Sheppard v. Warden Chillicothe Correctional Institution

Filing 58

ORDER - The Court adopts the Magistrate Judge's April 1, 2015 Decision and Order 52 ; Overrules Petitioner's appeal from that decision 53 , and Denies Petitioners third motion for modification of the scheduling order 48 .. Signed by Judge Gregory L. Frost on 4/8/15. (kn)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BOBBY T. SHEPPARD,
Petitioner,
v.
NORMAN ROBINSON, Warden,

Case No. 1:12-cv-198
JUDGE GREGORY L. FROST
Magistrate Judge Michael R. Merz

Respondent.
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court for
consideration of Petitioner’s Appeal from the April 1, 2015 Decision and Order of the Magistrate
Judge (ECF No. 53), Respondent’s response memorandum (ECF No. 56), and Petitioner’s reply
memorandum (ECF No. 57).1
The Sixth Circuit on December 17, 2013, remanded this case to the Court to reconsider
Petitioner’s method-of-execution claims in light of the new execution protocol that became
effective on October 10, 2013. (ECF No. 41.) This Court subsequently ordered Petitioner to file
any amendment or supplement to his method-of-execution within sixty (60) days of the date the
State of Ohio issued all reports stemming from its investigation into the January 16, 2014,
execution of Dennis McGuire. (ECF No. 42.) After Ohio adopted another execution protocol
effective April 28, 2014, Petitioner sought and received another extension of time—to October 2,

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The Magistrate Judge’s April 3, 2015 Scheduling Order did not permit the filing of a
reply memorandum. (ECF No. 54.) This Court therefore STRIKES the impermissible filing.
(ECF No. 57.)
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2014—to amend his claims. (ECF No. 43.) On September 10, 2014, Petitioner again sought and
received an extension of time—to April 13, 2015—to amend his claims. (ECF No. 44.)
Petitioner is now before the Court with a third request to modify the scheduling order.
(ECF No. 48.) He seeks an extension of time to March 21, 2016, to amend his claims. He bases
that request on the premise that he requires sixty (60) days from the first execution that Ohio
conducts under the latest iteration of its execution protocol, scheduled for January 21, 2016, to
gather the facts and evidence necessary to meaningfully amend his method-of-execution claims.
Petitioner also posits that the passage by the Ohio General Assembly of an “execution secrecy”
law (“House Bill 663”), as well as the United States Supreme Court’s acceptance of a § 1983
case challenging the drugs that Oklahoma uses to conduct executions, provide additional reasons
for granting a year-long extension. The Magistrate Judge disagreed. And so does this Court.
The Magistrate Judge pointedly observed the following:
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 Ohio 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.
(ECF No. 52, at Page ID # 593.) The Magistrate Judge proceeded to offer three reasons for
denying Petitioner’s request. First, the Magistrate Judge noted that Ohio has in place a protocol
that presumptively it will use to execute Petitioner and that the only claims pending in this
proceeding are method-of-execution challenges. (Id. at Page ID # 594.) Second, the Magistrate
Judge observed that continuing to stay executions (or delay indefinitely the adjudication of

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method-of-execution habeas corpus claims) will deprive the Sixth Circuit of the opportunity to
provide clearer guidance as to how district courts should treat method-of-execution claims raised
in habeas corpus. To that point, the Magistrate Judge also discounted the Oklahoma case upon
which Petitioner relies, not only because it targets a drug that Ohio has removed from its
execution protocol, but also because the Supreme Court is not likely to issue a decision on that
case until the end of the term. Finally, the Magistrate Judge pointed out that the undersigned has
already upheld the constitutionality of House Bill 663.
Petitioner has appealed the Magistrate Judge’s decision. This Court, when reviewing a
magistrate judge’s order on non-dispositive matters, applies a “clearly erroneous or contrary to
law” standard. See, e.g., United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). Petitioner
asserts that the Magistrate Judge’s decision is clearly erroneous and contrary to law because none
of the reasons the Magistrate Judge cited for denying Petitioner’s request addresses the
justifications upon which this Court has previously relied in granting Petitioner extensions of
time to amend his claims. (ECF No. 53, at Page ID # 600-08.) The Court disagrees.
The Sixth Circuit remanded the instant case to this Court so that Petitioner could amend
his method-of-execution claims in light of a new execution protocol that Ohio issued after this
Court entered its original judgment denying Petitioner’s method-of-execution habeas claims.
(ECF No. 42, at Page ID # 435-36.) This Court subsequently extended the time for Petitioner to
amend his claims because of an inkling that the contents of any report(s) issued by the State of
Ohio concerning the January, 2014 execution of Ohio inmate Dennis McGuire might affect
Petitioner’s amendments. Neither that inkling, nor any of the reasons that Petitioner offers now,
are sufficient to justify extending until a year from now the time for Petitioner to amend his

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method-of-execution habeas corpus claims.
The fact that Ohio may, or even is likely to, modify or replace its execution protocol
some day does not justify granting an extension today. (ECF No. 53, at Page ID # 602.) In the
event that Ohio does modify or replace its execution protocol, nothing from this Order prevents
Petitioner from seeking an extension at that time. The Magistrate Judge’s decision in that regard
was not clearly erroneous or contrary to law.
The fact that Petitioner is attempting to revive certain claims that this Court already
rejected in Petitioner’s first-in-time habeas corpus action does not logically justify the extension
of time he seeks in the instant, separate second-in-time habeas corpus action. (Id. at Page ID #
602-03.) The Magistrate Judge’s decision in that regard was not clearly erroneous or contrary to
law.
The fact that Petitioner has identified but laudably opted not to pursue other means of
litigating his method-of-execution challenges that could take even longer than the instant case he
is litigating is a specious basis upon which to request what he appears to characterize as a
relatively less egregious year-long extension of time. (Id. at Page ID # 603.) The Magistrate
Judge’s decision in that regard was not clearly erroneous or contrary to law.
Petitioner’s arguments suggesting that the Sixth Circuit has evidenced no uncertainty in
the handling of method-of-execution habeas corpus claims and that the instant case does not
deserve to be a “test case” for “clarification” purposes does not justify granting the year-long
extension Petitioner seeks. (Id. at Page ID # 603-05.) The Magistrate Judge’s reliance in that
regard was not clearly erroneous or contrary to law.
The Court disagrees with Petitioner’s assertion that the Magistrate Judge misunderstands

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the nature of the In re Ohio Execution Protocol Litigation that is pending before this Court. (Id.
at 605-07.) In fact, the differences between the nature of that litigation and the instant case
crystalize the reason this Court will not grant Petitioner’s request for an extension. Although
method-of-execution challenges raised in § 1983 litigation in the Sixth Circuit may rely on factspecific or inmate-specific data from execution to execution, method-of-execution challenges
raised in habeas corpus do not because they are global in nature. Against a constantly changing
landscape, this Court previously granted extensions of time out of an abundance of caution. The
Court is now of the view that it must temper the exercise of that caution with a recognition that
the constantly changing landscape of carrying out executions in Ohio does not justify indefinitely
postponing adjudication of method-of-execution habeas corpus claims.
The Court agrees with the Magistrate Judge in discounting Petitioner’s reliance on the
United States Supreme Court’s decision to review a § 1983 case raising several challenges to
Oklahoma’s execution policy, procedures, and practices. Whatever guidance the Supreme Court
may eventually provide concerning those § 1983 claims, it does warrant now extending until
next year the time for Petitioner to amend his method-of-execution habeas corpus claims.
Finally, the Court is of the view that nothing about its decision in Phillips v. DeWine
concerning House Bill 663 justifies extending until next year the time for Petitioner to amend his
method-of-execution habeas corpus claims. (ECF No. 53, at Page ID # 607-08.) The Magistrate
Judge’s decision in that regard was not clearly erroneous or contrary to law.
The Court ADOPTS the Magistrate Judge’s April 1, 2015 Decision and Order (ECF No.
52), OVERRULES Petitioner’s appeal from that decision (ECF No. 53), and DENIES
Petitioner’s third motion for modification of the scheduling order (ECF No. 48).

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Petitioner shall have until and including April 13, 2015 to amend or supplement his
method-of-execution claims. Respondent shall have thirty (30) days to file an amended Return
of Writ. Petitioner shall have thirty (30) days to file an amended Traverse/Reply.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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