Turner v. Warden

Filing 282

DECISION AND ORDER - The Court sua sponte extends Petitioner's leave to file a renewed motion to amend to include lethal injection claims to and including April 17, 2017, on the following conditions: 1. The grounds for relief requested to be ad ded shall be set forth verbatim in the body of the motion or in an attachment as previously done. There shall be no incorporation by reference. 2. The motion shall be accompanied by a memorandum of law supporting the amendment under Fed. R. Civ. P. 15. Petitioner shall demonstrate cognizability by reference to Adams III and shall include parallel PageID references to each place in the pending complaint in In re: Ohio Injection Protocol Litig., Case no 2:11-cv-1016, where a claim is made based on the same constitutional right relied on in the proposed amendment. 3. Because the Warden has raised a statute of limitations defense, Petitioner shall show why the proposed amendments are not barred by the statute of limitations. 4. If Petitioner intends to take the position that a motion to amend is a dispositive motion on which a Magistrate Judge is unauthorized to act but must file a report and recommendations, Petitioner shall state that position in the motion to amend and provide legal authority in support. Signed by Magistrate Judge Michael R. Merz on 4/6/2017. (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 corpus case is before the Court on Petitioner’s Supplemental
Memorandum (ECF No. 279) in Support of his Renewed Motion for Leave to File a Fourth
Amended Petition (ECF No. 253).
The Magistrate Judge had denied that Motion, then withdrew the denial and ordered
supplemental briefing in light of Adams v. Bradshaw, 817 F.3d 284 (6th Cir. March 15,
2016)(Adams II).

Ultimately briefing was postponed until after issuance of the mandate

following Adams v. Bradshaw, 826 F.3d 3061 (6th Cir. June 13, 2016)(Adams III).
Although Petitioner’s prior Motion to file a Fourth Amended Petition was denied without
prejudice to renewal not later than thirty days after the Adams mandate, Petitioner did not re-file
such a motion, but only the instant Supplemental Memorandum which says it is in support of the
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Petitioner persistently refers to this opinion as Adams II when it is in fact the third published opinion in the Adams
case. It will be referred to as Adams III herein.

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first of those Motions (ECF No. 279, PageID 11276, citing ECF No. 253). It also purports to
incorporate by reference all of ECF No. 253.
In his Exhibit 1 entitled “Proposed Lethal Injection Grounds for Relief,” Turner states the
following proposed additions to his Petition:
FIFTEENTH GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because the only manner
available under the law to execute him violates his Eighth
Amendment rights.
SIXTEENTH GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because the only manner
available for execution violates the Due Process Clause or the
Privileges or Immunities Clause of the Fourteenth Amendment.
SEVENTEENTH GROUND FOR RELIEF: DRC cannot
constitutionally execute Petitioner because the only manner of
execution available for execution under Ohio law violates the
Equal Protection Clause of the Fourteenth Amendment.
EIGHTEENTH GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Petitioner because Ohio’s
violations of federal law constitute a fundamental defect in the
execution process, and the only manner of execution available for
execution depends on state execution laws that are preempted by
federal law.

These are not the same proposed lethal injection Grounds for Relief attached to
Petitioner’s Motion for Leave to File a Fourth Amended Petition (ECF No. 253).
There is no pending motion to amend. The Court sua sponte extends Petitioner’s leave to
file a renewed motion to amend to include lethal injection claims to and including April 17,
2017, on the following conditions:
1.

The grounds for relief requested to be added shall be set
forth verbatim in the body of the motion or in an

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attachment as previously done.
incorporation by reference.

There shall be no

2.

The motion shall be accompanied by a memorandum of
law supporting the amendment under Fed. R. Civ. P. 15.
Petitioner shall demonstrate cognizability by reference to
Adams III and shall include parallel PageID references to
each place in the pending complaint in In re: Ohio
Injection Protocol Litig., Case no 2:11-cv-1016, where a
claim is made based on the same constitutional right relied
on in the proposed amendment.

3.

Because the Warden has raised a statute of limitations
defense, Petitioner shall show why the proposed
amendments are not barred by the statute of limitations.

4.

If Petitioner intends to take the position that a motion to
amend is a dispositive motion on which a Magistrate Judge
is unauthorized to act but must file a report and
recommendations, Petitioner shall state that position in the
motion to amend and provide legal authority in support.

April 6, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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