McKnight v. Warden, Ohio State Penitentiary
DECISION and ORDER affirming Magistrate Judge Decision. Accordingly, the Magistrate Judges denial of Petitioners proposed Hurst amendment and of his ancillary motion for authorization to appear in state court to present such a claim is AFFIRMED. Signed by Judge Susan J. Dlott on 4/27/17. (wam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
Case No. 2:09-cv-059
District Judge Susan J. Dlott
Magistrate Judge Michael R. Merz
-vsDAVID BOBBY, Warden,
DECISION AND ORDER AFFIRMING MAGISTRATE JUDGE
This capital habeas corpus case is before the Court on Petitioner’s Appeals to the District
Court (ECF Nos. 236, 238) from the Magistrate Judge’s Decision and Order Denying Motion to
Amend (ECF No. 222) and his order denying authorization to appear in ancillary state court
litigation (ECF No. 220). The Warden has filed a timely Response to the appeals (ECF Nos.
242, 245). On recommittal, the Magistrate Judge has filed Supplemental Memoranda on the
questions presented (ECF Nos. 234, 235).
Petitioner’s objection that a motion to amend under Fed. R. Civ. P. 15 is a “dispositive”
motion on which a Magistrate Judge may only file a report and recommended disposition is
overruled. This Court adopts the reasoning of the Magistrate Judge in this regard and concurs
with the decision of Chief Judge Sargus to the same effect in Monroe v. Houk, No. 2:07-cv-258,
2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016).
However, the Court agrees with the Petitioner and the Magistrate Judge that, because the
questions involved are all questions of law, Petitioner is entitled to de novo review under Fed. R.
Civ. P. 72(a).
The Motion to Amend before the Court sought to add a ground for relief under Hurst v.
Florida, 136 S. Ct. 616 (2016), claiming that Ohio’s capital sentencing scheme under which
Petitioner was sentenced is unconstitutional on the same basis as the Florida scheme held
unconstitutional in Hurst (ECF No. 215). The general standard for considering a motion to
amend under Fed. R. Civ. P. 15 is set forth in Foman v. Davis, 371 U.S. 178 (1962), and
provides generally that motions to amend should be liberally granted unless the amendment
would be futile.
The Magistrate Judge here applied that standard and concluded that the
proposed Hurst claim would be futile because Ohio’s capital sentencing scheme is materially
different from Florida’s and Hurst does not apply retroactively to cases on collateral review.
The Court agrees with the Magistrate Judge that the correct reading of Hurst is that the
relative weight of aggravating circumstances and mitigating factors in a capital case is a question
of fact which must be decided in the first instance by the trial jury1 acting unanimously and
deciding the question beyond a reasonable doubt. That is to say, that issue is legally analogous
to an element in the Apprendi line of cases.
However, the Court also agrees with the Magistrate Judge that Ohio’s capital sentencing
scheme is materially different from Florida’s in that it requires, as Florida’s did not before Hurst,
that the trial jury weigh the evidence and conclude unanimously and beyond a reasonable doubt
that aggravating circumstances outweigh the mitigating factors. Petitioner is correct that after
the jury renders that verdict, under Ohio law the trial judge must independently perform that
weighing function and also conclude that the aggravating circumstances outweigh the mitigating
factors. But, in contrast to Florida before Hurst, an Ohio trial judge never reaches that stage
unless the jury has previously returned the required verdict.
1 Nothing in Hurst casts doubt on the validity of that portion of Ohio’s capital scheme which allows a defendant to waive a jury and be tried by a panel of three judges.
Apart from the material differences between the Florida and Ohio capital sentencing
schemes, the Magistrate Judge also concluded that Hurst does not apply to cases such as this one
pending on collateral review, relying on analysis under Teague v. Lane, 489 U.S. 288 (1989).
Petitioner objects that this “finding . . . is clearly erroneous.” (ECF No. 236, PageID 16931).
This objection betrays Petitioner’s confusion about the standard of review. Magistrate
Judge findings of fact are reviewed under the clearly erroneous standard, but conclusions of law
are reviewed under a “contrary to law” standard, to wit, de novo. Magistrate Judge Merz’s
conclusion that Hurst is not retroactive under Teague is a pure conclusion of law which this
Court reviews de novo.
On de novo re view, the Court affirms this conclusion of law by the Magistrate Judge.
Petitioner is correct that the Supreme Court has held that state courts are not constitutionally
bound to employ the Teague retroactivity analysis (Objections, ECF No. 236, citing Danforth v.
Minnesota, 552 U.S. 264 (2008).
Whatever the state courts do about applying Hurst
retroactively under their own state retroactivity doctrine, this Court is bound to apply Teague in
its own cases. Petitioner offers no analysis of Teague itself which suggests the Magistrate
Judge’s Teague analysis is contrary to law.
Accordingly, the Magistrate Judge’s denial of Petitioner’s proposed Hurst amendment
and of his ancillary motion for authorization to appear in state court to present such a claim is
April 27, 2017.
S/Susan J. Dlott_________________
Susan J. Dlott
United States District Judge
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