McKnight v. Warden, Ohio State Penitentiary

Filing 222

DECISION AND ORDER DENYING MOTION TO AMEND 215 . Signed by Magistrate Judge Michael R. Merz on 2/15/2017. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
GREGORY McKNIGHT
:
Petitioner,

Case No. 2:09-cv-059
:

District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz

-vsDAVID BOBBY, Warden,
:
Respondent.

DECISION AND ORDER DENYING MOTION TO AMEND
This capital habeas corpus case is before the Court on Petitioner’s Motion for Leave to File
an Amended Petition to Address Newly Ripe Claim under Hurst v. Florida [136 S. Ct. 616 (2016)]
(ECF No. 215) and a companion Motion for Authorization to Appear in Ancillary State Court
Litigation (ECF No. 216). The Warden has filed a combined Opposition (ECF No. 217) and
McKnight has filed a combined Reply in Support (ECF No. 218). The Motion for Authorization
will be dealt with separately after additional briefing (ECF No. 220).
A motion to amend a habeas petition is a pretrial non-dispositive motion which Magistrate
Judges are authorized to decide in the first instance. 28 U.S.C. § 636(b)(1)(A). Monroe v. Houk,
No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.)
A pending habeas corpus petition may be amended “as provided in the rules of procedure
applicable to civil actions.” 28 U.S.C. § 2242. 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.

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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. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
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 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); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio 2013)(Rose,
J.); William F. Shea, LLC v. Bonutti Reseach Inc., 2011 U.S. Dist. LEXIS 39794, *28 (S.D. Ohio
March 31, 2011) (Frost, J.).
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). ); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1
(Ovington, M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
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undue delay or prejudice to the opposing party, or would be futile.”). These considerations apply
as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998), quoting
Brooks v. Celeste, 39 F.3d 125, 130 (6th Cir. 1994).

The Parties’ Positions

McKnight seeks to add the following Ground for Relief to his case:
Gregory McKnight’s Sixth, Eighth, and Fourteenth Amendment
Rights were violated because the jury’s penalty phase verdict and
death recommendation were only advisory and the judge
independently made the conclusive findings and determinations that
McKnight be sentenced to death.
(ECF No. 215-1, PageID 16649.) He asserts that Hurst renders Ohio’s capital sentencing scheme
unconstitutional as it was applied to him (Motion, ECF No. 215, PageID 16641). He argues that
the trial jury did not make the findings required to be made by a capital jury under Hurst.
Although not mentioned in the proposed ground for relief, McKnight also asserts in his Motion
that:
In addition, in McKnight’s case the Supreme Court of Ohio found
error in the trial court’s merger of statutory aggravating
circumstances but “cured” that error by independently reweighing
the proper aggravating circumstances against the mitigating factors.
Hurst makes clear that this type of appellate reweighing violates the
Sixth Amendment. A sentence of death must be premised upon
factual findings made by the jury – not the trial judge – and not
appellate courts.
Id. at PageID 16643.

Apparently McKnight believes Hurst also renders unconstitutional

appellate reweighing of aggravating and mitigating circumstances. For relief, McKnight requests
“a new, fair, penalty phase at which the jury considers the proper statutory aggravating

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circumstances, decides whether McKnight demonstrated the existence of any mitigating factors,
the weight to be given to those mitigating factors, and whether the statutory aggravating
circumstances outweigh those mitigating factors.” Id. at PageID 16646.
The Warden is opposed on the ground that Ohio’s capital sentencing scheme does not
violate the Constitution as interpreted in Hurst. (Opposition, ECF No. 217).

Analysis

Hurst Does Not Invalidate Ohio’s Capital Sentencing Scheme

In Hurst, supra, the Supreme Court was called upon to decide whether its prior decisions
upholding Florida’s capital punishment scheme in Spaziano v. Florida, 468 U.S. 447 (1984) and
Hildwin v. Florida, 490 U.S. 638 (1989), survived its holding in Ring v. Arizona, 536 U.S. 584
(2002). The Florida Supreme Court had relied on Spaziano and Hildwin, but the United States
Supreme Court expressly overruled those two decisions. 136 S. Ct. at 623. In Ring the Court
had applied the Apprendi line of cases to conclude “that Arizona’s capital sentencing scheme
violated Apprendi’s rule because the State allowed a judge to find facts necessary to sentence a
defendant to death.” Hurst, 136 S. Ct. at 621. In Arizona, “a judge could sentence Ring to death
only after independently [of the jury] finding at least one aggravating circumstance.” Id., quoting
Ring, 536 U.S. at 591. Had Ring’s judge not engaged in the independent factfinding of an
aggravating circumstance, the maximum sentence Ring could have received would have been a
life sentence. Hurst, 136 S.Ct. at 620. Justice Sotomayor continued:

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The analysis the Ring Court applied to Arizona’s sentencing scheme
applies equally to Florida’s. Like Arizona at the time of Ring,
Florida does not require the jury to make the critical findings
necessary to impose the death penalty. Rather, Florida requires a
judge to find these facts. Fla. Stat. §921.141(3). Although Florida
incorporates an advisory jury verdict that Arizona lacked, we have
previously made clear that this distinction is immaterial: “It is true
that in Florida the jury recommends a sentence, but it does not make
specific factual findings with regard to the existence of mitigating or
aggravating circumstances and its recommendation is not binding
on the trial judge. A Florida trial court no more has the assistance of
a jury’s findings of fact with respect to sentencing issues than does a
trial judge in Arizona.” Walton v. Arizona, 497 U.S. 639, 648, 110
S. Ct. 3047, 111 L. Ed. 2d 511 (1990); accord, State v. Steele, 921
So. 2d 538, 546 (Fla. 2005) (“[T]he trial court alone must make
detailed findings about the existence and weight of aggravating
circumstances; it has no jury findings on which to rely”).
Id. at 621-22.
The Warden reads Hurst narrowly as just overruling Spaziano and Hildwin and allowing a
capital sentencing scheme where the jury merely finds the facts necessary to make a defendant
death eligible, e.g., the existence of an aggravating circumstance (ECF No. 217, PageID
16667-69). In contrast, Petitioner asserts that Hurst requires the trial jury to “consider the proper
statutory aggravating circumstances, [and] decide whether McKnight demonstrated the existence
of any mitigating factors, the weight to be given to those mitigating factors, and whether the
statutory aggravating circumstances outweigh those mitigating factors.” (Motion, ECF No. 215,
PageID 16646.) McKnight is unclear whether these findings have to be by special verdict or
whether some form of general verdict is constitutional.
This Court believes the correct reading of Hurst is that the relative weight of aggravating
circumstances and mitigating factors is a question of fact akin to an element under the Apprendi
line of cases, that is, a fact necessary to be found before a particular punishment can be imposed,
e.g., a mandatory minimum sentence as in Alleyne v. United States. 570 U.S. ___, 133 S. Ct. 2151,
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186 L. Ed. 2d 314 (2013).
Hurst, however, does not invalidate Ohio’s capital sentencing scheme because Ohio’s
scheme is materially different from Florida’s. At the time of McKnight’s trial, Ohio law required
that, before a sentence of death could be imposed, the jury must find, beyond a reasonable doubt,
that the aggravating circumstances outweighed the mitigating factors. That is to say, every fact
necessary for imposition of a death sentence, including the fact that the proved aggravating
circumstances outweigh the mitigating factors, had to be proved to the jury beyond a reasonable
doubt. The trial jury in this case was instructed:
If all twelve of you find that the State of Ohio proved beyond a
reasonable doubt * * * that the aggravating circumstance * * * is
sufficient to outweigh the mitigating factors in this case, then it will
be your duty to decide that the sentence of death shall be imposed on
Gregory B. McKnight.
If you find that the State of Ohio has failed to prove beyond a
reasonable doubt that the aggravating circumstance Gregory B.
McKnight was guilty of committing is sufficient to outweigh the
mitigating facts present in this case, then it will be your duty to
decide which of the * * * life sentence alternatives should be
imposed[.] * * * “You shall recommend the sentence of death if you
unanimously, that's all twelve, find by proof beyond a reasonable
doubt that the aggravating circumstances outweigh the mitigating
facts.
State v. McKnight, 107 Ohio St. 3d 101, ¶¶ 264-65 (2005).

In Ohio, unlike Florida, the trial

judge could not find an aggravating circumstance the jury had not already found beyond a
reasonable doubt in the culpability phase of the capital trial.
It is true, of course, that the Ohio trial judge has to weigh the aggravating circumstances
against the mitigating factors and that weighing is independent of the jury’s weighing in the sense
that the judge must do it himself or herself. But that weighing is, so to speak, on top of the jury’s
weighing: if the jury does not find the aggravating circumstances outweigh the mitigating
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factors, the judge cannot overrule that finding.
Nothing in the United States Constitution forbids a State from giving a defendant the extra
protection from a capital sentence that Ohio provides. The protection is parallel to that provided
by a motion for judgment of acquittal: a judge can acquit even if a jury has convicted if the judge
determines the evidence is insufficient. Likewise, in Ohio’s death penalty scheme, a judge may
conclude that the aggravating circumstances do not outweigh the mitigating factors in a capital
case and may sentence a defendant to a life term despite the jury’s finding on relative weight and
recommendation of death.
Hurst does not mandate jury sentencing in capital cases, the position Justice Breyer
believes the Eighth Amendment requires. Hurst, supra, at 624 (Breyer, J., concurring in the
judgment). It requires only that the jury take the penultimate step: make the necessary factual
finding that the aggravating circumstances outweigh the mitigating factors.
Because Hurst does not invalidate Ohio’s capital sentencing scheme, the proposed
amendment would be futile.

Hurst Does Not Apply to Cases on Collateral Review

Subject to two narrow exceptions, a case that is decided after a defendant's conviction and
sentence become final may not provide the basis for federal habeas relief if it announces a new
rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague v.
Lane, 489 U.S. 288 (1989). “Two exceptions to the Teague rule, however, permit the retroactive
application of a new rule whenever: 1) the rule places certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe or otherwise prohibits
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imposition of a certain type of punishment for a class of defendants because of their status or
offense; or 2) the rule announces a new “watershed” rule of criminal procedure implicating the
fundamental fairness and accuracy of the criminal proceeding.” In re Carl Green, 144 F.3d 384,
386 (6th Cir. 1998), citing Caspari v. Bohlen, 510 U.S. 383, 396 (1994).
A Supreme Court decision announces a new rule where the issue addressed was susceptible
to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-15 (1990). A new
rule is “a rule that ... was not dictated by precedent existing at the time the defendant’s conviction
became final.” Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288,
301 (1989)(emphasis in original). For instance, the rule in Crawford v. Washington, 541 U.S. 36
(2004), is a new rule, but does not fall within the “watershed” exception to Teague. Whorton v.
Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the date Whorton was decided, the only
rule the Supreme Court had identified as qualifying under the “watershed” exception is that
adopted in Gideon v. Wainwright, 372 U.S. 335 (1963).
Whether a Supreme Court decision applies retroactively should be decided by the district
court in the first instance. Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004).
The rule announced in Hurst is plainly new within the meaning of Teague. It was not
dictated by precedent. Indeed Hildwin and Spaziano, overruled by Hurst, were the relevant
precedents. Hurst does not create a new substantive rule. Compare Atkins v. Virginia, 536 U.S.
304 (2002)(the intellectually disabled may not be executed), and Johnson v. United States, 135 S.
Ct. 2551 (2015)(declaring unconstitutionally vague the “residual” clause of the Armed Career
Criminal Act). Nor is it a watershed new rule of procedure. See Beard v. Banks, 542 U.S. 406,
415-16 (2004)(Gideon v. Wainwright might qualify under Teague’s second exception, but Batson
v Kentucky, for example, would not).
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Petitioner argues he has good cause to amend in that the Florida and Delaware Supreme
Courts have held Hurst to be applicable retroactively (ECF No. 215, PageID 16643). But both of
those decisions were based on state law retroactivity doctrine. Nothing in Teague prohibits state
courts from giving retroactive effect, as a matter of state law, to new constitutional rules such as
Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Danforth v. Minnesota, 552 U.S. 264, 280
(2008).
Because Hurst does not apply to cases in which the conviction became final on direct
appeal before January 2016, it has no application here and the requested amendment would
therefore be futile.

Undue Delay

McKnight insists he has not acted in bad faith because his “request to amend is brought
within AEDPA’s one year statute of limitations.” (ECF No. 215, PageID 16644). The Motion to
Amend was filed January 11, 2017, on the eve of the anniversary of Hurst. The fact that an
amendment is filed within the statute of limitations does not per se prove it was filed without
undue delay. To suggest that seven such Hurst motions on this judge’s docket and more on the
dockets of other judges of this Court, all filed within hours of one another on the last day before the
statute ran, were all filed without “undue delay” tests the credulity of the Court.
In addition, McKnight moved on April 1, 2016, to stay these proceedings to allow
“exhaustion of his claims and evidence developed in federal habeas in the state courts of Ohio.”
(ECF No. 202, PageID 16444). Although that Motion was filed more than two months after
Hurst was decided, no mention was made of a Hurst claim. Judge Dlott has now denied that
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Motion as well (ECF No. 221). McKnight has offered no explanation for splitting his new claims
between two different motions to amend.
No finding on the undue delay factor is made in light of the rulings on futility.

Conclusion

For the foregoing reasons, the Motion to Amend is DENIED.

February 15, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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