Henness v. Warden Chillicothe Correctional Institution

Filing 25

ENTRY WITHDRAWING REPORT AND RECOMMENDATIONS; NEW SCHEDULE SET - The Report and Recommendations portion of ECF No. 14 is WITHDRAWN. Petitioner is granted leave to amend his Petition to reference the present Ohio lethal injection protocol not later th an September 1, 2015. Should the Warden wish to do so, she shall file her motion to dismiss the newly-amended petition on the basis of Glossip, supra, not later than September 15, 2015. Any memorandum in opposition and reply memorandum shall be filed in accordance with the schedule in S. D. Ohio Civ. R. 7.2. Signed by Magistrate Judge Michael R. Merz on 8/17/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS

WARREN KEITH HENNESS,
:
Petitioner,

Case No. 2:14-cv-2580
:

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

-vsCHARLOTTE JENKINS, Warden,
Chillicothe Correctional Center
Respondent.

:

ENTRY WITHDRAWING REPORT AND RECOMMENDATIONS;
NEW SCHEDULE SET

This capital habeas corpus case is before the Court sua sponte.
On February 23, 2015, the Magistrate Judge filed a Decision and Order denying
Respondent’s Motion to Transfer this Case to the Sixth Circuit for a determination of whether it
could proceed despite that “second or successive” bar in 28 U.S.C. § 2244 (ECF No. 14). In the
same filing, the Magistrate Judge recommended that the Warden’s alternative motion to dismiss
for failure to state a claim cognizable in habeas corpus be denied. Id. The Warden had sought
that relief in reliance on Scott v. Houk, 760 F.3d 497 (6th Cir. 2014). The Magistrate Judge noted
that he had previously rejected the claim that Scott overruled Adams v. Bradshaw, 644 F.3d 481
(6th Cir. 2011)(ECF No. 14, PageID 194, citing Tibbetts v. Warden, 2014 U.S. Dist. LEXIS
177726, *4 (S.D. Ohio Dec. 29, 2014). The Warden objected to the Decision and Order (ECF
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No. 16) and Henness has replied (ECF No. 17).
The Magistrate Judge continues to adhere to the denial of transfer to the Sixth Circuit.
However, two changed circumstances require additional consideration of the Report portion of
the filing:
1.

The Petition attacks as unconstitutional the lethal injection protocol adopted by the State

of Ohio on April 28, 2014 (See ECF No. 14, PageID 193). The Court is advised that protocol
has been superseded a number of times, most recently on June 29, 2015. Thus Henness’ claims
directed to the superseded protocol are moot.
2.

On the same day the new protocol was promulgated, the Supreme Court decided Glossip

v. Gross, 576 U.S. ___, 135 S. Ct. 2726, *; 192 L. Ed. 2d 761 (2015). In numerous other capital
cases pending before this Court, the Warden has asserted that Glossip effectively overrules
Adams and that habeas corpus cases raising lethal injection protocol objections should therefore
be dismissed.
Given these two developments, it is inappropriate to leave pending a Report which
assumes a different state of affairs. Therefore the Report and Recommendations portion of ECF
No. 14 is WITHDRAWN. Petitioner is granted leave to amend his Petition to reference the
present Ohio lethal injection protocol not later than September 1, 2015. Should the Warden wish
to do so, she shall file her motion to dismiss the newly-amended petition on the basis of Glossip,
supra, not later than September 15, 2015.

Any memorandum in opposition and reply

memorandum shall be filed in accordance with the schedule in S. D. Ohio Civ. R. 7.2.
August 17, 2015.
s/ Michael R. Merz
United States Magistrate Judge

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