Phillips v. Warden Chillicothe Correctional Institution

Filing 30

ORDER that the Court concludes that Petitioner's first and second grounds for relief are without merit. This action is DISMISSED. Signed by Judge Gregory L Frost on 9/27/13. (sem1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
RONALD PHILLIPS,
Petitioner,
Case No. 2:13-cv-791
JUDGE GREGORY L. FROST
Magistrate Judge Mark R. Abel

v.
NORM ROBINSON, Warden,
Respondent.

OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this
Court a habeas corpus action under 28 U.S.C. § 2254. Specifically, Petitioner is before this
Court to litigate two claims challenging the constitutionality of Ohio’s execution policy,
procedures, and practices. This matter is before the Court upon the Petition (ECF No. 1),
Respondent’s Return of Writ (ECF No. 28), and Petitioner’s Traverse/Reply (ECF No. 29).
Petitioner raises the following two claims:
First Ground for Relief: Phillips’s execution will violate the Eighth and
Fourteenth Amendments because Ohio’s lethal injection policy, protocols, and
procedures will result in cruel and unusual punishment.
Second Ground for Relief: Phillips’s execution will violate the Fourteenth
Amendment because ORC Section 2949.22(A) and Ohio’s lethal injection policy,
protocols, and procedures will deprive him of equal protection of the law and
other Constitutional rights.
(ECF No. 1.)
In his Eighth Amendment claim, Petitioner states that:
The State of Ohio’s current lethal injection policy, protocols, and
procedures as written and as administered, create a substantial risk of harm and/or
an objectively intolerable risk of harm, including severe physical and/or
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mental/psychological pain and suffering, as well as a torturous or lingering death,
that have and will continue to result in executions not in accord with the “dignity
of man” as required under the well-settled principles of the Cruel and Unusual
Punishments Clause of the Eighth Amendment as made applicable to the States by
the Fourteenth Amendment.
(ECF No. 1 ¶ 48.) Petitioner further states that his challenge
includes, but is not limited to, matters related to the drugs employed in the
execution process, the delivery mechanisms used for those drugs, the physical
structures employed in Ohio’s execution protocol, the personnel and training
involved in Ohio’s execution process, Ohio’s substantial and documented pattern
of repeated deviation and/or variation from the written execution policy and
execution protocols and procedures in administering executions regardless of the
particular policy in effect at the time any particular execution takes place, the
functional nonexistence of the written policy’s safeguards as administered, the
unfettered discretion granted in the policy to several of the actors involved in the
execution process and preparations, the State’s repeated failure and apparent
inability to carry out an execution without encountering serious problems
including causing the infliction of cruel, unnecessarily painful, unusual,
punishment and the denial of Constitutional rights including the right to counsel.
(Id. ¶ 51.)
The essence of Petitioner’s Fourteenth Amendment challenge is that
[t]he State of Ohio’s has demonstrated a pattern of irrationally and
arbitrarily deviating and/or varying from ORC § 2949.22(A) and the State’s
informal and formal written policies, protocol, practices, customs and procedures
without any legitimate governmental interest in doing so.
(Id. at ¶ 62.)
In his September 5, 2013 Return of Writ, Respondent begins by reasserting arguments
that the instant Petition is an unauthorized second or successive petition, that Petitioner’s claims
are not cognizable in habeas corpus, and that Petitioner’s claims are time-barred. (ECF No. 28,
at Page ID # 322-37.) This Court’s August 19, 2013 Scheduling Order unambiguously provided
the following:
Judge Lioi expressly concluded that Petitioner’s claims properly sound in habeas
corpus, that no authority precludes Petitioner from simultaneously litigating his

habeas corpus claims in this proceeding and his § 1983 claims in Case No. 2:11cv-1016, that the instant action is not a second or successive petition within the
meaning of 28 U.S.C. § 2244(b), and that the instant action is not barred by the
statute of limitations set forth in 28 U.S.C. § 2244(d). This Court need not and
will not revisit those decided issues.
(ECF No. 20, at Page ID # 296-97 (emphasis added).) The authority Respondent cites for the
position that a transferee court should abstain from deciding important issues is spurious where,
as here, courts within the Northern District of Ohio and within this district—including this
Court—have repeatedly and consistently rejected the arguments that Respondent curiously
attempts to resurrect. See, e.g., Sheppard v. Warden, Chillicothe Correctional Inst., No. 1:12-cv198, ECF No. 35. For Respondent’s sake, the Court states one more time: This Court need not
and will not revisit those decided issues, which have already been decided in this case.
The parties next debate whether Petitioner procedurally defaulted his claims by failing to
present them to the state courts, based on the Ohio Supreme Court’s decision in Scott v. Houk,
127 Ohio St. 3d 317 (2010). The Ohio Supreme Court issued Scott v. Houk to answer the
following certified question: “Is there a post-conviction or other forum to litigate the issue of
whether Ohio’s lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128
S.Ct. 1520, 170 L.Ed.2d 420 (2008), or under Ohio law?” Scott, 127 Ohio St. 3d at 318. In
answering that question, the Ohio Supreme Court began by noting the various established
methods that the Ohio legislature has established for Ohio death-sentenced inmates to receive
state review of his or her case: direct appeal, postconviction, state habeas corpus, and
application to reopen the direct appeal.
The Ohio Supreme Court then stated as follows:
The Ohio General Assembly has not yet provided an Ohio-law cause of
action for Ohio courts to process challenges to a lethal-injection protocol, and
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given the review available on this issue through Section 1983, Title 42, U.S.
Code, for injunctive relief against appropriate officers or federal habeas corpus
petitions, we need not judicially craft a separate method of review under Ohio
law. Accordingly, until the General Assembly explicitly expands state review of
death-penalty cases by creating a methodology for reviewing Ohio’s lethalinjection protocol, we must answer the certified question as follows: There is no
state postconviction relief or other state-law mode of action to litigate the issue of
whether a specific lethal-injection protocol is constitutional under Baze v. Rees,
553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), or under Ohio law.
Scott v. Houk, 127 Ohio St. 3d at 318. According to Petitioner, Scott thus determined that no
remedy exists in Ohio for raising method-of-execution challenges, thereby relieving Petitioner of
any obligation to present his claims to the state courts as a pre-condition for raising them in
habeas corpus. Respondent argues that Scott left intact an inmate’s right to raise method-ofexecution challenges through already-existing Ohio remedies. The Court need not determine
whether Petitioner procedurally defaulted his claims or reach any conclusion about the effect of
Scott, however, because both of Petitioner’s claims are ultimately without merit in habeas
corpus.1
Respondent argues that Petitioner’s claims are without legal and factual support. As to
the Eighth Amendment challenge framed in Petitioner’s first ground for relief, Respondent states
that the United States Supreme Court’s decision in Baze v. Kentucky, 553 U.S. 35 (2008),
governs Petitioner’s claim. Under Baze, according to Respondent, Petitioner’s Eighth
Amendment claim fails because Petitioner has not demonstrated that Ohio’s planned use of lethal
injection presents a sure or very likely risk of serious pain and needless suffering. (ECF No. 28,

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The Court notes that its prior discussion of procedural default in Lynch v. Hudson,
Case No. 2:07-cv-948, 2011 WL 4537890 (S.D. Ohio Sept. 28, 2011), does not necessarily
inform the parties’ debate. There, the undersigned rejected a nearly identical Eighth Amendment
method-of-execution claim not only as without merit, but also as procedurally defaulted. Lynch
is distinguishable from the instant case because in Lynch, unlike here, the petitioner had raised a
method-of-execution challenge in state postconviction, albeit a bare-bones version of the claim

at Page ID # 349-50.) With respect to the Fourteenth Amendment challenge that Petitioner sets
out in his second ground for relief, Respondent asserts that “[t]he Warden’s research has failed to
disclose any decision of the Supreme Court or a federal circuit court invalidating a condemned
prisoner’s conviction or sentence on the ground that the state’s execution procedures violated the
Equal Protection Clause.” (Id. at Page ID # 354.) With respect to both claims, Respondent relies
on Lynch v. Hudson, in which, as referenced above, the undersigned rejected similar if not nearly
identical Eighth and Fourteenth Amendment challenges raised in habeas corpus. 2011 WL
4537890, at *132.
Petitioner, relying on Baze v. Rees and other Supreme Court decisions interpreting the
Eighth Amendment’s “cruel and unusual punishment” clause, insists that his Eighth Amendment
claim is meritorious because of the numerous and various serious harms to which Ohio’s
execution policy, procedures, and practices will subject Petitioner. (ECF No. 29, at Page ID 40008.) As for his Fourteenth Amendment claim, Petitioner asserts that “[f]actual development of
Phillips’s claims will demonstrate that deviations from the State of Ohio’s death penalty statute
and the written execution protocol have resulted (and continue to result) in each inmate
condemned to death being treated disparately” in violation of their and Petitioner’s right to equal
protection. (Id. at Page ID # 410.) Examining Petitioner’s claims de novo, the Court disagrees.
Sixth Circuit precedent all but forecloses Petitioner’s Eighth Amendment claim, and
Petitioner’s Fourteenth Amendment claim finds no support in law. With respect to Petitioner’s
Eighth Amendment claim, the Court begins its analysis with Lynch v. Hudson. There, the
undersigned addressed a claim challenging Ohio’s lethal injection policy, procedures, and

he ultimately presented in habeas corpus.
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practices. The undersigned found that the claim was without merit, explaining:
Petitioner has not (and cannot) cite to any clearly established federal law as
determined by the United States Supreme Court holding that lethal injection
constitutes cruel and unusual punishment, or violates the rights to due process or
equal protection. In Fitzpatrick v. Bradshaw, where the petitioner asserted a
claim asserting that lethal injection violated the petitioner’s rights to protection
from cruel and unusual punishment and to due process of law, a sister court
within the Sixth Circuit rejected it as follows:
Fitzpatrick does not provide this Court with any citation to
case law in which lethal injection was found to be cruel and
unusual punishment. No court has found this method of execution
to be constitutionally impermissible. The Sixth Circuit has even
commented that at this time, lethal injection “is the law of the
republic.” Alley v. Little, 2006 WL 1313365, * 2 (6th Cir. 2006);
Adams v. Bradshaw, 484 U.S. F.Supp2d 753, 796 (2007). This
Court also notes, that recently the U.S. Supreme Court upheld the
constitutionality of a lethal injection protocol similar to that used in
Ohio. Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420
(2008). This claim is without merit.
No. 1:06-cv-356, 2008 WL 7055605, at *62 (S.D. Ohio Oct. 14, 2008); see also
Hand v. Houk, No. 2:07-cv-846, 2011 WL 2446383, at *113 (S.D. Ohio Apr. 25,
2011); Hanna v. Ishee, No. C-1-03-cv-801, 2009 WL 485487, at *52-53 (S.D.
Ohio Feb. 26, 2009). Not even this Court’s recent decision in Cooey v. Kasich
granting Smith’s motion for a temporary restraining order and preliminary
injunction staying his execution bolsters Petitioner’s claim. Nos. 2:04-cv-1156,
2:09-cv-242; 2:09-cv-823, 2:10-cv-27, 2011 WL 2681193 (S.D. Ohio Jul. 8,
2011). The decision does not constitute clearly established federal law as
determined by the Supreme Court. And in granting the Plaintiff-Intervener’s
motion for a temporary restraining order and preliminary injunction staying his
execution, this Court did not hold that Ohio’s execution procedure was
unconstitutional, 2011 WL 2681193, at *34. Rather, the Court concluded only
that the Plaintiff-Intervener had a substantial likelihood of succeeding on the
merits of his claim that Ohio’s execution procedure violates the Equal Protection
Clause.
Lynch, 2011 WL 4537890, at *132.
The Court still adheres to this reasoning and adds that nothing in its review of Petitioner’s
myriad allegations and the relevant case law persuades it that there is any more merit to
Petitioner’s Eighth Amendment claim here than there was in Lynch. As alluded to above, the

Supreme Court in Baze v. Rees approved a lethal-injection protocol that was nearly identical to
the protocol that Ohio had in place at that time. Assuming that Baze establishes the controlling
standard—Baze was a plurality decision and was not issued in the context of habeas corpus—a
method of execution violates the Eighth Amendment only if it creates a substantial risk of severe
pain or harm. Baze, 553 U.S. at 61-62.
In the wake of Baze, courts within the Sixth Circuit have consistently rejected habeas
claims raising Eighth Amendment and Fourteenth Amendment challenges against Ohio’s
execution protocol, procedures, and practices. In Cooey (Biros) v. Strickland, 589 F.3d 210,
223-24 (6th Cir. 2009), the Sixth Circuit held—albeit in the context of denying a stay of
execution sought in connection with a § 1983 action—that Ohio’s then-applicable protocol did
not violate the Eighth Amendment. In Treesh v. Bagley, 612 F.3d 424, 439 (6th Cir. 2010), the
Sixth Circuit denied a certificate of appealability on a claim raising an Eighth Amendment
challenge against Ohio’s execution protocol, concluding that the petitioner had failed to make a
substantial showing that he was denied a constitutional right. District courts have followed suit.
See Brinkley v. Houk, 866 F. Supp. 2d 747, 842-43 (N.D. Ohio 2011) (rejecting Eighth and
Fourteenth Amendment challenges to Ohio’s execution protocol); Scott v. Houk, No. 4:07-CV0753, 2011 WL 5838195, at *46-47 (N.D. Ohio Nov. 18, 2011) (same); Frazier v. Bobby, No.
3:09-CV-1208, 2011 WL 5086443, at *57-58 (N.D. Ohio Oct. 25, 2011) (same).
This Court has several times recently concluded in § 1983 litigation that the specific facts
and evidence that Petitioner relies on here were insufficient to demonstrate that the movants had
a substantial likelihood of succeeding on the merits of their Fourteenth Amendment claims. In
Re: Ohio Execution Protocol Litigation, 906 F. Supp. 2d 759 (S.D. Ohio 2012) (rejecting Bret

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Hartman’s request for a temporary restraining order to stay his execution); In Re: Ohio Execution
Protocol Litigation, 868 F. Supp. 2d 625 (S.D. Ohio 2012) (rejecting Mark Wiles’ request for a
temporary restraining order to stay his execution); In Re: Ohio Execution Protocol Litigation,
Case No. 2:11-cv-1016, 2012 WL 1883919 (S.D. Ohio May 22, 2012) (rejecting Abdul Awkal’s
and John Eley’s requests for temporary restraining orders to stay their executions). The Court
has given careful consideration to the facts and arguments that Petitioner offered in his Petition
(ECF No. 1) and in his Traverse (ECF No. 29), and the Court is not persuaded that they warrant
habeas corpus relief under controlling precedent or even persuasive precedent.
This Court recently rejected similar claims for habeas corpus relief in Sheppard v.
Warden, Chillicothe Correctional Inst., No. 1:12-CV-198, 2013 WL 3367420 (S.D. Ohio Jul. 5,
2013). Petitioner attempts to distinguish his case from Sheppard, arguing that neither this
Court’s conclusions in Sheppard nor any other precedent forecloses relief on Petitioner’s claims.
He argues that neither Sheppard nor this Court’s earlier decision in Lynch v. Hudson informs the
Court’s consideration of Petitioner’s claims because those cases, unlike the instant case, rejected
method-of-execution claims not upon de novo review of the merits of the claims, but upon a §
2254(d) determination that state court decisions rejecting the claims had not contravened or
unreasonably applied clearly established federal law. Petitioner’s assertion is not entirely
accurate. This Court made clear in Sheppard, as it has herein, that it had considered all of the
facts and arguments that Sheppard had raised and concluded that Petitioner’s claims did not
warrant habeas corpus relief under controlling or persuasive authority. Sheppard, Case No. 1:12cv-198, ECF No. 38, at Page ID # 325. Although the Court discussed Lynch v. Hudson, nowhere
in Sheppard did this Court limit its review to whether state court decisions had contravened or
unreasonably applied federal law.

The Court also rejects Petitioner’s assertion that, strictly speaking, no controlling
precedent forecloses relief on either of his claims. (ECF No. 29, at Page ID # 417-22.) This
Court recognized in granting a certificate of appealability in Sheppard that no on-point authority
foreclosed relief on Petitioner’s Eighth or Fourteenth Amendment claims. That concession does
not remove from this Court’s consideration the numerous cases that have touched upon the type
of method-of-execution claims that Petitioner raises herein. And those cases persuade this Court
that Petitioner’s claims, as presently pled and supported, do not warrant habeas corpus relief.
This Court’s conclusions similarly foreclose any request by Petitioner for factual
development. Finding that Petitioner can demonstrate good cause to conduct discovery requires
a finding that Petitioner’s claims have some chance of succeeding. Bracy v. Gramley, 520 U.S.
899, 908-09 (1997) (explaining that district court should grant leave to conduct discovery in
habeas corpus only where petitioner shows that if the facts are more fully developed, he or she
may be entitled to relief); Harris v. Nelson, 394 U.S. 286, 300 (1969); Williams v. Bagley, 380
F.3d 932, 974 (6th Cir. 2004). The “good cause” requirement for habeas corpus discovery
prohibits an open-ended fishing expedition and requires a petitioner to offer a supported
explanation of what evidence he or she anticipates discovery will yield. Petitioner’s attempt to
establish good cause consists of little more than an assertion that “it is manifest that
determination of whether his lethal injection habeas claims have merit can only be assessed after
discovery and an evidentiary hearing, because the claims rise and fall on the basis of the facts
involved.” (ECF No. 29, at Page ID # 423.) As noted above, in In Re: Ohio Execution Protocol
Litigation, Case No. 2:11-cv-1016, this Court recently has concluded three times that such
evidence was insufficient to demonstrate that the movants had a substantial likelihood of

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succeeding on their Equal Protection claims (ECF Nos. 107, 116, and 136). The same reasoning
is sufficient in this Court’s view to conclude that Petitioner cannot presently demonstrate “good
cause” to conduct discovery on his Fourteenth Amendment claim in habeas corpus.
Additionally, the Sixth Circuit’s decision in Cooey (Biros) v. Strickland, 589 F.3d 210 (6th Cir.
2009), considering and rejecting numerous Eighth Amendment challenges to Ohio’s execution
policies, procedures, and practices is sufficient in this Court’s view to find that Petitioner herein
cannot presently demonstrate “good cause” to conduct discovery on his general Eighth
Amendment claim in habeas corpus. That is so, in this Court’s view, despite the fact that since
Cooey (Biros), Ohio has switched its “Plan A” drug from sodium thiopental to pentobarbital.
For the foregoing reasons, the Court concludes that Petitioner’s first and second grounds
for relief are without merit. The Clerk shall enter judgment accordingly and terminate this action
on the docket records of the United States District Court for the Southern District of Ohio,
Eastern Division.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE