Sheppard v. Warden Chillicothe Correctional Institution

Filing 75

DECISION AND ORDER DENYING RENEWED MOTION TO AMEND AND TRANSFERRING CASE TO THE SIXTH CIRCUIT - It is ORDERED that this case be transferred to the Sixth Circuit for a determination of whether it can proceed. The effective date of this transfer is STAYED until review of this Order by Judge Frost. Signed by Magistrate Judge Michael R. Merz on 2/16/2016. (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 Gregory L. Frost
Magistrate Judge Michael R. Merz

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

DECISION AND ORDER DENYING RENEWED MOTION TO
AMEND AND TRANSFERRING CASE TO THE SIXTH CIRCUIT

This capital habeas corpus case is before the Court on Petitioner’s second Motion for
Leave to File a Second Amended Petition (ECF No. 70). The Warden opposes the Motion (ECF
No. 72) and Sheppard has file a Reply in support (ECF No. 74).
Motions to amend under Fed. R. Civ. P. 15 are non-dispositive under 28 U.S.C. §
636(b)(1)(A) and thus come within the decisional authority of Magistrate Judges in the first
instance, in referred cases.
On September 16, 2015, the Magistrate Judge denied Sheppard’s first Motion for Leave
to File a Second Amended and Supplemental Petition with leave to re-file. “If he does so,” the
Order provides, “he must state plainly how the claims he wishes to plead here differ from the

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claims he has pled in In re Ohio Lethal Injection Protocol Litig., Case No. 2:11-cv-1016.” (ECF
No. 67, PageID 1020).1 The instant motion responds to that Order.

Procedural History

On August 19, 1994, Bobby Sheppard murdered the owner of a Cincinnati liquor store by
firing a single shot into the back of his head. A jury convicted him of aggravated murder and
aggravated robbery for this conduct and he was sentenced to death. Sheppard v. Bagley, 657
F.3d 338, 341 (6th Cir. 2011), cert. denied, ___ U.S. ___, 132 S.Ct. 2751 (2011).

After

exhausting his Ohio state court remedies, he filed a petition for writ of habeas corpus in this
Court June 20, 2000 (Case No. 1:00-cv-493). The petition’s dismissal with prejudice was
affirmed by the Sixth Circuit. Id. Two motions for relief from judgment have also been denied
in the original case.
This second-in-time habeas application was filed March 8, 2012 (ECF No. 2). In April
2012 the undersigned transferred the case to the Sixth Circuit for a determination of whether it
was a second-or-successive application (ECF No. 12). Without questioning the authority of a
Magistrate Judge to enter a transfer order, the Sixth Circuit remanded for this Court to make the
second-or-successive determination. In re: Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir.
May 25, 2012).
On remand, the Magistrate Judge recommended deciding that the Petition was not
second-or-successive because it was based on Ohio’s adoption of a new lethal injection protocol
1

Sheppard infers from the fact that the denial was without prejudice that the Magistrate Judge concluded the
amendment would not have been futile. (Reply, ECF No. 74, PageID 1161.) The inference is unwarranted.

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on September 18, 2011, and “[t]hat set of facts fits squarely within the Sixth Circuit precedent
cited above[2] applying Panetti and Martinez-Villareal to varieties of later-arising or laterripening claims other than competency to be executed.” (Report and Recommendations, ECF
No. 19, PageID 237.) District Judge Frost adopted that Report. (Order, ECF No. 35.) He then
dismissed the Petition and Sheppard appealed, but the Sixth Circuit remanded on Sheppard’s
motion and without explanation.

Sheppard v. Robinson, No. 13-3900 (6th Cir. Dec. 17,

2013)(unreported, copy at ECF No. 41).
After remand, Sheppard’s time to move to amend was extended several times on consent
of the Warden. Ultimately, Sheppard moved to amend, resulting in the denial without prejudice
of September 16, 2015.

Sheppard’s Motion to Amend

Sheppard now seeks to plead the following claims:
FIRST GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Sheppard because the only manner
available under the law to execute him violates his Eighth
Amendment rights.
I. Any drug DRC can procure to use to execute Sheppard
via lethal injection has a substantial, objectively
intolerable risk of causing unnecessary, severe pain,
suffering, degradation, humiliation, and/or disgrace in
violation of the Eighth Amendment, and Ohio has no
2

Referring to In re Salem, 631 F.3d 809 (6th Cir. 2011); Roberts v. Gansheimer, No. 10-2619, 2011 U.S. Dist.
LEXIS 154459 (N.D. Ohio Dec. 21, 2011) (Report and Recommendation of Vecchiarelli, J.J., adopted by Oliver,
D.J., at 2012 U.S. Dist. LEXIS 43348 (N.D. Ohio Mar. 29, 2012; In re Bowen, 436 F.3d 699 (6th Cir. 2006); and In
re Marsch, 209 Fed. App’x 481 (6th Cir. 2006).

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other manner of execution available to execute Sheppard
that complies with the Constitution.
II. Any drug DRC can procure to use to execute Sheppard
via lethal injection poses an objectively intolerable risk of
causing a lingering and/or undignified death in violation
of the Eighth Amendment, and Ohio has no other manner
of execution available to execute Sheppard that complies
with the Constitution.
III. The lack of legally available, effective drugs to
conduct lethal-injection executions will result in the
arbitrary and capricious imposition of the death penalty
on Sheppard in violation of the Eighth Amendment, and
Ohio has no other manner of execution available to
execute Sheppard that complies with the Constitution.
IV. The lack of legally obtainable, effective drugs to
conduct Sheppard’s lethal-injection execution, and the
reality that Ohio has no other manner of execution
available to execute Sheppard that complies with the
Constitution, will cause Sheppard psychological torture,
pain and suffering in violation of the Eighth Amendment.
V. The unavoidable variations inherent in Ohio’s lethalinjection system and DRC’s continued and consistent
inability to properly administer its execution protocols
present a substantial, objectively intolerable risk of
serious harm to Sheppard in violation of the Eighth
Amendment, and Ohio has no other manner of execution
available to execute Sheppard that complies with the
Constitution.
VI. Sheppard’s unique, individual physical and/or mental
characteristics will cause any execution by lethal injection
under Ohio law to violate the Eighth Amendment, and
Ohio has no other manner of execution available to
execute Sheppard that complies with the Constitution.
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SECOND GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Sheppard because the only manner
available for execution violates the Due Process Clause or
Privileges or Immunities Clause of the Fourteenth Amendment.
I. Execution by lethal injection under Ohio law will deny
Sheppard’s interests in expecting and receiving a quick
and painless death in violation of the Due Process Clause
of the Fourteenth Amendment, and Ohio has no other
manner of execution available to execute Sheppard that
complies with the Constitution.
II. Sheppard’s execution by lethal-injection under Ohio
law will be a human experiment on a non-consenting
prisoner in violation of the Due Process and Privileges or
Immunities Clauses of the Fourteenth Amendment, and
Ohio has no other manner of execution available to
execute Sheppard that complies with the Constitution.
THIRD GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Sheppard because the only manner of
execution available for execution violates the Equal Protection
Clause of the Fourteenth Amendment.
I. Equal Protection – Fundamental Rights
A. Underlying constitutional violations in Ohio’s lethal-injection
system substantially burden Sheppard’s fundamental rights, and
Ohio has no other manner of execution available to execute
Sheppard that complies with the Constitution.
B. Unavoidable variation inherent in Ohio’s lethal-injection system
substantially burdens Sheppard’s fundamental rights, and Ohio has
no other manner of execution available to execute Sheppard that
complies with the Constitution.
II. Equal Protection – “Class-of-One” Disparate Treatment
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FOURTH GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Sheppard because the only manner of
execution available for execution depends on state execution laws
that are preempted by federal law.
I. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the CSA)
of those drugs violate the CSA.
A. The Ohio lethal-injection statute and DRC’s
execution protocols, as written and as
implemented, purport to permit DRC to obtain
controlled substances used in executions without
a valid prescription, in violation of the CSA and
DEA regulations.
B. The Ohio lethal-injection statute and DRC’s
execution protocols, as written and as
implemented, purport to authorize DRC, Central
Pharmacy, and Southern Ohio Correctional
Facility to provide controlled substances to Drug
Administrators in contravention of the CSA and
DEA regulations.
C. DRC’s execution protocols and the Ohio
execution statute are preempted by the federal
CSA.
II. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the
FDCA) of those drugs contravene the FDCA because
those drugs used in an execution are unapproved drugs
and/or misbranded drugs and/or constitute unapproved
Investigational New Drugs.

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A. Thiopental sodium can never be used as an
execution drug in compliance with the FDCA.
B. Drugs that are considered Schedule I drugs
can never be used as execution drugs in
compliance with FDCA and/or the CSA.
C. No drug can ever be used to carry out a lethalinjection human execution because no drug has
ever been approved by FDA for the specific
purpose of causing death from lethal injection
during a human execution or for the purpose of
causing a quick and painless death in a human
execution.
D. DRC’s use of unapproved new drugs in a
lethal-injection execution contravenes federal
law because it is not subject to an Investigational
New Drug Application.
E. DRC’s execution protocols and the Ohio
execution statute are preempted by the federal
FDCA.
III. DRC’s actions in obtaining compounded controlled
substances for use as execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administrations (and any other terms of art under the CSA
or FDCA) of those drugs violate federal law.
A. DRC’s actions in obtaining compounded
execution drugs, its procurement, obtaining,
importing, purchasing, dispensing, distributing,
possessing and/or administration (and any other
terms of art under the CSA or FDCA) of those
drugs violates federal law because compounding
drugs for use in an execution violates 21 U.S.C.
§ 353a and/or § 353b.
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B. DRC’s actions in obtaining compounded
execution drugs, its procuring, obtaining,
importing, purchasing, dispensing, distributing,
possessing and/or administering (and any other
terms of art under the CSA or FDCA) of
compounded controlled substances violate
various other provisions of the federal drug laws.
C. DRC’s execution protocols and the Ohio
execution statute are preempted by federal law.
(ECF No. 70-1.)

Differences from the pending § 1983 action

Sheppard is a plaintiff in In re Ohio Lethal Injection Protocol Litig., Case No. 2:11-cv1016 (GLF/MRM), an action under 42 U.S.C. § 1983 and other federal statutes seeking to enjoin
his execution by lethal injection under Ohio law. In the September 16 Order, the Magistrate
Judge ordered him to differentiate his proposed newclaims in this case from those made in the §
1983 case.
One critical distinction, Sheppard says, is that his proposed amended petition does not
concede an alternative constitutional method of execution as required by Glossip v. Gross, 576
U.S. ___, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015), for § 1983 method-of-execution claims
(Motion, ECF No. 70, PageID 1039).

He asserts a second critical distinction is in the relief

available: a declaration that the death sentence is invalid in habeas as opposed to something else
– unidentified – in § 1983 proceedings. Id. at 1039. The most important distinction, Sheppard

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claims, “is that a grant of relief under § 1983 would not necessarily preclude Sheppard’s
execution,” whereas a victory in habeas would. Id. at PageID 1040-43.
Sheppard emphasizes the difference between obtaining injunctive relief against “applying
the current execution protocol to Sheppard” and “injunctive relief in habeas [that] would . . .
preclude the state from using other drugs and from obtaining any execution drugs by unlawful
means . . .” Id. at PageID 1044. Likewise, he says, injunctive relief against using the current
drugs because doing so would constitute “unlawful experimentation on him as a non-consenting,
unwilling participant in a human experimentation,” is distinct from “injunctive relief” on the
same claim in habeas which “would also bar the State from attempting any lethal-injection
execution of him that would constitute” such an experiment. Id.

Why the Petition is not second-or-successive

As noted above, this is Sheppard’s second-in-time habeas petition directed to the same
state court judgment. If this Court finds it to be a second-or-successive petition, it will lack
jurisdiction to consider the merits and must transfer the case to the Sixth Circuit. Moreland v.
Robinson, ___ F.3d ___, 2016 U.S. App. LEXIS 2339 (6th Cir. 2016), citing In re Sims, 111 F.3d
45 (6th Cir. 1997).
Sheppard argues two lines of analysis, depending on whether Sheppard’s lethal-injection
validity claims are already ripe or will not become ripe until sometime in the future.

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Already Ripe

Sheppard asserts that under the law of the case doctrine as it applies here, the Court has
already held the original Petition in this case is not second-or-successive (Motion, ECF No. 70,
PageID 1046, citing Sheppard v. Robinson, 2013 U.S. Dist. LEXIS 5565 (S.D. Ohio 2013)(Frost,
J.) Sheppard avers that his challenges to his death sentence in the Proposed Second Amended
and Supplemental Petition are not per se challenges to lethal injection execution. Rather, he
says, he claims “Ohio cannot constitutionally carry out a lethal injection execution on Sheppard
due to his unique, individual characteristics and Ohio’s inability to adopt or implement any
constitutionally sufficient execution protocol.” Id. at PageID 1049 (emphasis added). Sheppard
asserts it would be “unjust in the extreme and unfairly allow Sheppard’s lethal-injection
invalidity claims to escape review entirely” if the Court changed positions and now found his
Petition to be second-or-successive. Id. at PageID 1050.

Not Yet Ripe

Alternatively, Sheppard asserts his claims are not yet ripe because his execution is not
imminent and “his health conditions and Ohio’s execution protocol remain subject to variance
over time.” Id. at PageID 1051.

The Warden’s Opposition

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In opposing the Motion to Amend, the Warden stands on prior argument made in this and
other capital habeas corpus cases about the requirement to bring method-of-execution claims in a
§ 1983 action (Opposition, ECF No. 72). The Warden emphasizes “[n]othing in his Proposed
Second Amended Petition is an attack upon Sheppard’s guilt at trial or the imposition of a
sentence. All of his claims are directed at how that sentence will be carried out.” Id. at PageID
1149. Reminding the Court of the requirement in Glossip to plead an alternative method of
execution, the Warden argues that the mere omission of an alternative does not convert a
method-of-execution claim into a proper habeas claim. Id. at PageID1150.

Sheppard’s Reply

Sheppard argues first that this Court has already implicitly “rejected the Warden’s
overbroad reading of Glossip. . . .” (Reply, ECF No. 74, PageID 1159, 1161-62.) He then claims
the Warden’s position would preclude habeas actions which are intensely fact dependent,
including Brady or Ford claims. Id. at PageID 1162-65.
Sheppard then criticizes the Warden’s citation of Malloy v. South Carolina, 237 U.S. 180
(1915), in which the Supreme Court held that a post-conviction legislative change from hanging
to electrocution as a method of execution did not violate the Ex Post Facto Clause. Id. at
PageID 1166-71.
Sheppard asserts Glossip is limited to Eighth Amendment issues, whereas his Proposed
Second Amended Petition purports to raise claims under the Due Process, Privileges or
Immunities, and Equal Protection Clauses. Id.

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at PageID 1172.

He asserts that § 1983

challenges and habeas challenges “can be legally distinct – and properly characterized – based
solely on the remedy sought, even if there is a significant overlap in the factual allegations or the
constitutional theories to demonstrate a violation of a particular constitutional amendment or
federal law or treaty.” Id. at PageID 1176 (emphasis added).
Sheppard also distinguishes § 1983 and habeas challenges in terms of the relevant
evidence. He notes Judge Frost has held evidence “related to matters under previous execution
protocols is not relevant to demonstrate constitutional violations under a current protocol.” Id.,
citing In re Ohio Execution Protocol Litig. (Wiles), 868 F. Supp. 2d 625 (S.D. Ohio 2012). In
habeas, Sheppard argues, that relevancy conclusion is “inverted,” because
Sheppard asserts that Ohio can never adhere to the law in its efforts
to execute him via lethal-injection, regardless of protocol, and thus
historical evidence of protocol deviations under previous protocols
or other violations of law in the course of carrying out an execution
is just as important as evidence of deviations from the current
protocol or violations of the current law.

Id. at PageID 1177. In fact, it is not just past Ohio experience that is relevant. Sheppard asserts:
In habeas, the relevant evidence encompasses all available
evidence of how state officials – in Ohio and other states[3] – have
carried out past execution protocols under the law and what
happened, as well as any available evidence of how state officials
will administer a lethal-injection protocol between now and any
attempt to execute Raglin[4] [sic].

3

One wonders why federal lethal-injection executions, e.g., of Timothy McVeigh, are not relevant. Or perhaps
“botched” prior executions by other methods. See Louisiana, ex rel. Francis, v. Resweber, 329 U.S. 459 (1947).
4
Thus in the original. Presumably “Sheppard” was intended. Sheppard shares counsel with another death row
inmate, Walter Raglin.

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Id.

at PageID 1178.

Sheppard summarizes his position as being “Sheppard’s state-court

sentencing judgment is invalid for impossibility.” Id. at PageID 1181.
Sheppard argues that wrongly decided but binding Sixth Circuit precedent requires him to
proceed simultaneously in habeas and § 1983. Id. at 1185-88, citing Cooey v. Strickland, 479
F.3d 412 (6th Cir. 2007)(purportedly holding the § 1983 statute of limitations begins to run when
a conviction becomes final on direct appeal or when Ohio adopts a new lethal injection protocol).
Despite claiming the Warden has not opposed his not-second-or-successive arguments,
Sheppard finds it necessary to write five pages on this subject. Id. at PageID 1188-93. He
claims “new factual predicates” have arisen since Sheppard filed his first Petition on June 20,
2000, like the factual predicates found sufficient to avoid second-or-successive characterization
in Panetti and Martinez-Villareal, supra. He hypothesizes a situation in which the needles
necessary for lethal injection become unobtainable by lawful means anywhere in the world. Id.
at PageID 1189. As in the hypothetical, Sheppard points to facts which have arisen since his first
habeas case which allegedly warrant habeas relief, including (1) Ohio’s change of drugs, (2)
executions in Ohio and elsewhere showing “Ohio cannot consistently carry out a lethal-injection
execution in strict accordance with the execution protocols and other sources of law,” (3)
Sheppard’s individual characteristics, (4) Ohio’s inability to legally obtain execution drugs, (4)
new advances in medical research, and (5) evidence from previous executions. Id. at PageID
1190-93.
Sheppard rejects the Warden’s reliance on Magwood v. Patterson, 561 U.S. 320 (2010),
and King v. Morgan, 807 F.3d 154 (6th Cir. 2015), which held that when a state court defendant

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becomes subject to a new state court judgment, he can bring a new habeas case without facing
the second-or-successive bar. Sheppard asserts his Proposed Petition
attack[s] a state-court judgment that is necessarily different than
[sic] the judgment at issue in Sheppard’s initial habeas petition.
Sheppard’s sentencing judgment was entered on May 30, 1995. . . .
At that time, a death sentence under Ohio law 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.
Id. at PageID 1194. This, he asserts, amounts at best to a constructive amendment of the
judgment by the General Assembly. Id. at 1195.

ANALYSIS

Motions to amend habeas petitions under 28 U.S.C. § 2254 are evaluated by the same
standards applied to civil complaints. 28 U.S.C. § 2242. The general standard for considering a
motion to amend under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court
in Foman v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc. -- the leave sought should,
as the rules require, be "freely given."

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371 U.S. at 182. In considering whether to grant motions to amend under Rule 15, a court
should consider whether the amendment would be futile, i.e., if it could withstand a motion to
dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir.
1992); Martin v. Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v.
Centran Corp., 747 F.2d 1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville,
880 F.2d 887 (6th Cir. 1989). Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th
Cir. 1983); Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir.
1980). Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990). In Brooks v. Celeste, 39 F.3d 125 (6th Cir. 1994), the court
repeated and explicated the Foman factors, noting that “Delay by itself is not a sufficient reason
to deny a motion to amend. Notice and substantial prejudice to the opposing party are critical
factors in determining whether an amendment should be granted.” Id. at 130, quoting Head v.
Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir. 1989).
In the September 16 Order denying the prior motion to amend, the Magistrate Judge
relied on his decision denying a similar motion by the same counsel in Raglin v. Mitchell, 2015
U.S. Dist. LEXIS 125768 (S.D. Ohio, Sept. 15, 2015). In Raglin, the Magistrate Judge noted
that in Glossip the Supreme Court interpreted Hill v. McDonough, 547 U.S. 573 (2006), as
follows:
In Hill, the issue was whether a challenge to a method of execution
must be brought by means of an application for a writ of habeas
corpus or a civil action under §1983. Id., at 576, 126 S. Ct. 2096,
165 L. Ed. 2d 44. We held that a method-of-execution claim must
be brought under §1983 because such a claim does not attack the
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validity of the prisoner's conviction or death sentence. Id., at 579580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
Glossip, 135 S. Ct. at 2738. In the analysis in Raglin incorporated in the prior denial of
amendment, the Magistrate Judge noted this Court’s prior reliance on Adams v. Bradshaw, 644
F.3d 481 (6th Cir. 2011), to exercise jurisdiction over method-of-execution claims in habeas
corpus:
In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), the circuit
court was faced with Ohio's claim, relying on Hill, that the district
court lacked jurisdiction in habeas corpus over a lethal injection
claim. The court held:
The Warden's contention that Hill "holds that a challenge
to the particular means by which a lethal injection is to be
carried out is non-cognizable in habeas" is too broad.
Nowhere in Hill or Nelson does the Supreme Court state
that a method-of-execution challenge is not cognizable in
habeas or that a federal court "lacks jurisdiction" to
adjudicate such a claim in a habeas action. Whereas it is
true that certain claims that can be raised in a federal
habeas petition cannot be raised in a § 1983 action, see
Preiser, 411 U.S. at 500, it does not necessarily follow
that any claim that can be raised in a § 1983 action cannot
be raised in a habeas petition, see Terrell v. United States,
564 F.3d 442, 446 n.8 (6th Cir. 2009). Moreover, Hill can
be distinguished from this case on the basis that Adams
has not conceded the existence of an acceptable
alternative procedure. See 547 U.S. at 580. Thus, Adams's
lethal-injection claim, if successful, could render his death
sentence effectively invalid. Further, Nelson's statement
that "method-of-execution challenges[] fall at the margins
of habeas," 541 U.S. at 646, strongly suggests that claims
such as Adams's can be brought in habeas.

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Id. at 483 (parallel citations omitted). Relying on that language
from Adams, this Court has consistently held it has jurisdiction in
habeas over method-of-execution claims. Gapen v. Bobby, 2012
U.S. Dist. LEXIS 121036, *3-8 (S.D. Ohio 2012); Waddy v. Coyle,
2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio 2012); Sheppard v.
Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012);
Bethel v. Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio
2012); Sheppard v. Warden, 2013 U.S. Dist. LEXIS 5560, *21-22
(S.D. Ohio 2013); Turner v. Bobby, 2013 U.S. Dist. LEXIS 39470,
*3-4 (S.D. Ohio 2013).
Raglin, supra at *11-12. The Magistrate Judge concluded “This Court's former application of
Adams to allow death row inmates such as Raglin to proceed simultaneously in § 1983 and
habeas cannot stand in light of Glossip.” Id. at *13.

Sheppard’s Proposed New Habeas Claims Are Solely Method-of-Execution Claims
Cognizable Only Under § 1983

All four of Sheppard’s proposed new claims are directed to Ohio’s method of execution
by lethal injection, to wit, by claiming that method violates the Eighth Amendment (First Ground
for Relief), the Fourteenth Amendment Due Process, Privileges or Immunities, and Equal
Protection Clauses (Second and Third Grounds for Relief), or federal statutes asserted to preempt
Ohio law (Fourth Ground for Relief).
Sheppard does not deny that these are method-of-execution claims. Instead, he says, the
Supreme Court in Glossip does not really mean that all method-of-execution claims must be
brought in a § 1983 action. These claims, he says are different because (1) he does not propose
to plead in this case a constitutional alternative method of execution, (2) he seeks an
unconditional writ of habeas corpus here as opposed to a permanent injunction in the § 1983
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case, and (3) relief here would preclude his execution altogether whereas relief in the § 1983
case would only preclude execution by the method enjoined. (Motion, ECF No. 70, PageID
1039, 1040-43).
Nowhere in the sixty-five pages they have written on this Motion do Sheppard’s counsel
actually compare the substance of the claims he has made in the Protocol Litigation and those he
wishes to make here. Instead, the comparison is all in terms of remedy. Sheppard’s proposed
new habeas claims are set forth above. In the Protocol Litigation, Sheppard pleads the following
claims:
Twentieth Cause of Action: Eighth Amendment Violation Based
On Substantial Risk Of Serious Harm In The Form Of Severe,
Needless Physical Pain And Suffering Due To The Identity Of The
Drugs In The Execution Protocol.
Twenty-First Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of
Severe, Needless Physical Pain And Suffering Due To The Source
Of The Drugs In The Execution Protocol.
Twenty-Second Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of
Severe Mental Or Psychological Pain, Suffering And Torturous
Agony Due To The Identity Of The Drugs In The Execution
Protocol.
Twenty-Third Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of
Severe Mental Or Psychological Pain, Suffering And Torturous
Agony Due To The Source Of The Drugs In The Execution
Protocol.

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Twenty-Fourth Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of A
Lingering Death.
Twenty-Fifth Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of
Being The Subject Of An Undignified, Spectacle Execution Or
Attempted Execution.
Twenty-Sixth Cause of Action: Eighth Amendment Violation
Based on Substantial Risk of Serious Harm in the Form of Being
Subjected to an Unwanted, Non-Consensual Human
Experimentation of an Execution.
Twenty-Seventh Cause of Action: Eighth Amendment Violation
Based on Substantial Risk of Serious Harm in the Form of
Maladministration or Arbitrary Administration of the Execution
Protocol.
Twenty-Eighth Cause of Action: Eighth Amendment Violation
Based On Substantial Risk Of Serious Harm In The Form Of
Being Subjected To An Execution Protocol That Is Facially
Unconstitutional Because It Does Not Preclude The Execution Of
An Inmate That [sic] Is Categorically Exempt From Execution.
Twenty-Ninth Cause of Action: Eighth Amendment Violation
Based on Deliberate Indifference or Reckless Disregard of
Substantial Risk of Harm to Plaintiff.
Thirtieth Cause of Action: Fourteenth Amendment Due Process
Violation For Failure To Comply With Federal Investigational
New Drug Application Regulations With Respect To The Method
And Choice Of Drug To Be Used In Plaintiff’s Execution.
Thirty-First Cause of Action: Equal Protection Violations
Related To Defendants’ Failures To Comply With The IND
Application Laws.

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Thirty-Second Cause of Action: First Amendment Free Exercise
Clause and RLUIPA Violation.
Thirty-Third Cause of Action: Eighth Amendment Violations
Based On Substantial Risk Of Serious Harm In The Form Of
Severe, Needless Physical Or Mental/Psychological Pain And
Suffering Due To Plaintiff’s Unique, Individual Characteristics
And Application Of The Execution Protocol.
Thirty-Fourth Cause of Action: Equal Protection Violations
Related To Plaintiff’s Unique, Individual Characteristics And
Application Of The Law, Including DRC Defendants’ Execution
Protocol and Ohio’s Execution Statute.
(Case No. 2:11-cv-1016, ECF No. 603, PageID 10854-55.)
The Twentieth through Twenty-Ninth and Thirty-Third Causes of Action are all pled
under the Eighth Amendment. The Thirtieth Cause of Action pleads a due process violation of
Sheppard’s right to have the State of Ohio comply with federal drug regulation statutes and the
Thirty-First an equal protection claim based on the same failure. The Thirty-Second Cause of
Action purports to plead a claim under the Free Exercise Clause and RLUIPA. Lastly, the
Thirty-Fourth Cause of Action purports to plead an equal protection claim related to Sheppard’s
“unique, individual characteristics.” Sheppard’s counsel have not attempted to show which of
these claims have some overlap with his habeas grounds and which do not, although he has made
no habeas claim that his conviction is unconstitutional under the Free Exercise Clause. Except
for the Twenty-Eighth Cause of Action, his Eighth Amendment § 1983 claims appear to overlap
completely with his Eighth Amendment habeas claims, except they are disaggregated.
Sheppard’s argument about how differences in forms of relief permit both cases to
proceed simultaneously is not persuasive. If he can prove in the Protocol Litigation that every
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possible method of lethal injection execution is unconstitutional (i.e., what he believes he can
prove in this habeas case), then the Court will grant him permanent injunctive relief against
whichever protocol happens to be in place at the time his execution is scheduled and would
renew the injunction for each new method which was thereafter shown to be unconstitutional.
Conversely, if he can obtain an unconditional writ of habeas corpus, that is of course a better
result for him, but it is very difficult for the Court to understand how post-judgment legal and
factual developments can make his conviction and sentence retroactively invalid.
It is of course true that there are post-judgment legal developments which have made
other death sentences invalid, e.g., execution of the intellectually disabled (Atkins v. Virginia,
536 U.S. 304 (2002)) or of those who committed murder before the age of eighteen (Roper v.
Simmons, 543 U.S. 551 (2005)). There are also post-judgment factual developments which
preclude execution because of categorical prohibitions on executing certain categories of
persons, e.g., Panetti and Martinez-Villareal, supra. Finally, post-judgment discovery of facts
that existed pre-judgment can also invalidate a conviction, e.g., when Brady material is
discovered at any time post-trial.
These kinds of facts are different from the kinds of facts on which Sheppard relies. The
fact that drugs previously available and found constitutional by the Supreme Court are no longer
available or not presently available does not make a conviction in contemplation of the
availability of the previously-used drugs retroactively unconstitutional. It may make the use of
substitute drugs unconstitutional, but that is a violation wholly curable by a § 1983 action
attacking that method of execution.

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A court sitting in habeas corpus is to evaluate whether a petitioner’s custody or death
sentence is infected with unconstitutionality. In conducting that evaluation, the court is usually
limited to the state court record.

Cullen v. Pinholster, 563 U.S. 170 (2011).

interpreted the language of 28 U.S.C. § 2254(d)(1) as “backward-looking.”

Pinholster
Id.

at 182.

Sheppard in contrast appears to intend to create a new record in this Court to ground his
constitutional claims, a move precluded by Pinholster but perfectly within the ambit of § 1983
litigation.
It is true that this Court has previously allowed claims to proceed simultaneously in §
1983 and habeas based on an expansive reading of Adams, supra. But Judge Frost of this Court,
the District Judge to whom this case is assigned, had held “Glossip now undeniably upends that
practice.” Henderson v. Warden, 2015 U.S. Dist. LEXIS 134120 (S.D. Ohio Sept. 30, 2015)5.
Henderson is correct in reading Glossip as unequivocally requiring method-of-execution claims
to be brought in a § 1983 action. Stare decisis argues for the same result here. Because all
Sheppard’s proposed new claims are method-of-execution claims, they are not cognizable in
habeas corpus.
Sheppard’s argument that he must proceed simultaneously in § 1983 and habeas based on
the statute of limitations holding in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), is also
unpersuasive. If, as Glossip holds, method-of-execution claims must be brought in a § 1983
action, they are not cognizable in habeas, regardless of when the statute of limitations runs.

5

Despite its evident relevance, Henderson is not cited in Sheppard’s papers. Counsel are reminded of their
obligation to disclose such authority imposed by Ohio Rule of Professional Conduct 3.3(a)(2).

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Because the Proposed Second Amended and Supplemental Petition raises only methodof-execution claims not cognizable in habeas corpus, the amendment would be futile and the
Motion to Amend is DENIED.
The Court does not consider whether the Motion might also be deniable as evincing a
dilatory motive.
The Court also does not consider, because the parties have not briefed the question and it
is not necessary to decide at this time, whether Sheppard’s proposed new claims state a claim
upon which relief could be granted with sufficient specificity to satisfy the habeas pleading
standards or whether the alleged constitutional violations can be demonstrated from clearly
established Supreme Court precedent.

This is a Second-or-Successive Habeas Petition That Must be Transferred to the Sixth
Circuit

Having denied the requested amendment, this Court is faced again with the question
whether original Petition is a second-or-successive application for habeas corpus relief. The
Magistrate Judge previously concluded the habeas claims initially pled in this case were not
second-or-successive because Sheppard had newly-arising habeas claims when Ohio adopted a
new lethal injection protocol in September 2011. That conclusion was, of course, based on the
now-rejected overbroad reading of Adams v. Bradshaw. Because Glossip “upends” that reading,
it also undermines the prior conclusion on the second-or-successive question.
On its face, the Petition is second-or-successive. It is second-in-time, as noted in the
Procedural History above, and it purports to make claims for relief sounding in habeas corpus.

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Under those circumstances, this Court is obliged to transfer the case to the Sixth Circuit under 28
U.S.C. § 2244(b).
Sheppard’s law-of-the-case argument to the contrary is not persuasive.

Under the

doctrine of law of the case, findings made at one point in the litigation become the law of the
case for subsequent stages of that same litigation. United States v. Moored, 38 F 3d 1419, 1421
(6th Cir. 1994), citing United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993).
While the “law of the case” doctrine is not an inexorable
command, a decision of a legal issue establishes the “law of the
case” and must be followed in all subsequent proceedings in the
same case in the trial court or on a later appeal in the appellate
court, unless the evidence on a subsequent trial was substantially
different, controlling authority has since made a contrary decision
of the law applicable to such issues, or the decision was clearly
erroneous and would work a manifest injustice.
White v. Murtha, 377 F.2d 428 (5th Cir. 1967), quoted approvingly in Association of Frigidaire
Model Makers v. General Motors Corp., 51 F.3d 271, (6th Cir. 1995). But, “[a]t the trial level,
the doctrine of the law of the case is little more than a management practice to permit logical
progression toward judgment. Prejudgment orders remain interlocutory and can be reconsidered
at any time.” J. Moore, Federal Practice 2d, ¶0.404 (1993 ). The purpose of the doctrine is
twofold: (1) to prevent the continued litigation of settled issues; and (2) to assure compliance by
inferior courts with the decisions of superior courts. United States v. Todd, 920 F.2d 399 (6th
Cir. 1990), citing Moore's, supra. Here the law of the case relied on an expansive reading of
Adams which is no longer tenable in light of higher controlling authority, Glossip.

No

substantive unfairness is worked on Sheppard who can, as outlined above, obtain both
substantive review and adequate relief on his claims in the Protocol Litigation. Moreover, this
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Court has no subject matter jurisdiction over a second-or-successive habeas application. Burton
v. Stewart, 549 U.S. 147 (2007). Subject matter jurisdiction cannot be created by a mistake of
law embedded in the law of the case.
The ruling above denying amendment implies that the original Petition in this case does
not state a claim upon which habeas relief can be granted because method-of-execution claims
must be brought in a § 1983 action. But we have been recently reminded by the Sixth Circuit
that our duty is to transfer the case to that court for any such decision. Moreland v. Robinson,
___ F.3d ___, 2016 U.S. App. LEXIS 2339 (6th Cir. 2016), citing In re Sims, 111 F.3d 45 (6th
Cir. 1997).
The question of transfer under 28 U.S.C. § 2244(b) is a non-dispositive pretrial matter
which is within the initial decisional authority of a Magistrate Judge to whom the case has been
referred.6 It is accordingly ORDERED that this case be transferred to the Sixth Circuit for a
determination of whether it can proceed. The effective date of this transfer is STAYED until
review of this Order by Judge Frost.

February 16, 2016.
s/ Michael R. Merz
United States Magistrate Judge

6

Although the Capital Habeas Unit of the Federal Defender’s Office for Southern Ohio is known to contest this
position, they have conceded in another case that there is no Sixth Circuit authority directly in point. The Sixth
Circuit has regularly accepted transfers under § 2244(b) from this Magistrate Judge without questioning the
authority.

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