on hold and then handled serially, the Sixth Circuit will
have very few opportunities to provide clearer guidance. Whatever guidance the Supreme Court
may provide in Glossip probably will come by the end of the current term. The decision may not
be helpful because the execution drug in question is midazolam which is not part of the current
Ohio protocol.
Third, Judge Frost has upheld the constitutionality of House Bill 663. Phillips v. Dewine,
2015 U.S. Dist. LEXIS 18695 (S.D. Ohio Feb. 17, 2015). Although that decision has been
appealed, the Sixth Circuit has not interfered in any way with the judgment (See docket in Case
No. 2:14-cv-2730).
Petitioner’s Third Motion to Modify Scheduling Order and Extend Time to Amend or

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Supplement His Method-of-Execution Claims (Doc. No. 48) is DENIED.

April 1, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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