Turner v. Warden
REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS - This Court should follow Campbell and dismiss Grounds for Relief XV, XVI, XVII, and XVIII without prejudice to their consideration in In re: Lethal Injection Protocol Litig., Case No. 2:11-cv-1016. Objections to R&R due by 12/22/2017. Signed by Magistrate Judge Michael R. Merz on 12/8/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
MICHAEL R. TURNER,
Case No. 2:07-cv-595
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz
-vsSTUART HUDSON, Warden,
REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS
This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
Turner’s lethal injection invalidity claims for lack of cognizability in habeas corpus (ECF No.
298). Turner opposes the Motion (ECF No. 301) and the Warden has filed a Reply in support
(ECF No. 303).
The Grounds for Relief which the Warden seeks to have dismissed are as follows:
XV. The State of Ohio cannot constitutionally execute Turner
because the only manner available under the law to execute him
violates his Eighth Amendment rights.
XVI. The State of Ohio cannot constitutionally execute Michael
Turner because the only manner available for execution violates
the Due Process Clause or the Privileges or Immunities Clause of
the Fourteenth Amendment.
XVII. DRC [Ohio Department of Rehabilitation and Corrections]
cannot constitutionally execute Michael Turner because the only
manner of execution available for execution under Ohio law
violates the Equal Protection Clause of the Fourteenth
XVIII. The State of Ohio cannot constitutionally execute Michael
Turner 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.
(Fourth Amended Petition, ECF No. 290, PageID 11554.)
The Warden relies on the recent Sixth Circuit decisions in In re: Tibbetts, 869 F.3d, 403
(6th Cir. 2017), and In re: Campbell, 874 F.3d 454 (6th Cir. 2017). Campbell was decided after
the Motion was filed1 and is more directly in point. The Magistrate Judge believes the Court
should follow Campbell and grant Respondent’s Motion for the following reasons.
In Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court held that a method-ofexecution constitutional claim could be brought in a § 1983 case, over the objection of a number
of States that such claims could only be brought in habeas corpus. The Court adhered to that
view two years later in Hill v. McDonough, 547 U.S. 573 (2006). Shortly after Nelson was
decided, death row inmates in Ohio initiated method of execution litigation in this Court under
42 U.S.C. § 1983 in Cooey v. Taft, Case No. 2:04-cv-1156. As consolidated with other inmates’
claims, that case remains pending under the caption In re Ohio Execution Protocol Litig., Case
No. 2:11-cv-1016 (the “Protocol Case”.) The Protocol Case is very active litigation, having
garnered 743 filings and three preliminary injunction hearings since Ohio announced its intention
to resume executions on October 3, 2016. Michael Turner is a Plaintiff in the Protocol Case,
represented by Allen Bohnert and Carol Wright of the Capital Habeas Unit of the Federal Public
The Warden filed a Notice of Supplemental Authority with a copy of the slip opinion on October 26, 2017, the day
after Campbell was decided (ECF No. 300).
Defenders Office for the Southern District and other experienced capital litigators.
Civil rights litigation provides a plaintiff with many advantages over habeas corpus. §
1983 cases enjoy the full scope of federal civil discovery, whereas discovery in habeas cases is
only with court permission. In a civil rights case it is open to counsel to argue constitutional
claims de novo, whereas habeas is a backward-looking remedy concerned with the validity of a
judgment entered years earlier and judged by Supreme Court law as it stood when the state
courts decided the case.
Civil rights litigants are entitled to present evidence, both on
preliminary injunction and at trial, whereas evidence-taking in habeas is constrained by 28
U.S.C. § 2254(e) and Cullen v. Pinholster, 563 U.S. 170 (2011).
Nevertheless, for the past six years the death penalty petitioners’ bar has been filing
substantively parallel constitutional claims in both § 1983 and habeas corpus. This practice has
been supported by decisions of the Sixth Circuit in the Stanley Adams capital habeas case from
the Northern District of Ohio. In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)(Adams I) ,
the court held that a lethal-injection-invalidity claim could be brought in habeas, inverting the
holdings in Nelson and Hill. This Magistrate Judge and other judicial officers of this Court
faithfully followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S. Ct. 2726
In Glossip the Supreme Court interpreted its earlier decision in Hill and wrote:
We held [in Hill] 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.
135 S. Ct. at 2738. This Magistrate Judge read Glossip as disapproving of what was permitted in
Adams I and other judicial officers agreed. District Judge Frost put the matter most succinctly.
In Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011), the
Sixth Circuit held that method-of-execution challenges are
cognizable in habeas corpus. This Court and other courts within
this District have since relied on Adams in accepting the
proposition that method-of-execution claims properly sound in
habeas corpus. Glossip now undeniably upends that practice.
Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015).
However, the Adams case came back to the Sixth Circuit in 2016 and the Adams panel
held the result in Adams I was not changed by Glossip. Adams v. Bradshaw, 826 F.3d 306 (6th
Cir. 2016)(Adams III ), cert. denied sub. nom. Adams v. Jenkins, 137 S. Ct. 814, 196 L. Ed. 2d 60
(Jan. 17, 2017). After Adams III, this Court reversed course again and began allowing the
pleading of lethal injection invalidity claims in habeas. For example, in the Decision and Order
permitting the most recent amendments in this case, the undersigned wrote:
Petitioner asserts these proposed new claims are cognizable in
habeas corpus under the Sixth Circuit’s decision in Adams v.
Bradshaw, 826 F.3d 306 (6th Cir. 2016)(Adams III). The Warden
disputes that claim, but this Court has found parallel claims in
other capital habeas corpus cases to be cognizable under Adams
III. See, e.g. Smith v. Pineda, 2017 U.S. Dist. LEXIS 50346, *1
(S.D. Ohio Apr. 3, 2017); Tibbetts v. Warden, 2017 U.S. Dist.
LEXIS 51968 (S.D. Ohio Apr. 5, 2017); Chinn v. Jenkins, 2017
U.S. Dist. LEXIS 56019 (S.D. Ohio Apr. 12, 2017). Simple
application of stare decisis requires finding the proposed new
claims are cognizable.
(Decision and Order, ECF No. 288, PageID 11546-47.)
In Campbell, the Sixth Circuit analyzed Adams III , writing:
After Glossip was decided, the Adams case returned to this Court.
Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) (Adams III).
Adams III came on appeal after our remand to the district court
resulted in development of the facts. Id. at 309. The factual
development revealed that Adams was protesting the
"psychological toll" resulting from Ohio's recent changes to its
lethal-injection protocol—facts not presented in Adams II.2 Id. at
320. We immediately responded to this revelation by holding that
Adams "failed to present this claim to the state courts, nor did he
raise it in his habeas petition." Id. This failure, as a matter of law,
barred Adams from pursuing the claim in habeas. Id.; 28 U.S.C. §
2254(b); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L.
Ed. 2d 594 (1977).
Notwithstanding the procedural default, the panel proceeded to
speculate in dicta about the viability of a psychological-torment
claim. Adams III, 826 F.3d at 320. It ultimately found the claim
unsupported by the substantive law. Even then, the panel
proceeded to discuss—again in dicta—the holding of Adams II in
light of Glossip. Id. at 321. It reiterated that "Adams's case is
distinguishable from Hill [v. McDonough, 547 U.S. 573 (2006)]
because Adams argues that lethal injection cannot be administered
in a constitutional manner, and that his claim 'could render his
death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547
U.S. at 580). Therefore, "to the extent that [a petitioner] challenges
the constitutionality of lethal injection in general and not a lethal
injection protocol, his claim is cognizable in habeas." Id.
We think this dictum mischaracterizes both Adams II and Glossip.
And, of course, dictum in a prior decision—as opposed to a
holding—does not bind future panels, including this one. 6th Cir.
R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir.
2010) (explaining that statements which are "not necessary to the
outcome" are not binding on later panels). The Adams III panel
had already concluded that the petitioner's claim was both
procedurally defaulted and forfeited. Adams III, 826 F.3d at 320.
And although we may choose to excuse forfeiture in an exceptional
case, we cannot ignore procedural default absent an express
finding of cause and prejudice. Wainwright, 433 U.S. at 86-87.
Thus, the statements "necessary" to the decision in Adams III
ended when the panel acknowledged the default and forfeiture
without any indication that an exception was present. Adams III,
826 F.3d at 320.
There are three published opinions of the Sixth Circuit in Stanley Adams’ habeas corpus case: Adams v.
Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); Adams v. Bradshaw, 817 F.3d 284 (6th Cir. March 15, 2016); and
Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016), cert. den. sub. nom. Adams v. Jenkins, 137 S. Ct. 814,
106 L. Ed. 2d 602 (2017). Adams III resulted from a motion to clarify Adams II .
Thus, to the extent that Adams III purported to permit Baze-style
habeas claims that refuse to concede the possibility of an
acceptable means of execution, it is not controlling. Since Glossip's
holding directly addressed that question, it is binding on us, and we
follow it today. In doing so, we do not intend to diminish the
importance or correctness of the holding in Adams II that § 1983
and habeas are not mutually exclusive as a per se rule. All Baze
and Glossip require is that— in the peculiar context of method-ofexecution claims—the death-row inmate must proceed under §
2017 U.S. App. LEXIS 21094 at *13-15.
As this judge reads Campbell, it holds that Glossip means what it appeared to many
judges of this Court to mean when it came down: lethal injection invalidity claims must be
brought in a § 1983 case and not in habeas corpus.
The four Grounds for Relief sought to be dismissed are plainly lethal injection invalidity
claims. Grounds 15, 16, and 17 assert Ohio can never constitutionally execute Michael Turner
because of prohibitions in the Eighth and Fourteenth Amendments. Ground 18 relies on the
fundamental defect theory of habeas corpus for violation of federal statutes recognized in Reed v.
Farley, 512 U.S. 339 (1994). The teaching of Campbell is therefore that these claims must be
dismissed as not cognizable in habeas, but without prejudice to their pursuit under § 1983, at
least as to the constitutional claims.
Turner asserts Campbell should not be followed here, but that Adams III remains the
controlling precedent (Response in Opp., ECF No. 301, PageID 11846-48). He relies first of all
on Davis v. Jenkins, No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 161152 (S.D. Ohio Oct. 2,
2017)(Sargus, Ch. J.). Davis found lethal injection invalidity claims remained cognizable in
habeas despite In re: Tibbetts, 869 F.3d 403 (6th Cir. 2017). But Davis was decided three weeks
before Campbell was handed down and could not take that decision into account.
The Campbell court dealt with Adams III by characterizing the language this Court had
followed as dictum. Turner argues Campbell is not controlling because the language in Glossip
on which it relies is also dictum (Response, ECF No. 301, PageID 11846-47). The undersigned
has been reversed by the Sixth Circuit en banc for not taking seriously enough the language of
Glossip – dictum or otherwise. Fears v. Morgan (In re: Ohio Execution Protocol Litig.), 860
F.3d 881, (6th Cir. June 28, 2017)(en banc); cert den. sub nom. Otte v. Morgan, ___ U.S. ___,
2017 WL 3160287 (July 25, 2017)(“neither, as the plaintiffs suggest, is Glossip irrelevant here.
Quite the contrary: the Court's opinion contains plenty of reasoning that was not confined to the
record there—and which therefore binds us just as much as the reasoning in any other opinion of
the Supreme Court.”) The Campbell majority held itself bound by the language in Glossip that
Turner asserts is dictum, but that this Court followed assiduously in the interim between Glossip
and Adams III. As a subordinate court, we also are bound by what the Sixth Circuit now says
Turner argues Campbell does not apply to his “fundamental defect” statutory claim3
because Glossip dealt exclusively with Eighth Amendment claims (Response, ECF No. 301,
PageID 11847). In Bays v. Warden, 2017 U.S. Dist. LEXIS 200400 (S.D. Ohio Dec. 6, 2017),
the Magistrate Judge dealt with the same argument in another capital habeas case. Bays pleaded
a claim which is a verbatim copy of Turner’s Ground XVIII. Campbell had pled the same claim
and the Sixth Circuit dismissed it without discussion.4
In the body of his Response, Turner refers to this as his “Twenty-Eighth Ground for Relief,” referring to ECF No.
290, PageID 11760. The Magistrate Judge assumes this is a typographical error since there are only eighteen
grounds for relief in the Fourth Amended Petition and what appears at PageID 11760 is the eighteenth and last
ground for relief.
Perhaps because Campbell was handed down on October 25, 2017, in the shadow of Campbell’s scheduled
execution for November 15, 2017. As has been widely reported, that execution was halted in process by ODRC
Director Gary Mohr.
In Bays the Magistrate Judge wrote that “[a]lthough Campbell only expressly addressed
Eighth Amendment claims, its logic is fully applicable” to the statutory fundamental defect
claim. 2017 U.S. Dist. LEXIS 200400 at *22. The Campbell court wrote:
[T]he Glossip Court necessarily barred all habeas petitions
challenging "a particular application of a particular protocol to a
particular person" as unconstitutionally painful. In re Tibbetts, 869
F.3d 403, 406 (6th Cir. 2017). These challenges are properly
remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
A review of fundamental habeas and § 1983 principles confirms
that this is the correct view of the law. Only when a serious error
infects the very fact of a death sentence can the writ grant relief.
See Heck, 512 U.S. 477, 481, 114 S. Ct. 2364, 129 L. Ed. 2d 383;
Buck v. Davis, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017). This
principle arises because habeas relief does not exist to ferret out
every constitutional violation, or even to directly prohibit the
government from breaking the law; instead, it exists to relieve the
prisoner of an unlawful sentence. See, e.g., Stone v. Powell, 428
U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); Gall v.
Scroggy, 603 F.3d 346, 353 (6th Cir. 2010). To that end, the writ
necessarily "provides the petitioner the right to relief from all
direct and collateral consequences of the unconstitutional
[sentence]." Gall, 603 F.3d at 353 (emphasis added). Thus, if a
petitioner's legal theory would not inherently require the
nullification of his death sentence, he has no business proceeding
in a habeas court. The Great Writ is not concerned with the
piecemeal reformation of an imperfect criminal justice system.
In contrast, § 1983 is engineered to accomplish this lofty goal. The
statute empowers a court to enjoin, "in equity," "the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983 (emphasis
added). When properly invoked, the statute can be used to compel
the government to recognize that even the guilty have rights, and
that even a conviction or death sentence does not deprive a person
of their humanity. See, e.g., Baze, 553 U.S. at 52; Hudson v.
McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992);
Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1
(1985); Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976). Indeed, Ohio death-row inmates—including
Campbell—are currently litigating the constitutionality of the
protocol in a § 1983 action, seeking a declaration that Ohio's
execution protocol is torturously painful. See In re Ohio Execution
Protocol Litig., No. 2:11-cv-1016 (S.D. Ohio). In fact, Campell's
motion for a preliminary injunction to stay execution is set for
hearing this very week. Ultimately, this is the relief that all
method-of-execution claims seek: an order directed at state
officials, declaring that the state's ends do not justify its means, and
requiring the state to find another, less cruel way to enforce a
judgment of death against the prisoner.
2017 U.S. App. LEXIS 21094, *11-135.
Turner also asserts this Court should give “little, if any, precedential weight” to Campbell
or Tibbetts because they were before the Sixth Circuit on transfer orders from this Court for a
determination under 28 U.S.C. § 2244(b) of whether, being second-or-successive habeas
applications, they could proceed.
While that correctly describes the procedural posture of
Campbell, the Sixth Circuit did not limit itself to deciding the § 2244(b) question but found, in
part, that Campbell could not proceed because his transferred petition did not state a claim
cognizable in habeas.
Turner also cites a number of out-of-circuit § 2244(b) decisions which he says weigh
against giving precedential weight to Campbell. For the reasons given at length in Bays, supra,
these decisions do not support that position. See Bays v. Warden, 2017 U.S. Dist. LEXIS
200400 at *12-14.
Turner also argues Campbell should be given limited precedential weight because it was
decided “without the benefit of full briefing or oral argument regarding the actual merits of the . .
.case[s].” (Response, ECF No. 301, PageID 11850.) Campbell was before the Sixth Circuit on a
Although Campbell is designated for publication, the page citations for the published opinion are not yet available.
motion to remand6 claiming this Court erred in finding the petition second-or-successive. Even
if the Sixth Circuit had found the lethal injection invalidity claims cognizable in habeas and
either that the petition was not second or successive or that it could proceed regardless, there
would not have been a circuit court decision on the “merits” of Turner’s claims until after this
Court had entered judgment. The Sixth Circuit thoroughly considered the cognizability issue,
which is not the same as a merits decision.
This Court should follow Campbell and dismiss Grounds for Relief XV, XVI, XVII, and
XVIII without prejudice to their consideration in In re: Lethal Injection Protocol Litig., Case No.
December 8, 2017.
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. 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
Filed by the same attorney who is lead counsel for Turner, Assistant Federal Public Defender David Stebbins.
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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