McKnight v. Warden, Ohio State Penitentiary

Filing 237

DECISION AND ORDER - Petitioner's Motion for Leave to File an Amended Petition to Include Amended Lethal injection Grounds for Relief (ECF No. 230) is GRANTED. In lieu of the method of accomplishing the amendment proposed by McKnight, he shall file a Supplemental Petition not later than April 24, 2017, containing the proposed Grounds for Relief set forth in Exhibit 1 to the Motion (ECF No. 230-1). Signed by Magistrate Judge Michael R. Merz on 4/11/2017. (kpf) Modified on 4/12/2017 to change document type (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
This capital habeas corpus case is before the Court on Petitioner’s Motion for Leave to
File an Amended Petition to Include Amended Lethal injection Grounds for Relief (ECF No.
230). The Warden opposes the Motion (Response, ECF No. 231) and McKnight has filed a
Reply in support (ECF No. 233).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within a
Magistrate Judge’s decisional authority. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist.
LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.)

Procedural History

Petitioner Gregory McKnight was indicted for the murders of Gregory Julious and Emily
Murray; as to Ms. Murray, the charge was aggravated murder with capital specifications. After a
jury convicted him on four counts in the indictment, he was sentenced to be executed. Because

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the crimes were committed after January 1, 1995, he appealed directly to the Ohio Supreme
Court which affirmed the convictions and sentence. State v. McKnight, 107 Ohio St. 3d 101
(2005). McKnight filed a petition for post-conviction relief under Ohio Revised Code § 2953.21
which was denied by the Vinton County Common Pleas Court. The denial was affirmed on
appeal. State v. McKnight, 2008 Ohio App. LEXIS 2076 (4th Dist. May 19, 2008), and the Ohio
Supreme Court declined jurisdiction over a further appeal. State v. McKnight, 119 Ohio St. 3d
1487 (2008). McKnight then filed his Petition in this Court on October 14, 2009 (ECF No. 9).
On February 23, 2011, McKnight, with court permission, amended his Thirty-Third Ground for
Relief (ECF No. 38).
On March 8, 2012, McKnight moved to amend his Petition to add two Grounds for Relief
directed to Ohio’s lethal injection protocol:
FORTY-FIRST GROUND FOR RELIEF: Gregory McKnight’s
execution will violate the Eighth Amendment because Ohio’s
lethal injection protocol will result in cruel and unusual
punishment.
FORTY-SECOND GROUND FOR RELIEF: Gregory
McKnight’s execution will violate the Fourteenth Amendment
because Ohio’s lethal injection protocol will deprive him of equal
protection of the law.
(Motion, Doc. No. 60-1, Page ID 1741, 1743.) The Magistrate Judge granted that Motion (ECF
No. 68) and Chief Judge Dlott affirmed over the Warden’s Objections (ECF No. 92). The
Amended Petition including these Grounds for Relief was filed August 26, 2013 (ECF No. 127).
On December 19, 2013, McKnight moved to stay consideration of his lethal injection
claims because Ohio had adopted a new lethal injection protocol effective October 10, 2013,
which McKnight believed might render his then-pending lethal injection claims moot and require
a new amended petition (Motion, ECF No. 132, PageID 15916). McKnight’s counsel wrote:
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McKnight’s analogous claims[1] are newly ripe again. See Phillips,
No. 2:13-cv-791, Doc. No. 34, PageID 442. Furthermore, the new
execution protocol may give rise to additional habeas claims that
are newly ripe, but which did not exist at the time McKnight filed
his most recent habeas petition. In order to properly litigate and
preserve his newly ripe lethal-injection habeas claims, McKnight
will need to file a motion for leave to file an amended petition. See
Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007); Stewart v.
Martinez-Villareal¸ 523 U.S. 637, 643 (1998).
(ECF No. 132, PageID 15916). McKnight’s counsel hypothesized that his claims were not yet
really ripe because the State had not yet conducted an execution under the October 10, 2013,
protocol. Id. There followed an extensive period of time (July 2, 2014 – November 10, 2015)
during which McKnight was considering whether to abandon this litigation. On April 1, 2016,
McKnight again sought a stay of these proceedings and a return to state court (ECF No. 202).
The Magistrate Judge denied that motion and Judge Dlott affirmed on appeal (ECF Nos. 210,
221). In the meantime McKnight moved to amend to add a claim under Hurst v. Florida, 136
S.Ct. 616 (2016)(ECF No. 215) which the Magistrate Judge denied (ECF No. 222). McKnight’s
appeal from the denial of that motion remains pending before District Judge Dlott.
The instant Motion was filed March 8, 2017, contemporaneously with motions to amend
in other capital habeas cases pending before the undersigned in which there was a history of
motions to amend, eventually leading to denials without prejudice to renewal not later than thirty
days after the mandate issued in the Stanley Adams habeas corpus case then pending before the
Sixth Circuit.

1

That is analogous to the claims made by Ronald Phillips whose habeas corpus petition was then pending before
District Judge Gregory Frost.

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Proposed Amended Lethal Injection Claims

McKnight proposes the following amended Grounds for Relief:
Forty-First 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.
Forty-Second 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.
Forty-Third Ground for Relief: DRC [Ohio Department of
Rehabilitation and Corrections] 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.
Forty-Fourth 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.
(ECF No. 230-1, PageID 16829, 16848, 16856, 16868.)
McKnight’s Motion focuses on the cognizability of his proposed claims in habeas corpus
in light of Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016)(Adams III). He notes that this Court
previously found his lethal injection claims could be pleaded in habeas under authority of Adams
v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)(Adams I).2

2

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), referred to herein as Adams I, Adams II, and Adams III
respectively.

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In Adams I the circuit court held, over Ohio’s objection, that a challenge to the method of
lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say,
availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of
action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add
lethal injection claims and indeed treated those claims as newly arising whenever Ohio’s lethal
injection protocol was amended. This reading informed the Magistrate Judge’s allowance of the
Amended Petition (ECF No. 68).
Then the Supreme Court appeared to call this Court’s practice into question with its
decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze [v. Rees, 533 U.S.
35 (2008)] decision in Hill v. McDonough, 547 U. S. 573, 126 S.
Ct. 2096, 165 L. Ed. 2d 44 (2006), but they misread that decision.
The portion of the opinion in Hill on which they rely concerned a
question of civil procedure, not a substantive Eighth Amendment
question. In Hill, the issue was whether a challenge to a method of
execution must be brought by means of an application for a writ of
habeas corpus or a civil action under §1983. Id., at 576, 126 S. Ct.
2096, 165 L. Ed. 2d 44. We held 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 579-580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.

135 S.Ct. at 2738(emphasis added).

Changing course, this Court concluded the “must be

brought” language precluded what it had been doing under Adams I. Then, in Adams II as
clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I:
Adams challenged the constitutionality of lethal injection on direct
appeal, asserting that "[d]eath by lethal injection constitutes cruel
and unusual punishment and denies due process under the state and
federal constitutions." The Ohio Supreme Court rejected this
claim, explaining it had "previously rejected similar arguments."
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Adams, 817 N.E.2d at 56 (citing State v. Carter, 89 Ohio St. 3d
593, 2000 Ohio 172, 734 N.E.2d 345, 358 (Ohio 2000)). Adams
again challenged the constitutionality of execution by lethal
injection in his federal habeas corpus petition. The district court
denied this claim, noting that "lethal injection is the law of the
republic. No federal court has found the lethal injection protocol to
be unconstitutional." Adams, 484 F. Supp. 2d at 796 (citation
omitted).
As an initial matter, we note our recent holding that lethal injection
does not violate the Constitution. See Scott v. Houk, 760 F.3d 497,
512 (6th Cir. 2014) ("Simply put, lethal injection does not violate
the Constitution per se . . . ."). In Scott, a similar challenge to the
implementation of lethal injection was raised, as a panel of this
court observed that "Scott's petition alleges that lethal injection
'inflicts torturous, gratuitous and inhumane pain, suffering and
anguish upon the person executed.'" Id. at 511. Accordingly, the
Ohio Supreme Court's denial of Adams's challenge to the
constitutionality of lethal injection as a means of execution did not
constitute an unreasonable application of Supreme Court
precedent.
The Supreme Court's decision in Glossip does not alter our
precedent. Glossip concerned a 42 U.S.C. § 1983 action
challenging Oklahoma's execution protocol. . . .
Lastly, notwithstanding the warden's observation that a method-ofexecution challenge can only be brought in a § 1983 action under
Hill v. McDonough, 547 U.S. 573 (2006), Adams can bring this
claim in a § 2254 proceeding. As the warden submits, Glossip
stated that Hill "held 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." Glossip,
135 S. Ct. at 2738. As we observed in Adams, 644 F.3d at 483,
however, Adams's case is distinguishable from Hill because
Adams argues that lethal injection cannot be administered in a
constitutional manner, and his claim "could render his death
sentence effectively invalid." Cf. Hill, 547 U.S. at 580. Our
decision in Adams is consistent with the Supreme Court's
reasoning in Nelson, which suggested that, under a statutory
regime similar to Ohio's, "a constitutional challenge seeking to
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permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself." 541 U.S. at 644. Thus,
to the extent that Adams challenges the constitutionality of lethal
injection in general and not a particular lethal-injection protocol,
his claim is cognizable in habeas. Adams, 644 F.3d at 483.
However, as the Supreme Court observed in Glossip, a challenge
to a particular procedure that concedes the possibility of an
acceptable alternative procedure is properly brought in a § 1983
action. Glossip, 135 S. Ct. at 2738.
Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th Cir. 2016), cert den. sub nom. Adams v. Jenkins,
137 S. Ct. 814, 196 L. Ed. 2d 602 (2017)(Adams III ). By denying certiorari, the Supreme Court
passed up a chance to clarify the meaning of Glossip as it relates to bringing lethal injection
claims in habeas corpus.
As this Magistrate Judge understands it, the current state of the law in the Sixth Circuit
after Adams III is that habeas corpus will lie to challenge “the constitutionality of lethal injection
in general” to wit, that “lethal injection cannot be administered in a constitutional manner, and
[that] claim ‘could render [Petitioner’s] death sentence effectively invalid.’” Adams III, quoting
Hill v. McDonough, 547 U.S. at 580.
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. 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
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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 Research 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
undue delay or prejudice to the opposing party, or would be futile.”). In Brooks v. Celeste, 39
F.3d 125 (6th Cir. 1994), the court repeated and explicated the Foman factors, noting that
“[d]elay by itself is not a sufficient reason to deny a motion to amend. Notice and substantial
prejudice to the opposing party are critical factors in determining whether an amendment should
be granted. Id. at 130, quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir.
1989). These considerations apply as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d
320, 341 (6th Cir. 1998), quoting Brooks, supra.

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The Warden opposes the Motion to Amend on the ground that the amendment would be
futile because the “as-applied lethal injection claims McKnight seeks to add are non-cognizable
in habeas.” (Response, ECF No. 231, PageID 16898, citing Adams III , Henderson v. Morgan,
No. 1:12-cv-703, 2015 U.S. Dist. LEXIS 134120 (S.D. Ohio Sept. 30, 2015)(Frost, D.J.), and In
re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017).
McKnight’s Reply is persuasive. Adams III supports the cognizability of McKnight’s
four new proposed lethal injection claims.

Each of them is a general claim of the type

recognized as valid in Adams III : “no matter what protocol it uses, Ohio cannot constitutionally
execute me under the Eighth and Fourteenth Amendments and under the Supremacy Clause.”
These are not per se claims of the form “lethal injection is always and everywhere
unconstitutional.” Such a claim would be precluded by precedent.
While Henderson v. Morgan supports the Warden’s position, it must be treated as
abrogated by Adams III. It was written during the period, mentioned above, when both Judge
Frost and the undersigned believed Glossip had abrogated Adams I. We now know that is not so.
Landrum3 also supports McKnight’s position on cognizability.
The Warden’s assertion that the proposed Grounds for Relief fail to state a claim on
which habeas corpus relief can be granted is overruled on the basis of Adams III .

Statute of Limitations

3

As the citation shows, Landrum is an unpublished and unreported order of the Sixth Circuit whose precedential
value is questionable under Sixth Circuit rules. Because it has been cited so frequently in this Court since it was
handed down, the Court has urged counsel to jointly move the circuit court to publish it.

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The Warden also asserts the proposed Grounds for Relief are barred by the AEDPA’s
one-year statute of limitations because McKnight’s conviction “has been final for more than a
decade.” (ECF No. 231, PageID 16898).
McKnight replies:
A newly adopted protocol and evidence obtained for the first time
created new factual predicates for his claims and triggered new
limitations periods over the past several years. A lethal injection
invalidity claim—as distinguished from a per se challenge to lethal
injection as a manner of execution—will necessarily encompass
the facts relevant to what the State intends to do under the current
execution protocol in addition to what it has done under past
execution protocols.
***
Adams II and Adams III confirm McKnight’s argument that newly
discovered facts related to a particular execution protocol (or any
other newly arising factual predicates) require amendment of his
lethal-injection grounds for relief and thus are not in violation of
the statute of limitations. See, Adams III, 826 F. 3d at 320-21.
The Ohio Department of Corrections (DRC) adopted a new
execution protocol on October 7, 2016. (Execution Protocol, 01COM-11, October 7, 2016). The current protocol gives rise to new
claims arising from differences between it and the twice[]superseded protocol underlying McKnight’s prior claims, as well
as making McKnight’s prior claims newly ripe in accordance with
the new protocol. McKnight’s proposed claims are not filed
beyond the habeas statute of limitations.
(ECF No. 233, PageID 16908-09.)

Newly Discovered Facts versus Newly Arising Claims

10

In the Reply Memorandum, McKnight’s counsel repeatedly assert that new facts have
occurred since his death sentence was imposed and since he first filed in this Court which are
relevant to proving his general lethal injection invalidity claims. The Court agrees. Just as an
example, on the claim “Ohio can never constitutionally execute me by lethal injection,” evidence
of Ohio’s attempts, including constitutional successes and constitutional failures, to execute
others by means of lethal injection that have happened since this case was filed are relevant to
prove the general claim which Adams III says McKnight can bring in habeas.
However, the affirmance in Adams III of the cognizability decision made in Adams I does
not logically imply that all the procedural incidents of the Adams I period are now reinstated.
The fact that a general lethal injection invalidity claim can be pleaded in habeas does not imply
that a new general lethal injection invalidity claim arises every time the protocol changes or
some other relevant facts occur. If the claim is truly general – Ohio can never constitutionally
execute me by lethal injection no matter what changes it makes in the protocol or administration
of the protocol – that claim arises when a person is sentenced to be executed by lethal injection
in Ohio. Adams III plainly implies that later-discovered or indeed later-occurring evidence may
be introduced in habeas to prove the general invalidity claim.4 But it does not imply that a new
general invalidity claim arises every time a relevant fact changes.
As this Court has commented elsewhere, the strategy of the death penalty petitioners’ bar
for a number of years (at least since Adams I) appears to have been to have simultaneously
pending § 1983 and habeas litigation raising the substantively same lethal injection invalidity
claims. Raglin v. Mitchell, 2017 U.S. Dist. LEXIS 54458 *26 (S.D. Ohio Apr. 10, 2017).
Having prevailed on the substantive front,5 they have pushed the Court to eliminate the

4
5

The circuit court does not explain how this conclusion squares with Cullen v. Pinholster, 563 U.S. 170 (2011).
Adams III acknowledges the decision in Glossip that a § 1983 capital plaintiff must plead an available alternative

11

procedural differences between the two causes. But while Adams III supports the substantive
parallels, it does not eliminate the procedural differences.

Death row inmates who have

completed one round of habeas corpus proceedings must still pass the second-or-successive
barrier before bringing new habeas cases. And nothing in Adams III implies that the statute of
limitations begins to run anew every time some relevant fact occurs. To interpret the statute in
that way would be essentially to eliminate the statute.
The Sixth Circuit has held that the statute of limitations for § 1983 lethal injection claims
begins to run anew every time the protocol is amended. Cooey (Beuke) v. Strickland, 604 F.3d
939, 942 (6th Cir. 2010). During the period when Adams I was the governing decision, this Court
was extending that holding to habeas, but without a good legal basis for doing so. Section 1983
litigation, at least in the capital context, is forward looking. Thus every time the State adopts a
new arguably unconstitutional practice, on death row or elsewhere, the two-year limitations
period for challenging that new practice begins.
The general law, made outside the death penalty context, is that in all constitutional tort
actions, the court borrows the statute of limitations for personal torts from the State where the
claim arose. Hardin v. Straub, 490 U.S. 536 (1989). The statute of limitations under Ohio law
for actions brought pursuant to 42 U.S.C. § 1983 is two years. Ohio Revised Code § 2305.10.
Nadra v. Mbah, 119 Ohio St. 3d 305 (2008); Banks v. City of Whitehall, 344 F.3d 550, 551 (6th
Cir. 2003), citing Browning v. Pendleton, 869 F.2d 989 (6th Cir. 1989)(en banc). The statute of
limitations begins to run "when the plaintiff knows or has reason to know of the injury which is
the basis of his action." Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir. 2003),
citing Kuhnle Bros., Inc. v. County of Geauga, 103 F.3d 516 (6th Cir. 1997), quoting Sevier v.
Turner, 742 F.2d 262, 273 (6th Cir. 1984). In determining when the cause of action accrues in §
to the execution method he attacks.

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1983 cases, the Sixth Circuit looks to the event that should have alerted the typical lay person to
protect his or her rights. Id. citing Dixon v. Anderson, 928 F.2d 212, 215 (6th Cir. 1991). See
also Bell v. Ohio State University, 351 F.3d 240, 247 (6th Cir. 2003); Hughes v. Vanderbilt
University, 215 F.3d 540, 548 (6th Cir. 2000).
While this logic is fully applicable to § 1983 actions, the statute of limitations for habeas
cases, 28 U.S.C. § 2244(b), is completely a creature of federal law. In habeas in general, the
cause of action arises from the imposition of an unconstitutional detention; under § 2254 from
detention pursuant to an unconstitutional state court judgment. The cause of action arises when
the sentence is imposed. Of course it does not become final until some later date for purposes of
starting the running of the statute of limitations. Neither McKnight nor the other death row
inmates with whom he shares counsel has argued how their “newly arising claims” theory fits
within 28 U.S.C. § 2244(b).
Thus this Court declines to accept the rule that a habeas corpus lethal injection invalidity
claim “arises” for limitations purposes every time the Ohio protocol is amended or some other
fact relevant to the claim occurs.
If McKnight’s lethal injection invalidity claim did not arise when Ohio adopted the most
recent protocol on October 7, 2016, when did it arise? Lethal injection was already the exclusive
method of execution in Ohio when McKnight filed his original Petition here in 2009. His ThirtyEighth Ground for Relief reads:
THE PRACTICE OF EXECUTION BY LETHAL INJECTION
VIOLATES GREGORY MCKNIGHT’S RIGHT TO BE FREE
FROM CRUEL AND UNUSUAL PUNISHMENT UNDER THE
EIGHTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.
(Petition, ECF No. 9, PageID 274.) McKnight makes no argument about how his presently
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proposed amendments could relate back to the initial filing under Fed. R. Civ. P. 15, presumably
because of his reliance on the “newly arising” theory.
In Adams III and previously, the Sixth Circuit has held that evidence obtained by a death
row inmate in a parallel § 1983 action can be used in support of a habeas corpus lethal injection
invalidity claim. See Scott v. Houk, 760 F.3d 497 (6th Cir. 2014); accord, Frazier v. Jenkins, 770
F.3d 485 (6th Cir. 2014). Of course, McKnight is not a plaintiff in In re: Ohio Injection Protocol
Litig., Case No. 2:11-cv-1016, although many of the death row inmates represented by his
counsel are. The method of introducing in this case evidence gained by others in that case has
yet to be addressed.
Having rejected McKnight’s “newly arising” theory of the statute of limitations, the
Magistrate Judge believes McKnight, as well as other capital habeas petitioners, is entitled to
equitable consideration of his situation. The state of the law on this point has been confused
during the time McKnight’s case has been pending. Until Adams I it was reasonable for counsel
to understand that method of execution claims had to be brought in § 1983 proceedings.
Following Adams I, this Court accepted the extension of the logic of that case and of Cooey v.
Strickland, 604 F.3d 939 (6th Cir. 2010), that not only did new § 1983 claims arise whenever the
protocol was amended, but so did habeas claims on the same substantive basis. On that basis,
counsel could reasonably have concluded they had a year from adoption of a new protocol to
amend a client’s habeas petition to add claims “newly arising” under that new protocol.
Although this Court has now concluded on the basis of Adams III and Landrum that the
cognizability, second-or-successive, and limitations questions must be kept separate, capital
habeas petitioners should not be penalized for following the Court’s lead during that period
between Adams I and Adams III.

The State of Ohio has not claimed any prejudice would result

14

from this approach since it will have to litigate the lethal injection invalidity question in the §
1983 case in any event.

Conclusion

For the reasons set forth above, McKnight’s Motion for Leave to File an Amended
Petition (ECF No. 230) is GRANTED. In lieu of the method of accomplishing the amendment
proposed by McKnight, he shall file a Supplemental Petition not later than April 24, 2017,
containing the proposed Grounds for Relief set forth in Exhibit 1 to the Motion (ECF No. 230-1).
April 11, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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