Tibbetts v. Warden Chillicothe Correctional Institution

Filing 20

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 11 Report and Recommendations, and 17 Supplemental Report and Recommendations. Warden's 7 Motion to Dismiss is DENIED and the alternative motion to transfer case to the Sixth Circuit 7 is DENIED. Signed by Judge Susan J. Dlott on 3/5/15. (wam1)

I~ THE UNITED STATES DISTRICT COURT
FbR THE SOUTHERN DISTRICT OF OHIO
I WESTERN DIVISION AT CINCINNATI
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RAYMOND TIBB~TTS,

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Case No. 1:14-cv-602

Petitioner,

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

- vsWARDEN, ChillicPthe
Correctional Instiltution,

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Respondent.

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ORDER AqOPTING REPORT AND RECOMMENDATIONS AND
SUPPL~MENTAL REPORT AND RECOMMENDATIONS

This capita~ habeas corpus case is before the Court on Respondent's Objections (Doc.
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No. 13) to the M~gistrate Judge's Report and Recommendations (Doc. No. 11) and to the
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Supplemental Repqrt and Recommendations (Doc. No. 17).
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This is

Ra~ond
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Tibbetts second-in-time habeas corpus petition seeking relief from his

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conviction for aggtavated murder and sentence of death. This Court denied relief on the first

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petition and that dt:inial was affirmed. Tibbetts v. Bradshaw, 2006 U.S. Dist. LEXIS 13881 (S.D.
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Ohio Mar. 29, 20~6), aff'd., 633 F.3d 436 (6th Cir. 2011), cert. denied sub nom. Tibbetts v.
Bobby, 132 S.Ct. 2~8 (2011). The Warden seeks dismissal of the instant Petition on the ground
that it requires

cert~fication from the Sixth Circuit under 28 U.S.C. § 2244 before it can proceed
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because it is a secopd-or-successive petition within the meaning of that statute (Motion, Doc. No.
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7).

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Pursuant tol Fed. R. Civ. P. 72(b)(3), the Court has reviewed de novo the Magistrate
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finds that they are inot erroneous. Every judge of this Court to consider the question has found
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that a habeas corp~s petition challenging a "new" lethal injection protocol for carrying out the
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sentence of death i~ not a second or successive petition and may therefore proceed in this Court
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without advance c~ification under 28 U.S.C. § 2244. See Response to Motion to Dismiss, Doc.
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No.8, PageiD 110~ citing Raglin v. Mitchell, No. 1:00-cv-767, 2013 U.S. Dist. LEXIS 141199,
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at 94 (S.D. Ohio s~. 29, 2013)(Barrett, J.); Smith

V.

Pineda, No. 1:12-cv-196, 2012

u.s. Dist.

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LEXIS 121019, ati13-14 (S.D. Ohio Aug. 27, 2012) (Merz, M.J.), supplemented by 2012 U.S.
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Dist. LEXIS 1540~7, at 2-4 (S.D. Ohio Oct. 26, 2012), then adopted by 2012 U.S. Dist. LEXIS
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171759, at 2 (S.D.! Ohio Dec. 4, 2012) (Rose, J.); Chinn v. Bradshaw, No. 3:02-cv-512, 2012
U.S. Dist. LEXIS ~3083, at 8-9 (S.D. Ohio July 5, 2012) (Sargus, J.) Furthermore, the judges of
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this Court have co4tinued to hold that Ohio's lethal injection protocol may be attacked in habeas
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corpus, following }tdams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), and concluding Scott v.
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Houk, 760 F.3d 49t (6th Cir. 2014), does not overruled Adams.
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Accordinglf, the Report and Recommendations and the Supplemental Report and
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Recommendations! are ADOPTED and the Warden's Motion to Dismiss (Doc. No. 7) is

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DENIED. The W~den's alternative motion to transfer this case to the Sixth Circuit (Doc. No.7)
is DENIED.
MarchS, 2015.

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