McKnight v. Warden, Ohio State Penitentiary

Filing 261

REPORT AND RECOMMENDATIONS - This Court should follow Campbell and dismiss Grounds for Relief Forty-One, Forty- Two, Forty-Three, and Forty-Four. The Warden seeks dismissal with prejudice, but because the Court does not reach the substantive const itutional questions, dismissal should be without prejudice to their consideration in in a civil rights case under 42. U.S.C. § 1983. In other words, the fact that they are not cognizable in habeas does not mean they are without merit. re 257 . Objections to R&R due by 1/4/2018. Signed by Magistrate Judge Michael R. Merz on 12/21/17. (pb)

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.

REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
Lethal Injection Claims (ECF No. 257). Petitioner opposes the Motion (ECF No. 260) and the
time within which Respondent could have filed a reply in support has expired.
The focus of the Warden’s Motion is the four claims added by Supplemental Petition in
April 2017 which read as follows:
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 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.
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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. 241).
Respondent seeks dismissal of these four grounds with prejudice in light of In re
Campbell, 874 F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 2017 U.S.
LEXIS 6891 (Nov. 14, 2017). Petitioner opposes dismissal on the same bases that other capital
habeas petitioners have opposed dismissal of identical claims since Campbell was decided in late
October.

Analysis

In Nelson v. Campbell, 541 U.S. 637 (2004), the Supreme Court held that a method-ofexecution constitutional claim could be brought in a § 1983 case, over the objection of a number
of States that such claims could only be brought in habeas corpus. The Court adhered to that
view two years later in Hill v. McDonough, 547 U.S. 573 (2006). Shortly after Nelson was
decided, death row inmates in Ohio initiated method-of-execution litigation in this Court under
42 U.S.C. § 1983 in Cooey v. Taft, Case No. 2:04-cv-1156. As consolidated with other inmates’
claims, that case remains pending under the caption In re Ohio Execution Protocol Litig., Case
No. 2:11-cv-1016 (the “Protocol Case”.) The Protocol Case is very active litigation, having
garnered 748 filings and three preliminary injunction hearings since Ohio announced on October
3, 2016, its intention to resume executions. Although Petitioner is not a plaintiff in the Protocol
Case, nothing prevents him from intervening in that case or filing a separate § 1983 case seeking
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relief on the same substantive claims he has made in these four Grounds for Relief.
Civil rights litigation provides a plaintiff with many advantages over habeas corpus.
Section 1983 cases enjoy the full scope of federal civil discovery, whereas discovery in habeas
cases is only with court permission. In a civil rights case it is open to counsel to argue
constitutional claims de novo, whereas habeas is a backward-looking remedy concerned with the
validity of a judgment entered years earlier and judged by Supreme Court law as it stood when
the state courts decided the case. Civil rights litigants are entitled to present evidence, both on
preliminary injunction and at trial, whereas evidence-taking in habeas is constrained by 28
U.S.C. § 2254(e) and Cullen v. Pinholster, 563 U.S. 170 (2011).
Nevertheless, for the past six years the death penalty petitioners’ bar has been filing
substantively parallel constitutional claims in both § 1983 and habeas corpus. This practice has
been supported by decisions of the Sixth Circuit in the Stanley Adams capital habeas case from
the Northern District of Ohio. In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011)(Adams I) ,
the court held that a lethal-injection-invalidity claim could be brought in habeas, inverting the
holdings in Nelson and Hill. This Magistrate Judge and other judicial officers of this Court
faithfully followed Adams I until the Supreme Court decided Glossip v. Gross, 135 S.Ct. 2726
(2015).
In Glossip the Supreme Court interpreted its earlier decision in Hill and wrote:
We held [in Hill] 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 579580, 126 S.Ct. 2096, 165 L. Ed. 2d 44.
135 S.Ct. at 2738. This Magistrate Judge read Glossip as disapproving of what was permitted in
Adams I and other judicial officers agreed. District Judge Frost put the matter most succinctly.

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In Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011), the
Sixth Circuit held that method-of-execution challenges are
cognizable in habeas corpus. This Court and other courts within
this District have since relied on Adams in accepting the
proposition that method-of-execution claims properly sound in
habeas corpus. Glossip now undeniably upends that practice.
Henderson v. Warden, 136 F. Supp. 3d 847, 851 (S.D. Ohio 2015). Between the Glossip
decision in May 2015 and March 2016, this Magistrate Judge and other judges of this Court
declined to allow lethal injection claims in habeas.
However, the Adams case came back to the Sixth Circuit in March 2016 and the Adams
panel held the result in Adams I was not changed by Glossip. Adams v. Bradshaw, 826 F.3d 306
(6th Cir. 2016)(Adams III ), cert. denied sub. nom. Adams v. Jenkins, 137 S.Ct. 814, 196 L. Ed.
2d 60 (Jan. 17, 2017). After Adams III, this Court reversed course again and began allowing the
pleading of lethal injection invalidity claims in habeas. For example, in the Decision and Order
permitting the most recent amendments in this case, the undersigned wrote:
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).1
(Decision and Order, ECF No. 237, PageID 11546-47.)
Campbell, supra, takes us back to a literal reading of Glossip. In Campbell, the Sixth
Circuit analyzed Adams III, writing:
After Glossip was decided, the Adams case returned to this Court.
Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) (Adams III).
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There are three published opinions of the Sixth Circuit in Stanley Adams’ habeas corpus case: Adams v.
Bradshaw, 644 F.3d 481 (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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Adams III came on appeal after our remand to the district court
resulted in development of the facts. Id. at 309. The factual
development revealed that Adams was protesting the
"psychological toll" resulting from Ohio's recent changes to its
lethal-injection protocol—facts not presented in Adams II.2 Id. at
320. We immediately responded to this revelation by holding that
Adams "failed to present this claim to the state courts, nor did he
raise it in his habeas petition." Id. This failure, as a matter of law,
barred Adams from pursuing the claim in habeas. Id.; 28 U.S.C. §
2254(b); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L.
Ed. 2d 594 (1977).
Notwithstanding the procedural default, the panel proceeded to
speculate in dicta about the viability of a psychological-torment
claim. Adams III, 826 F.3d at 320. It ultimately found the claim
unsupported by the substantive law. Even then, the panel
proceeded to discuss—again in dicta—the holding of Adams II in
light of Glossip. Id. at 321. It reiterated that "Adams's case is
distinguishable from Hill [v. McDonough, 547 U.S. 573 (2006)]
because Adams argues that lethal injection cannot be administered
in a constitutional manner, and that his claim 'could render his
death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547
U.S. at 580). Therefore, "to the extent that [a petitioner] challenges
the constitutionality of lethal injection in general and not a lethal
injection protocol, his claim is cognizable in habeas." Id.
We think this dictum mischaracterizes both Adams II and Glossip.
And, of course, dictum in a prior decision—as opposed to a
holding—does not bind future panels, including this one. 6th Cir.
R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir.
2010) (explaining that statements which are "not necessary to the
outcome" are not binding on later panels). The Adams III panel
had already concluded that the petitioner's claim was both
procedurally defaulted and forfeited. Adams III, 826 F.3d at 320.
And although we may choose to excuse forfeiture in an exceptional
case, we cannot ignore procedural default absent an express
finding of cause and prejudice. Wainwright, 433 U.S. at 86-87.
Thus, the statements "necessary" to the decision in Adams III
ended when the panel acknowledged the default and forfeiture

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without any indication that an exception was present. Adams III,
826 F.3d at 320.
Thus, to the extent that Adams III purported to permit Baze-style
habeas claims that refuse to concede the possibility of an
acceptable means of execution, it is not controlling. Since Glossip's
holding directly addressed that question, it is binding on us, and we
follow it today. In doing so, we do not intend to diminish the
importance or correctness of the holding in Adams II that § 1983
and habeas are not mutually exclusive as a per se rule. All Baze
and Glossip require is that— in the peculiar context of method-ofexecution claims—the death-row inmate must proceed under §
1983.
Campbell, 874 F.3d at 463-64 (emphasis supplied).
As this judge reads Campbell, it holds that Glossip means what it appeared to many
judges of this Court to mean when it came down: lethal injection invalidity claims must be
brought in a § 1983 case and not in habeas corpus.
The four Grounds for Relief sought to be dismissed are plainly lethal injection invalidity
claims. Grounds Forty-One, Forty-Two, and Forty-Three assert Ohio can never constitutionally
execute Gregory McKnight because of prohibitions in the Eighth and Fourteenth Amendments.
Ground Forty-Four relies on the fundamental defect theory of habeas corpus for violation of
federal statutes recognized in Reed v. Farley, 512 U.S. 339 (1994). The teaching of Campbell is
therefore that these claims must be dismissed as not cognizable in habeas, but without prejudice
to their pursuit under § 1983, at least as to the constitutional claims.
McKnight asserts Campbell should not be followed here, but that Adams III remains the
controlling precedent (Response in Opp., ECF No. 260, PageID 17429-30). He relies first of all
on Davis v. Jenkins, No. 2:10-cv-107, 2017 U.S. Dist. LEXIS 161152 (S.D. Ohio Oct. 2,
2017)(Sargus, Ch. J.). Davis found lethal injection invalidity claims remained cognizable in

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habeas despite In re: Tibbetts, 869 F.3d 403 (6th Cir. 2017). But Davis was decided three weeks
before Campbell was handed down and could not take that decision into account.
The Campbell court dealt with Adams III by characterizing the language this Court had
been following as dictum. McKnight argues Campbell is not controlling because the language in
Glossip on which it relies is also dictum (Response, ECF No. 260, PageID 17429-30). The
undersigned has already been reversed once by the Sixth Circuit for not taking seriously enough
the language of Glossip – dictum or otherwise. Fears v. Morgan (In re: Ohio Execution
Protocol Litig.), 860 F.3d 881, 886 (6th Cir. June 28, 2017)(en banc); cert den. sub nom. Otte v.
Morgan, ___ U.S. ___, 137 S.Ct. 2238(July 25, 2017)(“[N]either, as the plaintiffs suggest, is
Glossip irrelevant here. Quite the contrary: the Court's opinion contains plenty of reasoning that
was not confined to the record there—and which therefore binds us just as much as the reasoning
in any other opinion of the Supreme Court.”). The Campbell majority held itself bound by the
language in Glossip that McKnight asserts is dictum, but that this Court followed assiduously in
the interim between Glossip and Adams III. As a subordinate court, we also are bound by what
the Sixth Circuit now says Glossip means.
In thinking about language in Campbell as holding or dictum, the Magistrate Judge finds
it useful to remember the distinction between obiter dictum and judicial dictum. The latter refers
to “an opinion by a court on a question that is directly involved, briefed, and argued by counsel,
and even passed on by the court, but that is not essential to the decision.” GARNER’S
DICTIONARY OF LEGAL USAGE (3rd ed.) at 275, citing Cerro Metal Prods. v. Marshall, 620 F.2d
964, 978, n. 39 (3rd Cir. 1980).

Garner notes that judicial dictum has been held binding

precedent. Id. The Campbell court plainly intended to provide guidance to the District Courts
on precisely the question presented by the instant Motion.

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McKnight argues Campbell does not apply to his “fundamental defect” statutory claim
because Glossip dealt exclusively with Eighth Amendment claims (Response, ECF No. 260,
PageID 17430). In Bays v. Warden, 2017 U.S. Dist. LEXIS 200400 (S.D. Ohio Dec. 6, 2017),
the Magistrate Judge dealt with the same argument in another capital habeas case. Bays pleaded
a claim which is a verbatim copy of McKnight’s Ground Forty-Four. Campbell had pled the
same claim and the Sixth Circuit dismissed it without discussion.3
In Bays the Magistrate Judge wrote that “[a]lthough Campbell only expressly addressed
Eighth Amendment claims, its logic is fully applicable” to the statutory fundamental defect
claim. 2017 U.S. Dist. LEXIS 200400 at *22. The Campbell court wrote:
[T]he Glossip Court necessarily barred all habeas petitions
challenging "a particular application of a particular protocol to a
particular person" as unconstitutionally painful. In re Tibbetts, 869
F.3d 403, 406 (6th Cir. 2017). These challenges are properly
remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
sentence entirely.
A review of fundamental habeas and § 1983 principles confirms
that this is the correct view of the law. Only when a serious error
infects the very fact of a death sentence can the writ grant relief.
See Heck, 512 U.S. 477, 481, 114 S. Ct. 2364, 129 L. Ed. 2d 383;
Buck v. Davis, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017). This
principle arises because habeas relief does not exist to ferret out
every constitutional violation, or even to directly prohibit the
government from breaking the law; instead, it exists to relieve the
prisoner of an unlawful sentence. See, e.g., Stone v. Powell, 428
U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); Gall v.
Scroggy, 603 F.3d 346, 353 (6th Cir. 2010). To that end, the writ
necessarily "provides the petitioner the right to relief from all
direct and collateral consequences of the unconstitutional
[sentence]." Gall, 603 F.3d at 353 (emphasis added). Thus, if a
3

Perhaps because Campbell was handed down on October 25, 2017, in the shadow of Campbell’s scheduled
execution on November 15, 2017. As has been widely reported, that execution was halted in process by ODRC
Director Gary Mohr.

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petitioner's legal theory would not inherently require the
nullification of his death sentence, he has no business proceeding
in a habeas court. The Great Writ is not concerned with the
piecemeal reformation of an imperfect criminal justice system.
In contrast, § 1983 is engineered to accomplish this lofty goal. The
statute empowers a court to enjoin, "in equity," "the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983 (emphasis
added). When properly invoked, the statute can be used to compel
the government to recognize that even the guilty have rights, and
that even a conviction or death sentence does not deprive a person
of their humanity. See, e.g., Baze, 553 U.S. at 52; Hudson v.
McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992);
Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1
(1985); Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976). Indeed, Ohio death-row inmates—including
Campbell—are currently litigating the constitutionality of the
protocol in a § 1983 action, seeking a declaration that Ohio's
execution protocol is torturously painful. See In re Ohio Execution
Protocol Litig., No. 2:11-cv-1016 (S.D. Ohio). In fact, Campell's
motion for a preliminary injunction to stay execution is set for
hearing this very week. Ultimately, this is the relief that all
method-of-execution claims seek: an order directed at state
officials, declaring that the state's ends do not justify its means, and
requiring the state to find another, less cruel way to enforce a
judgment of death against the prisoner.
Campbell, 874 F.3d at 462-63.

McKnight also asserts this Court should give “little, if any,

precedential weight” to Campbell or Tibbetts because they were before the Sixth Circuit on
transfer orders from this Court for a determination under 28 U.S.C. § 2244(b) whether, being
second-or-successive habeas applications, they could proceed. While that correctly describes the
procedural posture of Campbell, the Sixth Circuit did not limit itself to deciding the § 2244(b)
question but found, in part, that Campbell could not proceed because his transferred petition did
not state a claim cognizable in habeas.

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McKnight also cites a number of out-of-circuit § 2244(b) decisions which he says weigh
against giving precedential weight to Campbell. For the reasons given at length in Bays, supra,
these decisions do not support that position. See Bays v. Warden, 2017 U.S. Dist. LEXIS
200400 at *12-14. See also Turner v. Hudson, 2017 U.S. Dist. LEXIS 202425 (S.D. Ohio Dec.
8, 2017).
McKnight also argues Campbell should be given limited precedential weight because it
was decided “without the benefit of full briefing or oral argument regarding the actual merits of
the . . . case[s].” (Response, ECF No. 260, PageID 17432-33.) Campbell was before the Sixth
Circuit on a motion to remand4 claiming this Court erred in finding the petition second-orsuccessive. Even if the Sixth Circuit had found the lethal injection invalidity claims cognizable
in habeas and either that the petition was not second or successive or that it could proceed
regardless, there would not have been a circuit court decision on the “merits” of Campbell’s
claims until after this Court had entered judgment. The Sixth Circuit thoroughly considered the
cognizability issue, which is not the same as a merits decision.

Conclusion

This Court should follow Campbell and dismiss Grounds for Relief Forty-One, FortyTwo, Forty-Three, and Forty-Four. The Warden seeks dismissal with prejudice, but because the
Court does not reach the substantive constitutional questions, dismissal should be without
prejudice to their consideration in in a civil rights case under 42. U.S.C. § 1983. In other words,
the fact that they are not cognizable in habeas does not mean they are without merit.
4

Filed by one of the attorneys who represents McKnight, Assistant Federal Public Defender David Stebbins.

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December 21, 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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