Conway, III v. Warden Houk
Filing
119
OPINION AND ORDER denying 99 Motion to Dismiss for Failure to State a Claim. Signed by Judge Algenon L. Marbley on 9/13/2013. (cw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES T. CONWAY, III,
Petitioner,
v.
MARC C. HOUK, Warden,
Case No. 2:07-cv-947
JUDGE ALGENON L. MARBLEY
Magistrate Judge Norah McCann King
Respondent.
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court on
Respondent’s Motion to Dismiss Lethal Injection Claims (ECF No. 99), Petitioner’s Response
(ECF No. 104), and Respondent’s Reply (ECF No. 107).
On July 16, 2012, this Court issued an Opinion and Order granting Petitioner leave to
amend his Petition to add grounds nineteen and twenty. Those grounds raise Eighth and
Fourteenth Amendment challenges, respectively, to Ohio’s execution policy, procedures, and
practices. Pursuant to the Court’s Opinion and Order, Petitioner filed his Amended Petition on
August 15, 2012 (ECF No. 95) and Respondent filed an Amended Return of Writ on September
21, 2012 (ECF No. 100).
Respondent also filed a Fed. R. Civ. P. 12(b)(6) Motion to Dismiss Petitioner’s claims.
(ECF No. 99.) Respondent asserts that Petitioner’s claims not only are non-cognizable in habeas
corpus but also are time-barred under 28 U.S.C. § 2244(d).
Petitioner counters that “[t]he Court has already decided both issues adversely to the
Warden in this litigation.” (ECF No. 104, at PAGEID #: 6379.) Petitioner proceeds, in the event
this Court should determine that it had not already addressed these issues, to offer reasons why
Respondent’s arguments are not supported by the facts or the law. The Court need not address
the latter because Petitioner is correct on the former.
In its July 16, 2012 Opinion and Order granting Petitioner leave to add grounds nineteen
and twenty, this Court expressly determined that Petitioner’s claims were cognizable in habeas
corpus and were not barred by the statute of limitations set forth in 28 U.S.C. § 2244(d).
Nothing about the various arguments raised by Petitioner in an effort to counter Respondent’s
motion to dismiss persuades this Court of a need to revisit issues it has already expressly
determined. The Court is bolstered in its decision by the fact that multiple District Judges within
the Southern District of Ohio and Northern District of Ohio alike have consistently ruled that
such Eighth Amendment and Fourteenth Amendment claims sound in habeas corpus and are not
time-barred. See, e.g., Sheppard v. Warden, Case No. 1:12-cv-198, ECF No. 35 (Frost, J.);
Lindsey v. Bradshaw, Case No. 1:03-cv-702, ECF No. 90 (Sargus, J.) ; Phillips v. Warden, 2:13cv-791, ECF No. 15 (Lioi, J.).
For the foregoing reasons, Respondent’s Motion to Dismiss (ECF No. 99) is DENIED.
IT IS SO ORDERED.
DATED: September 11, 2013
s/Algenon L. Marbley
ALGENON L. MARBLEY
United States District Judge
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