Landrum v. Warden Chillicothe Correctional Institution

Filing 19

REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be dismissed without prejudice for failure to plead a claim cognizable in habeas corpus with sufficient clarity to distinguish it from the claims Landrum has made in In re Ohio Lethal Injection Protocol Litig. Landrum is granted leave to move to file an amended petition not later than September 15, 2015. Should Landrum move to amend, he must restate his position on why this would not be a second or successive petition. This Court has previously allowed new lethal injection habeas petitions to avoid the second or successive bar on the basis that they were raising new claims which could not previously have been pled, based on the adoption of new lethal injection pro tocols by the State. But the Court questions whether that rationale can support a habeas claim that any lethal injection execution would be unconstitutional since lethal injection has been an available method of execution in Ohio since before Landrum filed his initial Petition and became the exclusive method while his Petition was pending. Objections to R&R due by 9/21/2015. Signed by Magistrate Judge Michael R. Merz on 9/2/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
LAWRENCE LANDRUM,
Petitioner,

:

- vs -

Case No. 2:12-cv-859
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
Chillicothe Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
(ECF No. 15). Landrum opposes the Motion (ECF No. 16) and the Warden has filed a Reply in
Support (ECF No. 18).
The Magistrate Judge reads the Motion as made under Fed. R. Civ. P. 12(b)(6) because
the Warden asserts the Petition does not state a claim for relief cognizable in habeas corpus. The
Motion is thus “dispositive” within the meaning of 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P.
72, requiring a report of proposed findings and recommendations for decision from an assigned
Magistrate Judge.
Landrum pleads the following Grounds for Relief

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Ground One: Landrum’s execution will violate the Eighth
Amendment because Ohio’s lethal injection protocol will result in
cruel and unusual punishment.
Ground Two: Landrum’s execution will violate the Fourteenth
Amendment because Ohio’s lethal injection protocol will deprive
him of equal protection of the law [sic].
(Petition, ECF No. 4, PageID 43, 45.)

Cognizability

Landrum’s Petition asserts that his method-of-execution claims are cognizable in habeas
corpus. He acknowledges that he is a plaintiff in In re Ohio Execution Protocol Litig., Case No.
2:11-cv-1016, a consolidated case brought by death row inmates under 42 U.S.C. § 1983 to
challenge Ohio’s method of execution by lethal injection. Landrum asserts the claims raised in
that case
differ[ ] from Landrum’s habeas claims because, among other
reasons, his lethal injection habeas claims challenge the validity of
his death sentence itself. Landrum’s habeas claims, if granted, will
necessarily result in his death sentence[‘s] being set aside. See
Adams v. Bradshaw, 644 F. 3d 481, 483 (6th Cir. 2011). As a
result, habeas corpus is an appropriate vehicle for his claims, as the
Sixth Circuit Court of Appeals has recognized. Id.; see also Hill v.
McDonough, 547 U.S. 573 (2006); Nelson v. Campbell, 541 U.S.
637 (2004).

(Petition, ECF No. 4, PageID 51-52.)
The instant Motion directly challenges this assertion of habeas cognizability for methodof-execution claims on the basis of the Supreme Court’s decision in Glossip v. Gross, ___ U.S.
___, 135 S. Ct. 2726, 192 L. Ed. 2d 761 (June 29, 2015). In Glossip Oklahoma death row

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inmates brought a § 1983 action seeking to enjoin the use of midazolam (specified at 500 mg.) as
the first drug to be administered in a three-drug lethal injection protocol. As the Supreme Court
explains, Oklahoma had previously used the three-drug protocol (sodium thiopental, a paralytic
agent, and potassium chloride) found constitutional by a plurality of the Court in Baze v. Rees,
553 U.S. 35 (2008). Because sodium thiopental and a substitute, pentobarbital, have become
unavailable, Oklahoma substituted midazolam. Glossip was brought under 42 U.S.C. § 1983 and
sought injunctive relief prohibiting the use of a 500 mg. dose of midazolam in conjunction with
the other two drugs. The Supreme Court affirmed the lower courts’ denial of a preliminary
injunction on two bases:
For two independent reasons, we also affirm. First, the prisoners
failed to identify a known and available alternative method of
execution that entails a lesser risk of pain, a requirement of all
Eighth Amendment method-of-execution claims. See Baze v. Rees,
553 U. S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)
(plurality opinion). Second, the District Court did not commit clear
error when it found that the prisoners failed to establish that
Oklahoma’s use of a massive dose of midazolam in its execution
protocol entails a substantial risk of severe pain.

135 S. Ct. at 2731.
In the course of reaching these conclusions, the Court made this interpretation of Hill,
supra:
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 579580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
Id. at 2738.
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In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), the circuit court was faced with
Ohio’s claim, relying on Hill, that the district court lacked jurisdiction in habeas corpus over a
lethal injection claim. The court held:
The Warden's contention that Hill "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-of-execution 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. Relying on that language from Adams, this Court has consistently held it has
jurisdiction in habeas over method-of-execution claims. Gapen v. Bobby, 2012 U.S. Dist. LEXIS
121036, * 3-8 (S.D. Ohio 2012); Waddy v. Coyle, 2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio
2012); Sheppard v. Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012); Bethal v.
Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio 2012); Sheppard v. Warden, 2013 U.S.
Dist. LEXIS 5560, *21-22 (S.D. Ohio 2013); Turner v. Hudson, 2013 U.S. Dist. LEXIS 39470,
*3-4 (S.D. Ohio 2014).
In the Motion sub judice, the Warden argues he has won in Glossip what he lost in
Adams. “It is beyond reasonable dispute that the Sixth Circuit’s reasoning and holding in Adams
cannot be reconciled with Glossip.” (ECF No. 15, PageID 212, relying on the language from
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Glossip about Hill quoted above.)
The Warden argues Adams is also irreconcilable with Glossip because “Glossip holds
categorically that the identification of a known and available alternative method of execution that
entails a lesser risk of pain is a substantive requirement of all Eighth Amendment method-ofexecution claims.” (ECF No. 15, PageID 213, citing Glossip, 135 S. Ct. at 2739.)
In opposing the Motion to Dismiss, Landrum acknowledges his Petition is based on a
lethal injection protocol which has been superseded by a new protocol adopted the same day that
Glossip was decided and indicates he will move to amend to reference the new protocol once this
Motion has been decided (Response, ECF No. 16, PageID 218).
Landrum attempts to avoid the impact of Glossip in several classic ways. Glossip’s
reading of Hill is said to be dictum.

(Response, ECF No. 16, PageID 219.) The Warden is said

to have taken “a single sentence in Glossip . . .out of context” and to have “misinterpret[ed] what
the majority actually said in that one sentence.” Id. at PageID 220. Eventually, in a footnote,
Landrum concedes some impact of Glossip on this case:
Nevertheless, the language from Glossip demonstrates that
Landrum may have been using imprecise terminology. Landrum
has used the terms “method of execution claim” and “lethal
injection habeas claim” interchangeably. Under Glossip it appears
that “method-of-execution” claims refer to § 1983 challenges.
Landrum shall henceforth refer to challenges as lethal injection
habeas claims.

Id. at PageID 222, n. 3. But the same imprecision of language in Landrum’s prior usage is also
to be found in Adams where the court held that some method-of-execution claims which can be
brought in 1983 can also be brought in habeas. Glossip at the very least renders that statement of
the law inexact. Under Glossip’s reading of Hill, a method-of-execution claim must be brought
under § 1983 if, but only if, (1) success on the claim would not invalidate the death sentence and
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(2) the prisoner can “identify a known and available alternative method of execution that entails
a lesser risk of pain.”
Landrum fervently asserts his claims in this case are cognizable in habeas because he (1)
“has alleged claims that, if successful, would necessarily bar Ohio from carrying out his
execution,” and (2) he does not concede that the State can ever execute him by any alternative
protocol or procedure that entails a lesser risk of pain (ECF No. 16, PageID 234, 237).
At a time when habeas corpus jurisdiction was much more liberal, before enactment of
the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA"), the Supreme Court held a district court could not grant release from
confinement in a § 1983 action because to do so would frustrate the habeas exhaustion
requirements. Preiser v. Rodriquez, 411 U.S. 475 (1973). The AEDPA, of course, severely
limited habeas jurisdiction, inter alia, by enacting a statute of limitations and the bar on second
or successive petitions.1 Nelson and Hill should be read as acknowledging emendations on the
Preiser rule for conditions of execution claims of death row inmates. Glossip is consistent with
those cases; it does not question the propriety of challenging a particular lethal injection protocol
in a § 1983 action so long as the challenge would not invalidate the death sentence and the
inmate proves an alternative.
Insofar as Adams reads Hill as permitting an inmate to bring the same lethal injection
claim in both 1983 and habeas, it cannot survive Glossip.2 Landrum must limit his habeas claims

1

The Supreme Court itself has erected barriers to habeas relief since Preiser. Wainwright v. Sykes, 433 U.S. 72
(1977), held a federal habeas petitioner who fails to comply with a State’s rules of procedure waives his right to
federal habeas corpus review. Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391
(1963).
2
The Magistrate Judge acknowledges that this involves reading dictum in a Supreme Court opinion as excluding at
least one plausible reading of a published and binding Sixth Circuit decision. In a hierarchical system of courts such
as ours, it is the duty of a lower court judge to follow clear dictum of the Supreme Court even when it conflicts with
a plausible, albeit expansive, reading of a circuit court precedent. If I have misconceived my duty in this regard, the
parties have several layers of appellate review available.

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to those which would invalidate his death sentence.
Landrum’s claims as presently pled do not do that. In ¶ 1 of the Petition, he complains
of “Ohio’s current lethal injection protocol.” (Petition, ECF No. 4, PageID 43.) In ¶ 2, he
complains that there is a “substantial likelihood of Ohio’s maladministration of [its current]
execution protocol, including through deviations and/or variations from the written protocol’s
mandates.” Id. at PageID 43-44. In ¶ 3 he complains of the inclusion of certain drugs in the
then-extant execution protocol. Id. at PageID 44. In ¶ 4 he complains of the risk he suffers
from Ohio’s administration of its execution protocol. Id. In ¶ 10 he complains that Ohio’s
implementation of its lethal injection protocol will violate his Equal Protection rights. All of
these claims, as presently pled, speak to the conditions of execution of sentence, not to the death
sentence itself. While Landrum concludes each of his Grounds for Relief with the statement that
his “death sentence is constitutionally invalid,” (Id. at ¶¶ 8, 18), the conclusions do not follow
from the premises. To state a habeas corpus lethal injection claim in light of Glossip, Landrum
must plead that no way of carrying out his execution by lethal injection can ever be
constitutional.

Second or Successive Petition

The pendency of the Motion to Dismiss raises a question for the Court that is not
addressed by the parties. This is Landrum’s second-in-time habeas petition attacking the same
state court judgment. This Court’s judgment on his first Petition in Case No. 1:06-cv-641 is
presently on appeal to the Sixth Circuit after remand (6th Cir. Case No. 14-3591).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
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Stat. 1214)(the "AEDPA") amended 28 U.S.C. § 2244(b) to read in pertinent part as follows:
(b)
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B)
(i) the factual predicate for the claim could not
have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that, but for constitutional
error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
(3)
(A) Before a second or successive application permitted
by this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the application.
Landrum argues in the Petition that this is not a “second or successive application” within
the meaning of 28 U.S.C. § 2244(b) because it pleads claims which had not yet arisen when he
first filed (Petition, ECF No. 4, PageID 48-51, citing Panetti v. Quarterman, 551 U.S. 930
(2007); In re Jones, 652 F.3d 603, 605 (6th Cir. 2010); and In re Brock, 2010 U.S. App. LEXIS
27235 (6th Cir. 2010)).
His new claims, he says, arise from Ohio’s adoption of a new lethal injection protocol on
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September 18, 2011, which he says did not exist at the time his initial Petition was filed on June
20, 2000 (Petition, Doc. No. 4, PageID 50). He asserts that “[t]he Sixth Circuit explicitly
adopted habeas principles to hold that a § 1983 challenge to Ohio’s method of execution became
ripe upon the latter of conclusion of direct review of an inmate’s death sentence or when the state
adopts a new or revised execution policy.” Id. , citing Cooey v. Strickland, 479 F.3d 412, 418-19
(6th Cir. 2007) and Cooey (Beuke) v. Strickland, 604 F.3d 939, 942 (6th Cir. 2010).
Cooey v. Strickland was not addressing a second or successive question, but the statute of
limitations on § 1983 method-of-execution claims. Relying on Hill v. McDonough, 547 U.S. 573
(2006), the Sixth Circuit held Cooey’s claims were properly brought under § 1983 rather than in
habeas because, like the plaintiff in Hill, Cooey limited his challenge to “the specific protocol
currently used by” the State. 479 F.3d at 415. The court noted that “[l]ethal injection became
available as a means of execution in Ohio in 1993. In 2001, it became Ohio's sole method of
execution.” 479 F. 3d at 4163.

The critical question in Cooey was when the § 1983 two-year

statute of limitations began to run. The court found that it accrued not later than the date in 2001
when lethal injection became the exclusive execution method in Ohio. It expressly declined to
hold that it accrued when changes were made to the protocol because “none of these changes
relates to Cooey’s core complaints.” 479 F.3d at 424. Cooey does not support Landrum’s claim
that this is not a second or successive habeas petition.
In Cooey (Beuke), the Sixth Circuit noted adoption of a new protocol by Ohio and
observed “[g]iven the change of policy, the statute of limitations to challenge the new procedure
3

In 1993, a bill was passed into law granting prisoners the option to choose between death by electrocution or lethal
injection, with electrocution as the "default" method. See Ohio Rev. Code § 2949.22(A)-(B) (2000). HN7 In 2001,
Ohio made lethal injection the sole method of execution. See Ohio Rev. Code § 2949.22(A) (amending Ohio Rev.
Code Ann. § 2949.22(A) (West 2000)).

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began to run anew.” 604 F.3d at 939. This again is a ruling on a § 1983 statute of limitations
question, and not on a second or successive question.
From his citation of these two § 1983 decisions, Landrum concludes “If habeas principles
were used to establish the accrual point of claims challenging Ohio’s method of execution via §
1983, the same principles logically apply to determine whether Landrum’s instant habeas claims
were ripe at the time he filed his original habeas petition.” (ECF No. 4, PageID 50).
The Warden did not challenge Landrum’s assertion that this was not a second or
successive petition by way of a motion to transfer, but raised it as a defense in the Return of Writ
(ECF No. 6, PageID 67-70). In his Reply, Landrum noted that this Court had concluded that a
similar second-in-time habeas corpus petition was not second or successive (Reply, ECF No. 8,
PageID 123, citing Sheppard v. Bagley, 2012 U.S. Dist. LEXIS 91777, *12 (S.D. Ohio July 3,
2012), adopted 2013 U.S. Dist. LEXIS 5560, *20-*21 (S.D. Ohio Jan, 14, 2013)(Frost, D.J.)).
A district court does not have jurisdiction over a second or successive petition without
prior permission from the court of appeals. Burton v. Stewart, 549 U.S. 147 (2007). However,
the district court must itself decide the second or successive question in the first instance. In re:
Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012); In re: Kenneth W. Smith, 690
F.3d 809 (6th Cir. 2012). This Court held in Sheppard that habeas petitions raising method-ofexecution claims directed at Ohio’s lethal injection protocol arise when Ohio adopts a new
protocol.
It is doubtful that rationale remains viable in light of Glossip, supra. The case draws a
distinction between constitutional claims which, if successful, will invalidate a state court death
sentence and constitutional claims which attack the method by which the execution will be
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carried out. It allows the first class of claims to be brought in habeas, but requires the latter class
to be brought under 42 U.S.C. § 1983. Given that deepening of the distinction between habeas
and 1983, it is difficult to see how a death row petitioner has a newly-arising habeas claim
whenever the lethal injection protocol is amended and therefore not second or successive.
Because this question is jurisdictional under Burton, the Court is obliged to raise it sua
sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van
Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int’l, Ltd.,
556 F.3d 459, 465 (6th Cir. 2009); Clark v. United States, 764 F. 3d 653 (6th Cir. 2014).

Conclusion

It is therefore respectfully recommended that the Petition be dismissed without prejudice
for failure to plead a claim cognizable in habeas corpus with sufficient clarity to distinguish it
from the claims Landrum has made in In re Ohio Lethal Injection Protocol Litig. Landrum is
granted leave to move to file an amended petition not later than September 15, 2015.
Should Landrum move to amend, he must restate his position on why this would not be a
second or successive petition. This Court has previously allowed new lethal injection habeas
petitions to avoid the second or successive bar on the basis that they were raising new claims
which could not previously have been pled, based on the adoption of new lethal injection
protocols by the State. But the Court questions whether that rationale can support a habeas claim
that any lethal injection execution would be unconstitutional since lethal injection has been an
available method of execution in Ohio since before Landrum filed his initial Petition and became

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the exclusive method while his Petition was pending.

September 2, 2015.
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(d), this period is 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)(C), (D), (E), or (F). 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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