Turner v. Warden

Filing 204

DECISION AND ENTRY OVERRULING RESPONDENT'S OBJECTIONS TO THE DECISION AND ORDER OF THE MAGISTRATE JUDGE - 1. The Supplemental Opinion and Recommendations (Doc. 175 ) is ADOPTED; 2. Respondents objections (Docs. 167 , 183 ) are OVERRULED; and 3. Petitioner shall file an Amended Petition forthwith. Signed by Judge Timothy S. Black on 3/21/2013. (mr1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MICHAEL TURNER,
Petitioner,
vs.
DAVID BOBBY, WARDEN,
Respondent.

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Case No. 2:07-cv-595
Judge Timothy S. Black
Magistrate Judge Michael R. Merz

DECISION AND ENTRY OVERRULING RESPONDENT’S OBJECTIONS TO
THE DECISION AND ORDER OF THE MAGISTRATE JUDGE
This capital habeas corpus case is before the Court following the Decision and
Order of Magistrate Judge Merz granting Petitioner leave to file an amended petition
adding two additional grounds for relief: (1) that Petitioner’s “execution will violate the
Eighth Amendment because Ohio’s lethal injection protocol will result in cruel and
unusual punishment[;]” and (2) that Petitioner’s “execution will violate the Fourteenth
Amendment because Ohio’s lethal injection protocol will deprive him of equal protection
of the law.” (Doc. 165).
Respondent objected to the Decision and Order. (Doc. 167). Subsequently, this
Court issued a recommittal order, returning the case to the Magistrate Judge with
instructions to file a supplemental opinion analyzing the objections and making
recommendations based on that analysis. (Doc. 171). On July 11, 2012, Magistrate
Judge Merz issued a Supplemental Opinion and Recommendations that the objections be
overruled. (Doc. 175). Thereafter, the Respondent filed objections to the Supplemental

Opinion (Doc. 183), and the Petitioner filed a reply (Doc. 185). These issues are now
ripe for the Court’s consideration.
The Court’s review of the Magistrate Judge’s Decision and Order is governed by
Fed. R. Civ. P. 72(a), which provides that, following the issuance of an order by a
Magistrate Judge on a nondispositive issue, “[a] party may serve and file objections to the
order within 14 days[,]” and thereafter, “[t]he district judge … must consider timely
objections and modify or set aside any part of the order that is clearly erroneous or is
contrary to law.” The Court reviews the Magistrate Judge’s factual findings under the
“clearly erroneous” standard and the Magistrate Judge’s legal conclusions “under the
more lenient ‘contrary to law’ standard.” Itskin v. Gibson, No. 2:10cv689, 2012 U.S.
Dist. LEXIS 32169, at *1 (S.D. Ohio Mar. 9, 2012) (citing Gandee v. Glaser, 785
F.Supp. 684 (S.D. Ohio 1992), aff’d 19 F.3d 1432 (6th Cir. 1994) (table)). Under both
standards, however, the Court must “provide considerable deference to the
determinations made by the magistrate judge.” Moran v. Svete, C-3-05-072, 2012 U.S.
Dist. LEXIS 47867, at *1 (S.D. Ohio Apr. 4, 2012).
Here, Respondent contends that the Decision and Order of the Magistrate Judge is
contrary to law for two reasons: (1) Petitioner’s claims challenging Ohio’s lethal injection
protocol are not cognizable in habeas review; and (2) Petitioner’s claims are barred by the
statute of limitations, 28 U.S.C. § 2244(d)(1)(D). In reviewing a nondispositive order
pursuant to the “contrary to law” standard, “[t]his Court’s review … is ‘plenary.’”
Gandee, 785 F.Supp. at 686. This Court “may overturn any conclusions of law which

contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or
case precedent.” Id.
With regard to Respondent’s contention that Petitioner’s proposed amendments
are not cognizable in habeas, the Magistrate Judge appropriately cited binding Sixth
Circuit precedent holding otherwise, i.e., that challenges to Ohio’s legal injection
procedures are cognizable in a habeas petition. Adams v. Bradshaw, 644 F.3d 481, 48283 (6th Cir. 2011). Concerning Respondent’s contention that Petitioner’s amendments
are barred by the statute of limitations, the Court is unable to conclude that the Magistrate
Judge’s conclusions are clearly erroneous or contrary to law. Chinn v. Bradshaw, No.
3:02cv512, 2012 U.S. Dist. LEXIS 93083, at *3-4 (S.D. Ohio Jul. 5, 2012).
Accordingly:
1.

The Supplemental Opinion and Recommendations (Doc. 175) is
ADOPTED;

2.

Respondent’s objections (Docs. 167, 183) are OVERRULED; and

3.

Petitioner shall file an Amended Petition forthwith.

IT IS SO ORDERED.
Date:

3/21/2013

_s/ Timothy S. Black______________
Timothy S. Black
United States District Judge