Henness v. Warden Chillicothe Correctional Institution
SUPPLEMENTAL MEMORANDUM OPINION ON TRANSFER ORDER - Having reconsidered the matter on recommittal, the Magistrate Judge remains persuaded that both the First Amended Petition and the Motion to Amend to add a claim under Hurst are second-or-successive habeas applications. It is therefore respectfully recommended that the District Court affirm the Transfer Order.. Signed by Magistrate Judge Michael R. Merz on 4/26/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
WARREN KEITH HENNESS,
Case No. 2:14-cv-2580
District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
-vsCHARLOTTE JENKINS, Warden,
Chillicothe Correctional Center
SUPPLEMENTAL MEMORANDUM OPINION ON TRANSFER
This capital habeas corpus case is before the Court on Petitioner’s Appeal (ECF No. 49)
from the Magistrate Judge’s Transfer Order (ECF No. 48).
District Judge Barrett has
recommitted the matter for reconsideration in light of the Appeal (ECF No. 52).
On January 11, 2017, Mr. Henness moved to amend his Petition in this case to add a
claim under Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016)(ECF No. 43). Taking the
position that both the original Petition and the Motion to Amend were second-or-successive
habeas petitions which this Court did not have jurisdiction to adjudicate, the Warden moved to
transfer the case to the Sixth Circuit (ECF No. 47). The Magistrate Judge agreed (Transfer
Order, ECF No. 48)(reported at 2017 U.S. Dist. LEXIS 27097 (S.D. Ohio 2017) and this appeal
followed. As permitted by Fed. R. Civ. P. 72(b), the Warden has responded to the appeal (ECF
Magistrate Judge Authority/Standard of Review
Petitioner objects that, because a motion to transfer a case to a circuit court for a
determination under 28 U.S.C. § 2244(b) on whether it may proceed is the functional equivalent
of a motion to dismiss for lack of jurisdiction, a United States Magistrate Judge lacks authority to
decide such a motion and any purported decision must be treated as a report and
recommendation instead (Objections, ECF No. 49, PageID 595).
The Warden responds that orders to transfer are not the functional equivalent of a motion
to dismiss because they do not terminate a case (Response, ECF No. 51, PageID 728, noting that
a transfer order is not appealable, citing Howard v. United States, 533 F.3d 472, 474 (6th Cir.
The Magistrate’s Act at 28 U.S.C. § 636(b)(1)(A) precludes a Magistrate Judge from
determining certain pretrial matters and those matters are called “dispositive” because they are
“dispositive of a claim or defense of a party.” See, Vogel v. U.S. Office Products Company, 258
F.3d 509, 514 (6th Cir. 2001), citing Fed.R.Civ.P. 72. The Sixth Circuit has decided the list of
dispositive motions in 28 U.S.C. § 636(b)(1)(A) is nonexhaustive and Magistrate Judges also
lack authority to decide analogous matters including Rule 11 claims for damages, Bennett v.
General Caster Service of N. Gordon Co., Inc., 976 F.2d 995 (6th Cir. 1992)(per curiam); denial
of in forma pauperis motions, Woods v. Dahlberg, 894 F.2d 187 (6th Cir. 1990)(per curiam); or a
Rule 37 order striking pleadings with prejudice, Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d
1458, 1463 (10th Cir. 1988), cited approvingly in Bennett; or a remand order, Vogel v. U.S. Office
Products Co., 258 F.3d 509 (6th Cir. 2001).
In determining whether a particular motion is dispositive, the Sixth Circuit has
undertaken a functional analysis of the motion’s potential effect on litigation. Vogel, 258 F.3d
at 514, citing Fed.R.Civ.P. 72. The list of dispositive motions contained in § 636(b)(1)(A) is
nonexhaustive, and unlisted motions that are functionally equivalent to those listed in §
636(b)(1)(A) are also dispositive. Id. (holding motions to remand are dispositive) and citing,
Callier v. Gray, 167 F.3d 977, 981 (6th Cir. 1999)(holding that a motion for default judgment is
dispositive because it is “substantially similar to several of the listed motions”); Vitols v. Citizens
Banking Co., 984 F.2d 168, 169-70 (6th Cir. 1993)(holding that a motion to certify a district court
order for interlocutory appeal is dispositive); Bennett, supra (holding that a motion for Rule 11
sanctions is dispositive); United States Fid. & Guar. Co. v. Thomas Solvent Co., 955 F.2d 1085
(6th Cir. 1992)(holding that because a motion to realign parties would either destroy or preserve
diversity jurisdiction, motions to realign are dispositive); Woods v. Dahlberg, 894 F.2d 187 (6th
Cir. 1990)(holding that an order denying a motion to proceed in forma pauperis is dispositive
because it is the functional equivalent of an involuntary dismissal).
Petitioner urges this Court to decide that decisions to transfer second-or-successive
habeas applications are functionally equivalent to dismissing a case for lack of jurisdiction and is
therefore actually dispositive. The Sixth Circuit has received many transfer orders entered by the
undersigned and has never questioned the authority of a Magistrate Judge to enter such an order.
See, e.g., In re Kenneth Smith, 690 F.3d 809 (6th Cir. 2012); In re Sheppard, 2012 U.S. App.
LEXIS 13709 (6th Cir. May 25, 2012). Because the circuit court would not have appellate
jurisdiction over an appeal from a Magistrate Judge’s report and recommendations on a
dispositive motion, one would expect the circuit court, if it agreed with Petitioner’s position, to
remand the case for lack of appellate jurisdiction. Instead, the circuit court has proceeded to
decide the merits of the transfer.
The Sixth Circuit has not decided the question and this Court has generally treated
transfer questions as nondispositive. See Fears v. Jenkins, 2017 U.S. Dist. LEXIS 47901 (S.D.
Ohio Mar. 29, 2017), distinguishing the Northern District of Ohio cases cited by Henness at
PageID 595, n. 1.
Performing the functional analysis, one can see analogies between the transfer question
and other matters found to be dispositive but not listed in 28 U.S.C. § 636(b)(1)(A). For
example, an order certifying a question for interlocutory appeal moves a case from the district
court to the circuit court and has been held to be a functional equivalent even though it does not
dispose of a claim. See Vitols, supra. Similarly, an order remanding a removed case to state
court does not “dispose” of a claim, but moves it to a different court and has been held to be
dispositive. See Vogel, supra. On the other hand, a transfer of venue under 28 U.S.C. 1404
changes the forum but has not been held to be dispositive. Intrastate transfers of venue in habeas
corpus cases under 28 U.S.C. § 2241(d) happen frequently and are often done sua sponte by
Petitioner claims a transfer is functionally equivalent to a dismissal for lack of
jurisdiction. Not so. Rather, it makes a determination that there is a prerequisite to exercise of
jurisdiction, to wit, permission from the circuit court. A district court lacks jurisdiction to
consider a second-or-successive petition without approval by the circuit court. Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147 (2007). A transfer order
does not dismiss a case for lack of jurisdiction, but delays exercise of jurisdiction until that
prerequisite is met.
Entirely apart from the question of Magistrate Judge authority to enter a transfer order is
the standard of review on that order. The Magistrate Judge agrees with Petitioner that the
standard of review is de novo because the question whether a second-in-time petition is also
second-or-successive is a pure question of law to which the “contrary to law” standard applies,
regardless of whether the Magistrate Judge filing is dispositive or non-dispositive.
The Petition and the Motion to Amend as Second-or-Successive Habeas Applications
The Transfer Order concluded that the First Amended Petition (ECF No. 26) and the
Motion to Amend to add a claim under Hurst (ECF No. 43) are second-or-successive habeas
applications and therefore must be transferred to the circuit court under In re Sims, 111 F.3d 45
(6th Cir. 1997). The Order concluded that “[a]t least Grounds for Relief One, Two, Three, Five,
Seven, Eight, and Nine” in the First Amended Petition “would have been available to [Henness]
when he filed his original habeas corpus case in this Court.1 His failure to do so then constitutes
an abuse of the writ.” (ECF No. 48, PageID 587.)
Henness does not dispute that this case is his second-in-time habeas application, but notes
that not every second-in-time petition has been classified as second-or-successive by the
appellate courts (Objections, ECF No. 49, 595). Instead, he acknowledges, “courts apply the
abuse-of-the-writ doctrine” under which “a subsequent petition is ‘second-or-successive’ when it
raises a claim that was, or could have been, raised in an earlier petition.” Id. at 597, citing James
v. Walsh, 308 F.3d 162, 167 (2nd Cir. 2002) and In re Bowen, 436 F.3d 699, 704 (6th Cir. 2006).
This was the standard the Transfer Order applied, but Henness asserts the Order is wrong on this
Henness’ first habeas case attacking his conviction and sentence of death was filed September 19, 2000 (Case No.
2:01-cv-43). That Petition was dismissed with prejudice October 31, 2007, and the dismissal was affirmed.
Henness v. Bagley, 766 F. 3d 550 (6th Cir. 2014), cert denied, 135 S. Ct. 1708 (2015).
point as to every claim it ordered transferred.
Lethal Injection Claims
The Transfer Order lays out the history of this Court’s treatment of lethal injection
method-of-execution claims, based on the series of decisions by the Sixth Circuit in the Stanley
Adams habeas case from the Northern District of Ohio. (ECF No. 48, PageID 580.) 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), referred to herein as
Adams I, Adams II, and Adams III respectively. In light of the Adams decisions, lethal injection
claims are cognizable in habeas corpus if they are “general,” that is, they assert that the State of
Ohio is constitutionally unable to execute a particular habeas petitioner by lethal injection no
matter what manner of lethal injection is employed. Adams III at 321. The Transfer Order does
not dispute that the ten grounds for relief in the First Amended Petition satisfy the pleading
requirements of Adams III.
Henness objects, however, that the First Amended Petition is “not ‘second or successive’
under § 2244(b) because “it asserts claims with predicates that arose after the filing of the
original petition [in Case No. 2:01-cv-43].” (ECF No. 49, PageID 599). The evidence which
Henness intends to submit to prove these lethal injection invalidity claims “necessarily
encompass[es] the facts relevant to what the State of Ohio has done under past execution
protocols and what it intends to do under the current execution protocol.” Id. The Transfer
Order recognized this argument and concluded “[w]hat is clear is Henness’ belief that, as death
penalty facts continue to change, he can amend his petition or make claims in new petitions that
change to reflect those facts and thus are ‘newly arisen.’” (ECF No. 48, PageID 587.) The
Transfer Order concluded on this point:
This cannot be what the Sixth Circuit meant when it authorized
“general” attacks on lethal injection death sentences in Adams III.
To do so would completely collapse in practice the distinction
between § 1983 litigation and habeas corpus litigation. If this
gambit works for capital habeas litigation, why not for non-capital?
Suppose the inmate doing thirty years for drug trafficking can
show a succession of unconstitutional conditions of confinement
imposed on him. When he gets to n+1, does he then have a habeas
claim that the State can no longer incarcerate him at all because it
has proven incapable of confining him constitutionally in the past?
(ECF No. 48, PageID 587.) Henness’ appeal nowhere argues with this conclusion. He just
continues to assert that new relevant evidentiary facts make newly arising claims.
The Hurst v. Florida Claim
The Transfer Order also found Henness’ Motion to Amend to add a claim under Hurst v.
Florida was itself a second-or-successive habeas application (ECF No. 48, PageID 588-89).
Henness objects that because Hurst was not decided until after judgment was entered in
the first case, raising it now is not an abuse of the writ (Objections, ECF No. 49, PageID 603).
He relies on Stewart v. Martinez-Villareal, 523 U.S. 637 (1998). In that case the petitioner had
raised his incompetency to be executed claim in his first habeas petition, but that petition was
dismissed without prejudice as “premature.” Chief Justice Rehnquist wrote:
[N]one of our cases expounding this [exhaustion] doctrine have
ever suggested that a prisoner whose habeas petition was dismissed
for failure to exhaust state remedies, and who then did exhaust
those remedies and returned to federal court, was by such action
filing a successive petition. A court where such a petition was filed
could adjudicate these claims under the same standard as would
govern those made in any other first petition.
We believe that respondent's Ford claim here -- previously
dismissed as premature -- should be treated in the same manner as
the claim of a petitioner who returns to a federal habeas court after
exhausting state remedies. True, the cases are not identical;
respondent's Ford claim was dismissed as premature, not because
he had not exhausted state remedies, but because his execution was
not imminent and therefore his competency to be executed could
not be determined at that time. But in both situations, the habeas
petitioner does not receive an adjudication of his claim. To hold
otherwise would mean that a dismissal of a first habeas petition for
technical procedural reasons would bar the prisoner from ever
obtaining federal habeas review.
523 U.S. at 644-45.2 Henness’ first petition was not dismissed for lack of exhaustion or any
analogous reason. Rather, it was a decision on the merits and the dismissal was with prejudice.
If the Sixth Circuit decides that Hurst creates a new substantive constitutional right which
applies to Ohio and is retroactively applicable to cases on collateral review, it may well decide
this case can proceed in the District Court without its permission. See Jackson v. Sloan, 800
F.3d 260, 261 (6th Cir. 2015), citing Howard v. United States, 533 F.3d 472 (6th Cir. 2008); In re:
Cedric E. Powell, Case No. 16-3356, 2017 U.S. App. LEXIS 1032 (6th Cir. Jan. 6, 2017).
Having determined that this case is a second-or-successive habeas application, this Court lacks
jurisdiction to decide those questions. Franklin v. Jenkins, 839 F.3d 465(6th Cir. 2016); Burton
v. Stewart, 549 U.S. 147 (2007).
Martinez-Villareal’s case bridged the time before and after the effective date of the AEDPA, which enacted the
Having reconsidered the matter on recommittal, the Magistrate Judge remains persuaded
that both the First Amended Petition and the Motion to Amend to add a claim under Hurst are
second-or-successive habeas applications. It is therefore respectfully recommended that the
District Court affirm the Transfer Order.
April 26, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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