Bethel v. Warden Ohio State Penitentiary

Filing 35

REPORT AND RECOMMENDATIONS - It is respectfully recommended the Warden's Motion to Dismiss be denied. Objections to R&R due by 9/14/2012. Signed by Magistrate Judge Michael R Merz on 8/28/2012. (kpf1)

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

Case No. 2:10-cv-391
:

-vs-

District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz

DAVID BOBBY, Warden,
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
Grounds for Relief Twenty-Four and Twenty-Five (Doc. No. 29). Petitioner opposes the Motion
(Doc. No. 30) and Respondent has filed a Reply (Doc. No. 33). The Court heard oral argument
on the Motion as part of the oral argument on parallel motions in Sheppard v. Robinson, Case
No. 1:12-cv-198 and Gapen v. Bobby, Case No. 3:08-cv-280 which has been transcribed and
filed in the Gapen case (Doc. No. 164).
Although no relevant rule is cited by the Warden, the Motion is presumably made under
Fed. R. Civ. P. 12(b)(6). Such motions are classified as dispositive under 28 U.S.C. § 636(b) and
Fed. R. Civ. P. 72, requiring a recommended disposition from a referral Magistrate Judge.
The added Grounds for Relief are as follows:
TWENTY-FOURTH GROUND FOR RELIEF. BETHEL’S
EXECUTION WILL VIOLATE THE EIGHTH AMENDMENT
BECAUSE OHIO’S LETHAL INJECTION PROTOCOL WILL
RESULT IN CRUEL AND UNUSUAL PUNISHMENT.

TWENTY-FIFTH GROUND FOR RELIEF: BETHEL’S’S
EXECUTION WILL VIOLATE THE FOURTEENTH
AMENDMENT BECAUSE OHIO’S LETHAL INJECTION
PROTOCOL WILL DEPRIVE HIM OF EQUAL PROTECTION
OF THE LAW.
(Amended Petition, Doc. No. 24, PageID 361.)
The Warden claims that, even if these two Grounds for Relief were successful, they
would not preclude the State from executing Bethel. The Warden notes that Bethel is a coplaintiff in In re: Ohio Lethal Injection Protocol Litigation, Case No. 2:11-cv-1106, a § 1983
case now pending before Judge Frost of this Court, in which plaintiffs claim that Ohio’s current
lethal injection protocol is unconstitutional under the Eighth and Fourteenth Amendments. The
Warden reads Bethel’s Complaint in that case as conceding that Ohio can carry out his sentence
in a constitutional manner and requesting that the Court order the State to do so. (Motion, Doc.
No. 29, PageID 382). The Warden argues that “Bethel sets forth nothing to distinguish the claims
he makes in his simultaneous civil suit.” Id. at 383. Since the Court, per Judge Frost, has found the
claims cognizable under 42 U.S.C. § 1983, that “conclusively establishes that the claims do not call
into question the legal validity of the adjudged sentence of death.”
Bethel responds by invoking Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), where the
Sixth Circuit allowed a challenge to Ohio’s lethal injection protocol to proceed in habeas corpus
(Response, Doc. No. 30, PageID 390). He cites a number of other pending capital habeas corpus
cases in which other judges of this Court have found lethal injection protocol challenges cognizable
in habeas. Id. at 392, citing Lindsey v. Robinson, No. 1:03-cv-702, Opinion and Order granting
leave to amend petition, Doc. No. 94, PageID 1259-60 (S.D. Ohio, July 5, 2012); Braden v. Bagley,
No. 2:04-cv-842, Opinion and Order granting leave to amend petition, Doc. No. 77, PageID 1148-49
(S.D. Ohio, July 5, 2012) (same); Davis v. Bobby, No. 1:10-cv-107, Opinion and Order granting
leave to amend petition, Doc. No. 34, PageID 527-28 (S.D. Ohio, July 5, 2012) (same); Hill v.

Mitchell, No. 1:98-cv-452, Opinion and Order granting leave to amend petition, Doc. No. 230,
PageID 2435-36 (S.D. Ohio, July 5, 2012) (same); see also Chinn v. Bradsaw, No. 3:02-cv-512,
Opinion and Order adopting Report and Recommendation over Respondent’s objections and granting
leave to amend habeas petition, PageID 1143-44 (S.D. Ohio, July 5, 2012). Bethel concludes by
noting that
seeking an injunction ordering the State to adopt a facially
constitutional execution policy is certainly not conceding that Ohio
can constitutionally carry out lethal injection executions. And asking
the court to order the State to follow its own laws in executing its
citizens does not in any way concede that the State can actually do
that.

Id. at PageID 393.

The Magistrate Judge had understood that, at the outset of the injection protocol case,
plaintiffs had conceded to Judge Frost that the injunctive relief they sought was possible to grant.
Be that as it may, Bethel now denies any such concession and makes it clear he seeks, in this
habeas case, a writ which would prohibit altogether his execution by lethal injection. That
position brings Bethel’s lethal injection claims squarely within the holding of Adams v.
Bradshaw, 644 F.3d 481 (6th Cir. 2011):
The Warden's contention that Hill [v. McDonough] "holds that a
challenge to the particular means by which a lethal injection is to
be carried out is non-cognizable in habeas" is too broad. Nowhere
in Hill or Nelson does the Supreme Court state that a method-ofexecution challenge is not cognizable in habeas or that a federal
court "lacks jurisdiction" to adjudicate such a claim in a habeas
action. Whereas it is true that certain claims that can be raised in a
federal habeas petition cannot be raised in a § 1983 action, see
Preiser, 411 U.S. at 500, it does not necessarily follow that any
claim that can be raised in a § 1983 action cannot be raised in a
habeas petition, see Terrell v. United States, 564 F.3d 442, 446 n.8
(6th Cir. 2009). Moreover, Hill can be distinguished from this case
on the basis that Adams has not conceded the existence of an
acceptable alternative procedure. See 547 U.S. at 580. Thus,
Adams's lethal-injection claim, if successful, could render his

death sentence effectively invalid. Further, Nelson's statement that
"method-of-execution challenges fall at the margins of habeas,"
541 U.S. at 646, strongly suggests that claims such as Adams's can
be brought in habeas.
Id. at 483.
The Warden includes in his Memorandum a section on the correct reading of Scott v.
Houk, 127 Ohio St. 3d 317 (2010), where the Ohio Supreme Court answered a certified question
from Judge Adams of the Northern District on the existence of an Ohio cause of action to
challenge a lethal injection protocol. The Magistrate Judge adheres to the reading of Scott which
is set out in the Report and Recommendations on the parallel Motion in Gapen. Ultimately,
however, that question need not be decided now because the Warden has not moved to dismiss
for procedural default as he did in Gapen. In light of Scott, however, it does not appear that there
now exists an Ohio forum in which Bethel could begin to litigate the constitutionality of these
claims.
Accordingly, the Warden’s Motion to Dismiss should be denied.

August 28, 2012.

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. Pursuant to Fed.R.Civ.P. 6(e), this period is automatically extended to
seventeen days because this Report is being served by one of the methods of service listed in
Fed.R.Civ.P. 5(b)(2)(B), (C), or (D) and may be extended further by the Court on timely motion
for an extension. Such objections shall specify the portions of the Report objected to and shall
be accompanied by a memorandum 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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).