McKnight v. Warden, Ohio State Penitentiary

Filing 266

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 261 Report and Recommendations. Accordingly it is hereby Ordered that 257 Petitioners Forty-First, Forty-Second, Forty-Third, and Forty-Fourth Grounds for Relief be DISMISSED WITHOUT PREJUDICE to their inclusion in an action under 42 U.S.C. § 1983.. Signed by Judge Susan J. Dlott on 1/24/18. (wam)

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 ADOPTING MAGISTRATE JUDGE
REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner’s Objections (ECF No.
264) to the Magistrate Judge’s Report and Recommendations (the “Report,” ECF No. 261)
recommending that Petitioner’s lethal injection invalidity grounds for relief (Grounds Forty-One,
Forty-Two, Forty-Three, and Forty-Four) be dismissed without prejudice to their presentation in
an action under 42 U.S.C. § 1983 for injunctive relief1. The Warden has responded to the
Objections (ECF No. 265) and they are thus ripe for de novo review pursuant to Fed. R. Civ. P.
72(b)(3).
In the Report the Magistrate Judge notes that, historically, judges of this Court have
permitted challenges to lethal injection methods of execution to be pleaded in habeas corpus in
addition to their inclusion in injunctive relief litigation under 42 U.S.C. § 1983. The judges
relied on a series of Sixth Circuit decisions in the Stanley Adams capital habeas case from the

1 Such a case has been pending in this District since 2004 and is now captioned In re Ohio Execution Protocol Litig., Case No, 2:11-cv-1016. Mr. McKnight is not presently a
party to that case, but nothing prevents him from joining it or filing separate litigation under § 1983.

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Northern District of Ohio2. The most recent reliance on Adams III was Davis v. Jenkins, 2017
U.S. Dist. LEXIS 161152 (S.D. Ohio Sep. 29, 2017)(Sargus, Ch. J.). As the Report points out,
that opinion was filed about one month before the Sixth Circuit decided In re Campbell, 874
F.3d 454 (6th Cir. 2017), cert. den. sub nom. Campbell v. Jenkins, 199 L. Ed. 2d 350 (2017), and
therefore could not take Campbell into account.
Since Campbell was decided, Magistrate Judge Merz has consistently taken the position
that Campbell rather than Adams III governs this pleading issue. See, e.g., Turner v. Hudson,
2017 U.S. Dist. LEXIS 202425 (S.D. Ohio Dec. 8, 2017); Raglin v. Mitchell, 2017 U.S. Dist.
LEXIS S.D. Ohio 213327); Chinn v. Jenkins, 2017 U.S. Dist. LEXIS 185221 (S.D. Ohio Nov.
18, 2017) and 2018 U.S. Dist. LEXIS 8548 (S.D. Ohio Jan. 19, 2018). At least one District
Judge has already adopted the same position. Bays v. Warden, Ohio State Penitentiary, 2017
U.S. Dist. LEXIS 213016 (S.D. Ohio Dec. 29, 2017)(Rose, D.J.). As far as the Court knows, no
judicial officer of this Court has yet rejected this analysis. Of course, opinions of others judges
of the same Court are not controlling, but they can be persuasive authority.
Relying on Davis, Petitioner notes that Adams III is a published opinion, subject to the
Sixth Circuit rule that one panel of the Court cannot overrule the published decision of a prior
panel. That rule applies to the holdings in published opinions as opposed to dictum. The
Campbell court did not purport to overrule Adams III, but concluded that the language judges of
this Court had relied on to allow lethal injection invalidity claims in habeas was dictum and
inconsistent with Glossip v. Gross, 135 S. Ct. 2726 (2015). If a published decision of the Sixth
Circuit tells us that language in a prior opinion of that court is dictum and inconsistent with
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), cert. den. sub. nom. Adams v. Jenkins, 137 S. Ct. 814,
106 L. Ed. 2d 602 (2017), referred to herein as Adams I, Adams II, and Adams III respectively.

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Supreme Court authority, we are obliged to follow the later opinion.
Petitioner relies on Judge Moore’s dissent in Campbell to assert that the “majority’s
reading of Glossip is questionable.” (Objections, ECF No. 264, PageID 17455). Certainly the
ultimate “meaning” of Glossip is debatable, but there is no doubt that the majority in Campbell
read Glossip to be inconsistent with allowing lethal injection invalidity claims in habeas. And
there is also no doubt the Supreme Court passed up an opportunity to clarify Glossip by denying
certiorari in Campbell. We are obliged to follow the majority’s reading of Glossip.
McKnight argues that even if the relevant language in Adams III is dictum, his claims are
still cognizable under Adams I (Objections, ECF No. 264, PageID 17455). He states that
“Glossip did not abrogate Adams I” because “[t]he language from Glossip that the Campbell
majority relied on was itself dicta because the cognizability of lethal injection claims in habeas
corpus proceedings was not before the Court in Glossip.” Id. While a debate about what is
holding and what is dictum in a Supreme Court decision may be an interesting academic
exercise, that is not the task in which we are engaged. Our task as a lower court is to make sense
of the meaning of Sixth Circuit decisions and then to follow them as best we can, not to look for
ways around them. There can be no doubt of the clear intention of the Sixth Circuit in Campbell
to exclude lethal injection invalidity claims of the type McKnight makes from habeas corpus
litigation.
McKnight argues that, because Campbell was decided on a second-or-successive
question under 28 U.S.C. § 2244(d), it is not precedent on the underlying merits (Objections,
ECF No. 264, PageID 17456-58). McKnight is correct that the Sixth Circuit did not purport to
decide the merits of the underlying substantive constitutional claims in Campbell, but clearly did
decide they were not cognizable in habeas.

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The Court has reviewed the findings and conclusions of the Magistrate Judge and has
considered de novo all of the filings on Respondent’s Motion to Dismiss (ECF No. 257) with
particular attention to the issues as to which Petitioner has lodged objections. Having done so,
the Court determines that the Magistrate Judge’s recommendations should be adopted.
Accordingly, it is hereby ORDERED that Petitioner’s Forty-First, Forty-Second, FortyThird, and Forty-Fourth Grounds for Relief be DISMISSED WITHOUT PREJUDICE to their
inclusion in an action under 42 U.S.C. § 1983.

January 24, 2018.
S/Susan J. Dlott________
Susan J. Dlott
United States District Judge

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