Turner v. Warden

Filing 258

DECISION AND ORDER - Petitioner's Motion for Leave to File a Fourth Amended Petition (ECF No. 253) is DENIED. Signed by Magistrate Judge Michael R. Merz on 1/19/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MICHAEL R. TURNER,
:
Petitioner,

Case No. 2:07-cv-595
:

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

-vsSTUART HUDSON, Warden,
:
Respondent.

DECISION AND ORDER

This capital habeas case is before the Court on Petitioner’s Motion for Leave to File a
Fourth Amended Petition (ECF No. 253). The Warden opposes the Motion (ECF No. 256) and
Turner has filed a Reply in support (ECF No. 257).
Motions to amend under Fed. R. Civ. P. 15 are non-dispositive within the meaning of 28
U.S.C. § 636 and are therefore within the initial decisional authority of Magistrate Judges.

Procedural History

On June 12, 2000, Jennifer Turner and Ronald Seggerman were stabbed to death.
Petitioner was indicted for those murders, waived trial by jury, and pleaded guilty to both counts
and all specifications in the Indictment. A three-judge panel accepted the guilty plea, conducted
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a mitigation hearing, concluded the aggravating circumstances outweighed the mitigation, and
sentenced Turner to be executed. After conclusion of state court proceedings, the United States
Supreme Court denied certiorari. Turner v. Ohio, 549 U.S. 1132 (2007). Turner initiated these
habeas corpus proceedings January 23, 2007. Following discovery and an evidentiary hearing,
the Magistrate Judge recommended relief be denied on April 22, 2011 (Report and
Recommendations, ECF No. 135).
In March 2012 Turner moved to amend to add claims “regarding the constitutionality of
Ohio’s lethal injection protocol” (Motion, ECF No. 155, PageID 4425). Petitioner sought to add
two grounds for relief:
FIFTEENTH
GROUND
FOR
RELIEF:
MICHAEL
TURNER’S EXECUTION WILL VIOLATE THE EIGHTH
AMENDMENT BECAUSE OHIO’S LETHAL INJECTION
PROTOCOL WILL RESULT IN CRUEL AND UNUSUAL
PUNISHMENT.
SIXTEENTH
GROUND
FOR
RELIEF:
MICHAEL
TURNER’S
EXECUTION
WILL
VIOLATE
THE
FOURTEENTH AMENDMENT BECAUSE OHIO’S LETHAL
INJECTION PROTOCOL WILL DEPRIVE HIM OF EQUAL
PROTECTION OF THE LAW [sic].
Id. at PageID 4431, 4433.
On May 3, 2012, the Magistrate Judge granted the Motion to Amend over the Warden’s
opposition (ECF No. 165), relying entirely on the parallel decision to allow a similar motion to
amend in Hughbanks v. Hudson, Case No. 1:07-cv-111 (Order, ECF No. 131). In Hughbanks
the Court rejected the Warden’s statute of limitations defense on the ground that “capital habeas
petitions raising lethal injection protocol claims [are] timely if brought within one year of the
various 2011 revisions to Ohio’s lethal injection protocol . . .” Id. at PageID 1800.

2

The Warden appealed the allowance of amendment and Judge Black, to whom the case
had been reassigned when the motion to amend was filed, overruled the Warden’s objections,
concluding that (1) Turner’s lethal injection protocol claims were cognizable in habeas corpus on
the basis of Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), and the Magistrate Judge’s statute
of limitations analysis was not clearly erroneous or contrary to law. (Decision and Entry, ECF
No.204, PageID 9239, citing Chinn v. Bradshaw, No. 3:02-cv-512, 2012 U.S. Dist. LEXIS
93083 (S.D. Ohio July 5, 2012)(Sargus, J.)(overruling both cognizability and statute of
limitations objections to allowance of similar lethal injection protocol amendments by the
undersigned Magistrate Judge). At the same time, but in a separate Entry, Judge Black found the
pending Reports and Recommendations on the merits and on a certificate of appealability to be
moot on the basis of S. D. Ohio Civ. R. 57.2 which provides that
[T]he Court’s opinion in any capital habeas corpus case “shall
separately state each issue raised by the petition and will rule
expressly on each issue stating the reasons for each ruling made.”
The Court will not be in a position to comply with Rule 57.2 until
the newly-added claims are adjudicated and Magistrate Judge Merz
has filed a report and recommendations on those claims.

(ECF No. 205, PageID 9240).
Turner filed his Second Amended Petition May 30, 2013 (ECF No. 209). Effective
October 10, 2013, Ohio amended its lethal injection protocol and Turner sought a stay of these
proceedings because “the claims as currently pleaded may no longer be viable[,] Turner’s
analogous claims are newly ripe again [and] the new execution protocol may give rise to
additional habeas claims that are newly ripe. . .” (ECF No. 219, PageID 10348). Turner noted
that the Sixth Circuit had remanded the Bobby Sheppard capital case on Sheppard’s motion

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seeking remand “for amendment and further proceedings in light of the State of Ohio’s new
lethal-injection protocol, effective October 10, 2013.” Id. at PageID 30349, citing Sheppard v.
Robinson, No. 13-3900 (6th Cir. Dec. 17, 2013)(unpublished, copy at ECF No. 219, PageID
10353).
The Magistrate Judge recommended dismissal of Grounds 15 and 16 because they had
become moot, granted a stay of any consideration of Turner’s lethal injection claims “to and
including March 17, 2014, the sixtieth day after the execution of Dennis McGuire. Not later than
that date, Turner must move to amend to add any claims cognizable in habeas corpus which he
has regarding Ohio’s current lethal injection protocol.” (ECF No. 223, PageID 10367). Over the
Warden’s objections based on Scott v. Houk, 760 F.3d 497, 512 (6th Cir. 2014), and Frazier v.
Jenkins, 770 F.3d 485, 505 (6th Cir. 2014), the Magistrate Judge extended the stay to April 13, 2015
(ECF No. 234).
On March 23, 2015, Turner sought another year’s extension to March 21, 2016, sixty days
after the then-next-scheduled Ohio execution of Ronald Phillips on January 21, 2016 (ECF No. 237).
The Magistrate Judge denied this further extension “for the reasons set forth in Sheppard v.

Robinson, 2015 U.S. Dist. LEXIS 42981 (S.D. Ohio Apr. 1, 2015)” (ECF No. 240, PageID
10531). On June 11, 2015, Turner filed his Third Amended Petition (ECF No. 244).
On June 29, 2015, the United States Supreme Court handed down Glossip v. Gross, 576
U.S. ___, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015). On the same day, Ohio again amended its
lethal injection protocol. Based on Glossip, the Warden renewed his motion to dismiss (ECF No.
246). Concluding that Glossip had changed the landscape upon which Adams, Scott, and Frazier
had been written, the Magistrate Judge

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respectfully recommended that the Third Amended Petition be
dismissed without prejudice for failure to plead a claim cognizable
in habeas corpus with sufficient clarity to distinguish it from the
claims Turner has made in In re Ohio Lethal Injection Protocol
Litig. Turner is granted leave to move to file a fourth amended
petition not later than September 30, 2015, relating his claims to
the Ohio lethal injection protocol adopted June 29, 2015, and
showing clearly the distinction from any parallel claims being
made in the Lethal Injection Protocol case.
(ECF No. 251, PageID 10900-01). Judge Black adopted that recommendation without any
objection (ECF No. 254) and Petitioner filed the Motion to Amend now before the Court.

Positions of the Parties

Petitioner’s Motion

Turner argues that “[t]he critical distinction between lethal-injection claims in § 1983
actions and lethal-injection claims in habeas petitions is the type of remedy available to a
successful litigant.” (Motion, ECF No. 253, PageID 10909). He posits that the grant of relief in
the § 1983 case to which he is a party “would not necessarily preclude Turner’s execution;
however, if Turner is successful in his habeas corpus proceeding, his death sentence would be
invalidated.” Id. Glossip is distinguishable, he says, because the death row plaintiffs in that case
“did not attack the validity of their death sentences.” Id. Glossip is inapplicable, he asserts,
because he seeks to amend to allege that Ohio “can never execute by lethal injection him1 –
rendering his sentence constitutionally invalid.” Id. at PageID 10910. He notes the distinction

1

Thus in the original. Presumably “can never execute him by lethal injection” is the intended construction of the
sentence.

5

between injunctive and habeas relief explained in Hill v. McDonough, 547 U.S. 573 (2006), and
asserts that Hill
reflects the critical distinction between the remedy of a claim
seeking to enjoin the specific circumstances of how a lethalinjection is proposed to be carried out (one properly brought in a §
1983 action) and a lethal-injection claim seeking to invalidate the
death sentence entirely (one properly reserved for a habeas
petition).
(ECF No. 253,PageID 10910-11.) If he is successful on his lethal-injection claims in habeas -the ones he wishes to plead in his proposed Fourth Amended Petition -- this Court will rule “that
Ohio cannot constitutionally execute Michael Turner under the circumstances that exists now or
that could exist in the future. . . .” Id. Turner avows he is not making
an across-the-board challenge to lethal injection in general,
however. Other states may be capable of using lethal injection to
execute other inmates without violating the Constitution, . . .
However, Ohio’s track record in conducting lethal injection
executions and Turner’s individual characteristics demonstrate
that Ohio will never be able to execute Turners [sic] using lethal
injection without violating federal law and without committing a
constitutional violation. [Therefore] Turner’s death sentence is . . .
invalid.
Id. at PageID 10911-12. Finally, Turner notes that he must, under Glossip, plead an alternative
method of execution in his § 1983 action, whereas pleading such an alternative in this action
would defeat his lethal-injection habeas claims. Id. at PageID 10912.
In granting leave to move to amend, the Court ordered that any such motion “show [ ]
clearly the distinction from any parallel claims being made in the Lethal Injection Protocol
case.” (ECF No. 251, PageID 10901). In response, Turner adverts to the claims made in the
Amended Omnibus Complaint in In Re: Ohio Execution Protocol Litigation, Case No. 2:11-cv1016 as being
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fifteen federal law claims including Eighth and Fourteenth
Amendment Claims, access to counsel claims, equal protection
claims under the Fourteenth Amendment, fundamental rights
claims, First Amendment claims, Fourteenth Amendment due
process claims, Fourteenth Amendment Privileges and Immunities
claims for experimentation on prisoners, ex post facto claims, bill
of attainder claims, resuscitative health care claims, deliberate
indifference to serious medical needs claims, RICO claims, and
assorted state law claims.
Id. at PageID 10914, citing Case No. 11-1016, ECF 546, Table of Contents PageID 14721-24.
He quotes verbatim the fourteen “separate” claims he made in his Supplemental Individual
Complaint in In Re: Ohio Execution Protocol Litigation:
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-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.
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.
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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 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.
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.
Id. at PageID 10913-14.
Without making a claim-by-claim comparison, Turner conclusorily asserts that

8

The lethal injection claims in Turner’s proposed Fourth Amended
Petition are limited to claims that Turner’s execution by lethal
injection will violate federal law and will constitute cruel and
unusual punishment under the Eighth Amendment, that Ohio’s
failure and inability in the future to guarantee a quick and painless
death will deny Turner due process, and that Ohio’s lethal injection
statute and June 29, 2015 lethal injection protocol are preempted
by federal law because any attempt by Ohio to obtain, procure, or
administer lethal injection execution drugs would violate the
Federal Food Drug and Cosmetic Act (FDCA) and the Controlled
Substances Act (CSA).
Id. at PageID 10914.
The Grounds for Relief Turner proposes to add by amendment are
Ground One: The State of Ohio cannot constitutionally execute
Turner because the only means available for executing him violate
the Eighth Amendment.
Sub-claim A: Any drug DRC can procure to use to
execute Turner 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
other means available to execute Turner that comply with
the Constitution.
Sub-claim B: Any drug DRC can procure to use to
execute Turner via lethal injection poses an objectively
intolerable risk of causing a lingering and/or undignified
death in violation of the Eighth Amendment. Ohio has no
other means available to execute Turner that comply with
the Constitution.
Sub-claim C: 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 Turner in violation of the Eighth Amendment.
Ohio has no other means available to execute Turner that
comply with the Constitution.
Sub-claim D: The lack of legally obtainable, effective
drugs to conduct lethal-injection executions, and the
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reality that Ohio has no other means available to execute
Turner that comply with the Constitution causes Turner
psychological torture, pain and suffering in violation of
the Eighth Amendment.
Sub-claim E: The unavoidable variations inherent in
Ohio’s lethal-injection system and DRC’s continued
inability to properly administer its execution protocol
present a substantial, objectively intolerable risk of
serious harm to Turner in violation of the Eighth
Amendment. Ohio has no other means available to
execute Turner that comply with the Constitution.
Sub-claim F: Turner’s unique, individual physical and/or
mental characteristics will cause any execution by lethal
injection under Ohio law to violate the Eighth
Amendment. Ohio has no other means available to
execute Turner that comply with the Constitution.
Ground Two: Turner’s execution by lethal-injection under Ohio
law will violate the Due Process Clause of the Fourteenth
Amendment.
Sub-claim A: Execution by lethal injection under Ohio
law will deny Turner’s interests in expecting and receiving
a quick and painless death in violation of the Due Process
Clause of the Fourteenth Amendment. Ohio has no other
means available to execute Turner that comply with the
Constitution.
Sub-claim B: Turner’s execution by lethal-injection under
Ohio law will be a human experiment on a non-consenting
prisoner in violation of the Due Process Clause of the
Fourteenth Amendment. Ohio has no other means available
to execute Turner that comply with the Constitution.
Ground Three: Turner’s sentence of death by lethal injection
under Ohio law is an invalid sentence and thus unconstitutional
because Ohio’s execution laws are preempted by federal law.
Sub-claim A: Lethal-injection executions in Ohio are
unconstitutional
because
Ohio
statutory
and
administrative law governing executions, as written and
as administered, are preempted by federal law, leaving
10

Ohio with no valid lethal-injection statute and no valid
lethal-injection protocol, and thus no way to carry out a
death sentence.
Sub-claim B: 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.
Sub-claim C: The Ohio lethal-injection statute and
DRC’s Execution Protocol purport to permit DRC to
obtain controlled substances used in executions without a
valid prescription, in violation of the CSA and DEA
regulations.
Sub-claim D: The Ohio lethal-injection statute and
DRC’s Execution Protocol purport to authorize DRC to
provide controlled substances to Drug Administrators in
contravention of the CSA and DEA regulations.
Sub-claim E: DRC’s actions in obtaining execution
drugs violate the FDCA because those drugs used in an
execution are unapproved drugs and/or misbranded drugs
and/or constitute unapproved Investigational New Drugs.
Sub-claim F: Thiopental sodium can never be used as an
execution drug in compliance with the FDCA.
(ECF No. 253-1, PageID 10918-20.)

Warden’s Opposition

Respondent opposes the amendment on grounds that none of Turner’s proposed new
claims is cognizable in habeas corpus, in light of Glossip’s reading of Hill v. McDonough, 547
U.S. 573 (2006), that all method-of-execution claims must be brought under § 1983 and not in
habeas. (Amended Opposition, ECF No. 256, PageID 10974-78.) Glossip, the Warden argues,

11

effectively overrules Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), under a broad reading of
which this Court had permitted method-of-execution claims to be brought in habeas even though
they were simultaneously pending in a § 1983 proceeding. Id. at PageID 10978-80. Glossip is
also said not to be limited to Eighth Amendment method-of-execution claims. Id. at PageID
10981-82. Finally, the Warden argues the proposed amendments are untimely and barred by the
statute of limitations, 28 U.S.C. § 2244(d). Id.

Petitioner’s Reply

In reply, Turner again asserts his proposed new habeas corpus method-of-execution
claims are distinct from § 1983 method-of-execution claims because his habeas claims “attack
the validity of his death sentence [by alleging] that the State of Ohio is, has been, and will always
be incapable of executing him by lethal injection without violating federal law and the federal
constitution, thus rendering his death sentence unenforceable and therefore invalid.” (Reply,
ECF No. 257, PageID 10987.) Reiterating what he said in the Motion, Turner again asserts “the
critical distinction lies in the remedy that is available under § 1983 as opposed to the remedy that
is available in habeas.” Id.
In opposing the statute of limitations defense, Turner argues he must necessarily attack
the current method of execution and it is well settled that lethal injection habeas challenges begin
anew whenever the protocol is changed. (ECF No. 257, PageID 10993-95.)

12

ANALYSIS

In light of Glossip, this Court’s prior treatment of lethal injection claims in habeas corpus
requires severe modification. The Court has previously relied on a broad reading of Adams,
supra, in permitting method-of-execution claims to be brought in habeas, regardless of whether
the same claims were simultaneously pending in a § 1983 action. As Judge Frost of this Court
wrote when confronted with the same argument, “Glossip undeniably upends this practice.”
Henderson v. Warden, No. 1:12-cv-703, 2015 U.S. Dist. LEXIS 134120 *9 (S.D. Ohio, Sept. 30,
2015)2. The undersigned has already reached the same conclusion, writing “[t]his Court’s broad
reading of Adams is inconsistent with the Supreme Court’s ruling in Glossip. . .” Henness v.
Jenkins, No. 2:14-cv-2580, 2015 WL 666624 *5 (S.D. Ohio, Nov. 2, 2015).
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."
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

2

Surprisingly, given that Judge Frost’s opinion in Henderson marks this Court’s first recognition of the change
wrought by Glossip, he did not appeal to the Sixth Circuit from the dismissal of his case.

13

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).

Cognizability

As Judge Frost has held in Henderson, supra, merely placing a habeas label on claims or
asserting that their success will invalidate a death sentence does not satisfy Glossip when the
distinction between method-of-execution claims which must be brought under § 1983 and proper
habeas lethal injections claims is not maintained. Henderson, supra, at * 12-13, citing this
Court’s prior decision in this case, Turner v. Hudson, No. 2:07-cv-595, 2015 U.S. Dist. LEXIS
119882 (S.D. Ohio Sept. 9, 2015). Instead of comparing the proposed new Grounds for Relief
with the claims he has made in the § 1983 litigation and showing the differences, Turner has
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relied entirely on the difference in remedy (injunction versus unconditional writ) and the fact that
he had not proposed to plead an alternative method of execution in the new habeas claims.
Turner’s proposed four new Grounds for Relief are properly § 1983 claims because they
do not attack the validity of his death sentence as imposed by the Ohio courts, but rather the
method by which that sentence will be carried out.
For example, Ground One, Sub-claim A, speaks to the ability of Ohio to obtain one or
more execution drugs that will not cause “unnecessary, severe pain, suffering, degradation,
humiliation, and/or disgrace in violation of the Eighth Amendment.” If and when particular
drugs are identified and obtained by the Ohio Department of Rehabilitation and Corrections
(“ODRC”) with which the ODRC proposes to execute Turner and Turner can prove to the
satisfaction of the judge presiding in the § 1983 case that the use of those drugs will be
unconstitutional, Turner can obtain complete relief by injunction against the use of those drugs to
carry out his execution. Proof will depend on evidence presented in a hearing on motion for
injunctive relief which may be preceded by discovery under the Federal Rules of Civil
Procedure.
Conversely, to obtain habeas corpus relief on Ground One, Sub-claim A, Turner would
have to show that his death sentence is invalid because it will be carried out by as-yetunidentified drugs whose use violates clearly established Supreme Court decisional law. Turner
has not identified any such Supreme Court decisional law and at the level of particular drugs, no
such decisional law is known to this Court. Or perhaps when it came down to actually litigating
Sub-claim A, Turner might allege the claim was unexhausted and seek a stay and remand to the
Ohio courts to have that claim decided.

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As another example, consider Ground Three which asserts “Ohio’s execution laws are
preempted by federal law.”

Turner points to no Supreme Court decisional law clearly

establishing any such proposition.

Because habeas corpus is available only to address

constitutional issues and pre-emption is not argued in the Motion to be a matter of constitutional
law, Ground Three appears to be non-cognizable on its face. Conversely, that can be and has
been raised in the § 1983 litigation and appears to be appropriate for litigation there. Certainly a
federal court has authority to consider the federal question of pre-emption and to permanently
enjoin the ODRC from violating a pre-emption order.
The Court is not of the opinion that no claim relating to method of execution can be
raised in habeas. For example, should Ohio propose to execute Turner by a method which the
Framers would have considered cruel and unusual (e.g., burning at the stake), this Court believes
the Glossip court would allow such a claim to be litigated in habeas. But the claims proposed to
be added by the Fourth Amended Petition are not of that sort, despite the conclusory claim that
they would “invalidate” the death sentence.
Moreover, Turner has cited no authority for permitting a death row inmate to proceed
simultaneously on the same claims in both a § 1983 action and in habeas. Adams did not address
that issue, but this Court read Adams broadly as at least not prohibiting that practice. In light of
Glossip’s deepening of the distinction between § 1983 claims and habeas claims, that practice
can no longer be justified.
There is no doubt that at least on some issues, Turner is proposing to litigate in both cases
simultaneously.

For example, in his Twenty-Sixth Cause of Action in the Supplemental

Individual Complaint in In Re: Ohio Execution Protocol Litigation, he claims his execution

16

pursuant to Ohio law will make him the unwanted non-consensual object of human
experimentation. The same claim is made in Ground Two, Sub-Claim B, of the proposed new
Grounds for Relief.3
The Court concludes Turner has not shown that any one of his proposed new Grounds for
Relief is cognizable in habeas corpus. The Motion to Amend is DENIED on that basis.

Statute of Limitations

Neither party argues the limitations issue at length, perhaps because this Court has
previously and consistently held that the statute begins to run anew as to lethal injection claims
whenever a new lethal injection protocol is adopted by the State. (See Response, ECF No. 257 at
PageID 10994, citing, inter alia, Sheppard v. Warden, No. 1:12-cv-198, 2013 WL 146364, at *7,
2013 U.S. Dist. LEXIS 5560, at *20 (S.D. Ohio Jan. 14, 2013) (citing Cooey v. Strickland, 604 F.3d
939, 942 (6th Cir. 2010).

This Court’s reliance on Cooey was misplaced. In that § 1983 case, the Sixth Circuit held
that “[g]iven the change of [Ohio’s lethal injection] policy, the statute of limitations to challenge
the new procedure began to run anew.” 604 F.3d at 942. But the statute of limitations for §
1983 cases and for habeas are completely different.
In all constitutional tort actions, the court borrows the statute of limitations for personal
torts from the State where the claim arose. Hardin v. Straub, 490 U.S. 536 (1989). The statute of
3

If Turner should say in objection that the Twenty-Sixth Cause of Action is brought under the Eighth Amendment
and Sub-claim B asserts human experimentation in violation of the Due Process Clause of the Fourteenth
Amendment and they are therefore “different,” the Court would ask why Petitioner’s counsel did not point that out
in the Motion to Amend and argue for why it makes a difference when they were expressly ordered to show “clearly
the distinction from any parallel claims being made in the Lethal Injection Protocol case.” (ECF No. 251, PageID
10901).

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limitations under Ohio law for actions brought pursuant to 42 U.S.C. § 1983 is two years. Ohio
Revised Code § 2305.10. Nadra v. Mbah, 119 Ohio St. 3d 305 (2008); Banks v. City of
Whitehall, 344 F.3d 550, 551 (6th Cir. 2003), citing Browning v. Pendleton, 869 F.2d 989 (6th
Cir. 1989)(en banc). In Ohio, the statute of limitations for a § 1983 claim is two years and runs
from “when the plaintiff knows or has reason to know of the injury which is the basis” of the
claim. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003).
Federal law determines when the statute of limitations for a civil rights action begins to
run. Wallace v. Kato, 549 U.S. 384 (2007). The standard rule is that the right accrues when a
plaintiff has a complete and present cause of action. Id. That is when the plaintiff can file suit
and obtain relief. Id., citing Bay Area Laundry& Dry Cleaning Pension Fund v. Ferbar Corp. of
Cal., 522 U.S. 192 (1997). The Sixth Circuit’s decision in the later Cooey case, supra, is
consistent with its earlier Cooey decision, Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007),
where the § 1983 statute was held to begin to run either when Ohio adopted lethal injection as a
possible method of execution in 1993 or when lethal injection was made the only method in
2001. Because an inmate cannot bring suit to challenge a particular lethal injection method until
that method is adopted and the § 1983 statute runs from the date of discovery of injury, it is
logical to run the date anew from adoption of a new lethal injection protocol.
Habeas corpus, of course, has its own statute of limitations in 28 U.S.C. § 2244(d). The
statute runs for one year from the date a conviction is final or the date a state-created impediment
is removed or a new constitutional right is recognized or the factual predicate of the claim was
discovered. Petitioner makes no argument for any start date other than finality.
If Turner were to rely on the date of adoption of the current protocol as the date of

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reasonable discovery of the required factual predicate under 28 U.S.C. § 2244(d)(1)(D), he
would present under a different guise the cognizability problem dealt with above, to wit, if the
case is about the particulars of a given lethal injection protocol, why is it not properly brought
under § 1983? On the other hand, to interpret § 2244(d)(1)(D) as re-starting the habeas statute
every time some change, however minor, is made in the method of execution would undermine
the purpose of § 2244, as part of the AEDPA, to promote finality of state court judgments.
The Court concludes the statute of limitations ran in this case one year after the
conviction became final. Therefore the proposed amendments are futile because they would be
dismissable as barred by the statute of limitations. The Motion to Amend is DENIED on that
basis as well.

January 19, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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