Turner v. Warden
SUPPLEMENTAL REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS re 304 REPORT AND RECOMMENDATIONS re 298 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM As To The Lethal Injection Claims filed by Warden Warren Correctional Institution Objections to R&R due by 1/10/2018. Signed by Magistrate Judge Michael R. Merz on 12/27/17. (pb)
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,
SUPPLEMENTAL 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). The Magistrate Judge recommended granting the Motion (Report, ECF No. 304), Turner
objected (ECF No. 305), the Warden responded to those Objections (ECF No. 306), and District
Judge Black has recommitted the matter for a supplemental report (ECF No. 307).
The Magistrate Judge previously allowed the four claims for relief in question (Grounds
XV, XVI, XVII, and XVIII) to be pleaded on the authority of Adams v. Bradshaw, 826 F.3d 306
(6th Cir. 2016)(“Adams III”). The Report concludes that lethal injection invalidity claims are no
longer cognizable in habeas because of the October decision in In re: Campbell, 874 F.3d 454
(6th Cir. 2017).
Adams III is a published opinion as is Campbell. Turner cites the well-established rule
that a panel of the 6th Circuit cannot overrule the holding of a prior panel. But that is not what
the Campbell court purported to do. Instead, it characterized the lethal injection cognizability
language in Adams III (which this Court had been following) as dictum inconsistent with the
Supreme Court’s decision in Glossip v. Gross, 135 S.Ct. 2726 (2015). Only holdings from prior
published decisions are binding precedent. If a later panel characterizes what a prior panel did as
dictum, are the trial courts to ignore that? The Supreme Court, which clearly has the authority to
settle the matter, declined certiorari in both Adams III and Campbell. Adams v. Bradshaw, 826
F.3d 306 (6th Cir. 2016), cert. denied sub. nom. Adams v. Jenkins, 137 S.Ct. 814, 196 L. Ed. 2d
60 (Jan. 17, 2017); In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v.
Jenkins, 2017 WL 5194679, 199 L. Ed. 2d 350 (2017).
If the law is “unsettled,” then the District Court is free to do what it thinks makes the best
sense of the law. If we are free, then we should allocate attacks on methods of execution to §
1983 litigation. Allowing the same substantive constitutional claim to be made in both habeas
and § 1983 in litigation pending by the same death row inmate at the same time simply makes no
sense. It complicates judicial management of the cases and provides no different ultimate relief
to the inmate. Of course, as an interim result, it delays cases by complicating them, and capital
litigants have a well-recognized motive for delay.
Aside from his constitutional claims made in Grounds XV, XVI, and XVII, Turner makes
a “fundamental defect” statutory claim in Ground XVIII. Turner asserts Campbell should not be
followed as to that claim because Campbell relies on Glossip and that case considered only
Eighth Amendment claims (Objections, ECF No. 305, PageID 11888-89). Although Campbell
does not expressly discuss this statutory claim, Campbell made the same claim in his Petition and
the Sixth Circuit dismissed it on the same basis as the constitutional claim, to wit, that method of
execution claims are not cognizable in habeas.
Having reconsidered the matter in light of the Objections, the Magistrate Judge again
respectfully recommends that the Motion to Dismiss be granted. This dismissal should, of
course, be without prejudice to Turner’s pursuit of the same substantive constitutional claims in
In re Lethal Injecvtion Protocol Litigation, Case No. 2:11-cv-1016.
December 27, 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
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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