O'Neal v. Warden Chillicothe Correctional Institution
Filing
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REPORT AND RECOMMENDATIONS re 1 and 11 Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Michael R. Merz on 9/11/2015. (srb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
JAMES DERRICK O’NEAL,
Petitioner,
:
- vs -
Case No. 1:12-cv-699
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss in
Light of Glossip v. Gross (ECF No. 11). O’Neal opposes the Motion (ECF No. 13) and the
Warden has filed a Reply (ECF No. 14).
Motions to dismiss involuntarily are "dispositive" within the meaning of 28 U.S.C. §
636(b)(1)(A) and Fed. R. Civ. P. 72, requiring a report of proposed findings and
recommendations for decision from an assigned Magistrate Judge.
In what he labeled as his Numerically Second Petition, O’Neal pleads the following
Grounds for Relief:
First Ground for Relief: James Derrick O’Neal’s execution will
violate the Eighth Amendment to the United States Constitution
because Ohio’s lethal injection policy, protocols and procedures
will result in cruel and unusual punishment.
(ECF No. 1, PageID 3.)
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Second Ground for Relief: James Derrick O’Neal’s execution
will violate the Fourteenth Amendment because Ohio’s lethal
injection policy, protocols and procedures will deprive him of
equal protection of the law.
Id. at PageID 8.
Relying on Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2738 (2015), the Warden argues
these claims are not cognizable in habeas corpus because they are method of execution claims
which must be brought in a civil rights action under 42 U.S.C. § 1983. In Glossip Oklahoma
death row inmates brought a § 1983 action seeking to enjoin the use of midazolam (specified at
500 mg.) as the first drug to be administered in a three-drug lethal injection protocol. As the
Supreme Court explains, Oklahoma had previously used the three-drug protocol (sodium
thiopental, a paralytic agent, and potassium chloride) found constitutional by a plurality of the
Court in Baze v. Rees, 553 U.S. 35 (2008). Because sodium thiopental and a substitute,
pentobarbital, have become unavailable, Oklahoma substituted midazolam. Glossip was brought
under 42 U.S.C. § 1983 and sought injunctive relief prohibiting the use of a 500 mg. dose of
midazolam in conjunction with the other two drugs. The Supreme Court affirmed the lower
courts' denial of a preliminary injunction on two bases:
For two independent reasons, we also affirm. First, the prisoners
failed to identify a known and available alternative method of
execution that entails a lesser risk of pain, a requirement of all
Eighth Amendment method-of-execution claims. See Baze v. Rees,
553 U. S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)
(plurality opinion). Second, the District Court did not commit clear
error when it found that the prisoners failed to establish that
Oklahoma's use of a massive dose of midazolam in its execution
protocol entails a substantial risk of severe pain.
135 S. Ct. at 2731.
In the course of reaching these conclusions, the Court made this interpretation of Hill v.
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McDonough, 547 U.S. 573 (2006):
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
validity of the prisoner's conviction or death sentence. Id., at 579580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
Id. at 2738.
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.
Id. at 483. 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
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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).
In the Motion to Dismiss, the Warden argues he has won in Glossip what he lost in
Adams. First she notes the ways in which the Numerically Second Petition attacks the “current”1
lethal injection protocol (Motion, ECF No. 11, PageID 134-35). She concludes “to the extent
Adams stands for the expansive proposition that inmates can challenge the specifics of Ohio’s
method of execution or how it is administered in habeas corpus, then it contradicts Glossip and is
therefore overruled.” Id. at PageID 136. The Warden also relies on Scott v. Houk, 760 F.3d 497
(6th Cir. 2014), and Frazier v. Jenkins, 770 F.3d 485 (6th Cir. 2014), in both of which the circuit
court refused to remand habeas cases for development of lethal injection claims on the grounds
any needed development could take place in pending § 1983 cases which would adequately
protect death row inmates’ interests.
This Court has previously declined to read Scott and Frazier that broadly because they
did not purport to overrule Adams and indeed could not do so since it is a published circuit
opinion. See Tibbetts v. Warden, 2015 U.S. Dist. LEXIS 27066 (S.D. Ohio 2015); Raglin v.
Mitchell, 2014 U.S. Dist. LEXIS 155634 (S.D. Ohio 2014); Turner v. Hudson, 2014 U.S. Dist.
LEXIS 155270 (S.D. Ohio 2014). But this Court’s former application of Adams to allow death
row inmates such as O’Neal to proceed simultaneously in § 1983 and habeas cannot stand in
light of Glossip. This Court has already concluded it can no longer read Adams that expansively:
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O’Neal alleges “his First and Second Grounds for Relief arose for the first time on or about September 18, 2011,
and became newly ripe on or about that date.” September 18, 2011, is the date Ohio promulgated the lethal injection
policy that was in effect when the instant Petition was filed.
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Glossip at the very least renders that statement of the law inexact.
Under Glossip's reading of Hill, a method-of-execution claim must
be brought under § 1983 if, but only if, (1) success on the claim
would not invalidate the death sentence and (2) the prisoner can
"identify a known and available alternative method of execution
that entails a lesser risk of pain."
Landrum v. Robinson, 2015 U.S. Dist. LEXIS 116914, *7 (S.D. Ohio 2015).
Despite arguing that Glossip’s reading of Hill is mere dictum, O’Neal concedes that
Glossip requires death row inmates and this Court to be more precise in our use of language. As
other capital petitioners in this Court have done in recent weeks, he agrees the term “method-ofexecution claim” should be reserved for challenges made in § 1983 litigation to specific methods
or steps in carrying out an execution (Response, ECF No. 13). Such a claim must, as Glossip
has held, concede that the State can validly execute the person and it must identify a known and
available alternative method of execution that entails a lesser risk of pain.
In contrast O’Neal asserts a death row inmate may still bring habeas corpus claims
attacking lethal injection which do not concede that the State “can ever carry out a constitutional
execution [and] attack the validity of the petitioner’s death sentence.” Id. at PageID 148.
O’Neal correctly argues “the focus should be on the substance of the claim, rather than the name
previously ascribed to it.” Id.
O’Neal argues that Glossip did not overrule Hill and Nelson v. Campbell, 541 U.S. 637
(2004), and the Court agrees. At a time when habeas corpus jurisdiction was much more liberal,
before enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104132, 110 Stat. 1214)(the "AEDPA"), the Supreme Court held a district court could not grant
release from confinement in a § 1983 action because to do so would frustrate the habeas
exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). The AEDPA, of course,
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severely limited habeas jurisdiction, inter alia, by enacting a statute of limitations and the bar on
second or successive petitions.2 Nelson and Hill should be read as acknowledging emendations
on the Preiser rule for conditions of execution claims of death row inmates. Glossip is consistent
with those cases; it does not question the propriety of challenging a particular lethal injection
protocol in a § 1983 action so long as the challenge would not invalidate the death sentence and
the inmate proves an alternative. However, insofar as Adams reads Hill or this Court has read
Adams as permitting an inmate to bring the same lethal injection claim in both 1983 and habeas,
those readings cannot survive Glossip. O’Neal must limit his habeas claims to those which
would invalidate his death sentence.
O’Neal also asserts Glossip misstates the holding in Hill (Response, ECF No. 13, PageID
151). In Hill, Justice Kennedy, who wrote for a unanimous Court, did not explicitly write what
the Court was holding, although the syllabus reasonably reads the holding as being that Hill
might proceed in civil rights and was not obliged to bring his claim in habeas. But what counts
is not how this Court reads the holding, but how the Supreme Court reads its own precedent.
Nothing prevents the Supreme Court from reinterpreting its prior opinions to strengthen their
force.
In light of Glossip, O’Neal’s Grounds for Relief do not clearly enough distinguish
between method-of-execution civil rights claims which must be brought in § 19833 and lethalinjection-validity claims which must be brought in habeas. His reference to “newly-ripe” claims
refers at least implicitly to the lethal injection protocol promulgated September 18, 2011, which
2
The Supreme Court itself has erected barriers to habeas relief since Preiser. Wainwright v. Sykes, 433 U.S. 72, 97
S. Ct. 2497, 53 L. Ed. 2d 594 (1977), held a federal habeas petitioner who fails to comply with a State's rules of
procedure waives his right to federal habeas corpus review. Wainwright replaced the "deliberate bypass" standard of
Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963).
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O’Neal is a plaintiff in In re Ohio Execution Protocol Litigation, Case No. 2:11-cv-1016, pending before Judge
Frost.
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he cites explicitly in ¶ 13, noting that that policy “is a mandatory part of Ohio’s lethal injection
process.” Id. at ¶ 15. Of course, the 9/18/2011 protocol is no longer part of the process at all,
having been superseded many times, most recently on June 29, 2015, the date Glossip was
handed down. Paragraphs 17 and 18 specifically refer to the older protocol. In ¶ 23, O’ Neal
pleads that “the State of Ohio’s execution method is unconstitutional.” While he continues that
that makes his death sentence “necessarily invalid,” the reference is to a “method” which is no
longer in place. In ¶ 25 he refers to the “current lethal injection policy … as written and as
administered. . .” Paragraph 27 refers to the drugs employed, delivery mechanisms, personnel,
etc., all of which appear to sound in “method-of-execution” under § 1983. It is unnecessary to
catalogue all of the examples. As presently pled, O’Neal’s Grounds for Relief do no consistently
follow the clear division of § 1983 claims and habeas claims envisioned by Glossip.
Second or Successive
The Warden’s Motion raises a question in the Court’s mind which the parties have not
raised. This is O’Neal's second-in-time habeas petition attacking the same state court judgment.
This Court's judgment on his first Petition in Case No. 1:02-cv-357 was affirmed on appeal to the
Sixth Circuit, O’Neal v. Bagley, 728 F.3d 552 (6th Cir. 2012), amended opinion at 743 F.3d
1010, cert denied 135 S. Ct. 69 (2014).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") amended 28 U.S.C. § 2244(b) to read in pertinent part as follows:
(b)
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
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(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.
(3)
(A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.
Recognizing this difficulty, O’Neal contended without argument in his Numerically
Second Petition that this case was not second or successive because it contained a claim that was
newly ripe (ECF No. 1, PageID 2, ¶¶ 2 and 3).
The Warden did not contest this assertion by way of a motion to transfer the case to the
Sixth Circuit, but argued in the Return of Writ that this was a second or successive application
(Return, ECF No. 6, PageID 34-36). O’Neal responded by claiming this was not a second or
successive habeas application (Reply, ECF No. 10, PageID 101-02), citing Sheppard v. Warden,
2013 U.S. Dist. LEXIS 5560 (S.D. Ohio 2013), and Smith v. Pineda, 2012 U.S. Dist. LEXIS
171759 (S.D. Ohio 2012).
A district court does not have jurisdiction over a second or successive petition without
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prior permission from the court of appeals. Burton v. Stewart, 549 U.S. 147 (2007). However,
the district court must itself decide the second or successive question in the first instance. In re:
Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012); In re: Kenneth W. Smith, 690
F.3d 809 (6th Cir. 2012). This Court held in Sheppard that habeas petitions raising method-ofexecution claims directed at Ohio's lethal injection protocol arise when Ohio adopts a new
protocol.
It is doubtful that rationale remains viable in light of Glossip, supra. The case draws a
distinction between constitutional claims which, if successful, will invalidate a state court death
sentence and constitutional claims which attack the method by which the execution will be
carried out. It allows the first class of claims to be brought in habeas, but requires the latter class
to be brought under 42 U.S.C. § 1983. Given that deepening of the distinction between habeas
and 1983, it is difficult to see how a death row petitioner has a newly-arising habeas claim
whenever the lethal injection protocol is amended and therefore not second or successive.
Because this question is jurisdictional under Burton, the Court is obliged to raise it sua
sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van
Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l, Ltd.,
556 F.3d 459, 465 (6th Cir. 2009); Clark v. United States, 764 F.3d 653 (6th Cir. 2014).
Conclusion
It is therefore respectfully recommended that the Numerically Second Petition be
dismissed without prejudice for failure to plead a claim cognizable in habeas corpus with
sufficient clarity to distinguish it from the claims O’Neal has made in In re Ohio Lethal Injection
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Protocol Litig. O’Neal is granted leave to move to file an amended petition not later than
September 30, 2015.
Should O’Neal move to amend, he must restate his position on why this would not be a
second or successive petition. This Court has previously allowed new lethal injection habeas
petitions to avoid the second or successive bar on the basis that they were raising new claims
which could not previously have been pled, based on the adoption of new lethal injection
protocols by the State. But the Court questions whether that rationale can support a habeas claim
that any lethal injection execution would be unconstitutional since lethal injection has been an
available method of execution in Ohio and indeed the exclusive method since before Franklin
filed his initial Petition.
September 11, 2015.
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(d), this period is 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)(C), (D), (E), or (F). 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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