Henness v. Warden Chillicothe Correctional Institution

Filing 58

ORDER granting 45 Motion for Order to; granting 47 Motion for Order to; granting 53 Motion for Order to overruling 49 and 55 and transferring this matter to the United States Court of Appeals for the Sixth Circuit. Signed by Judge Michael R. Barrett on 2/26/18. (ba) Modified on 3/1/2018 to change docket type (kpf).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
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.

ORDER
This capital habeas corpus case is before the Court on: (1) Petitioner Henness’ Objections
to Transfer Order (Doc. 49); and Petitioner’s Objections to the Magistrate Judge’s Supplemental
Memorandum Opinion on Transfer Order (Doc. 55).
I.

BACKGROUND

Henness’ first habeas case attacking his conviction for three counts of aggravated murder
and death sentence was filed September 19, 2000 (Case No. 2:01-cv-43). In his twenty-fourth
ground for relief, Henness challenged the lethal injection procedure used in Ohio, contending the
method constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments to the United States Constitution. The Petition was dismissed with prejudice on
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).
Henness filed his second petition on December 10, 2014 (Doc. 1), which was
subsequently amended on September 1, 2015 (Doc. 26). Petitioner’s claims for relief in the First
Amended Petition read:
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Ground One: Keith Henness’ execution by lethal injection under
Ohio law will violate the Supremacy Clause.
Ground Two: Keith Henness’ execution by lethal injection under
Ohio law will violate the Eighth Amendment because any drug
DRC [the Ohio Department of Rehabilitation and Correction] can
procure for use in lethal injections has a substantial, objectively
intolerable risk of causing unnecessary, severe pain, suffering,
degradation, humiliation, and/or disgrace.
Ground Three: Keith Henness’ execution by lethal injection
under Ohio law will violate the Eighth Amendment because it
causes a lingering and undignified death.
Ground Four: Keith Henness’ execution by lethal injection under
Ohio law will violate the Eighth Amendment because the lack of
legally available, effective drugs to conduct lethal-injection
executions will result in the arbitrary and capricious imposition of
the death penalty.
Ground Five: Keith Henness’ execution by lethal injection under
Ohio law will be a human experiment on a non-consenting prisoner
in violation of the Fourteenth Amendment.
Ground Six: Keith Henness’ execution by lethal injection under
Ohio law will violate the Eighth Amendment because the lack of
legally obtainable, effective drugs to conduct lethal-injection
executions will cause psychological torture, pain and suffering.
Ground Seven: Keith Henness’ execution by lethal injection
under Ohio law will violate the Eighth Amendment because of the
substantial, objectively intolerable risk of serious harm due to
DRC’s maladministration of Ohio’s execution protocol.
Ground Eight: Keith Henness’ execution by lethal injection
under Ohio law will violate the Equal Protection Clause of the
Fourteenth Amendment.
Ground Nine: Keith Henness’ execution by lethal injection under
Ohio law will violate the Due Process Clause of the Fourteenth
Amendment.
Ground Ten: Keith Henness’ execution by lethal injection under
Ohio law will violate the Eighth Amendment because of his
unique, individual physical and/or mental characteristics.

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(Doc. 26; PageID 284-86).
Respondent sought transfer, or in the alterative, dismissal. (Doc. 27). On May 10, 2016,
the Magistrate Judge issued a Report and Recommendation (Doc. 41), recommending the
Warden’s Motion to Dismiss be denied, with permission to re-file after the mandate issued in the
Sixth Circuit’s amended opinion in Adams v. Bradshaw (Adams III), 826 F.3d 306 (6th Cir.
2016), cert. denied, 137 S. Ct. 814 (Jan. 17, 2017). The mandate issued in Adams III on January
23, 2017, and the Warden filed her renewed Motion to Transfer on February 22, 2017. (Doc.
47). On February 27, the Magistrate Judge recommended transfer of the lethal-injection claims
(along with Henness’ motion to amend to add claims under Hurst) as second or successive. (Doc.
48). Henness objected (Doc. 49), and the Warden filed a Response. (Doc. 51). The District
Judge recommitted the matter to the Magistrate Judge on March 17, 2017. (Doc. 52).
Three days prior to the recommital order, Henness sought leave to file a Second
Amended Petition to update his lethal-injection claims. (Doc. 50). He argued that his Second
Amended Petition would address new factual predicates arising out of changes to Ohio’s
execution protocol on October 7, 2016, as well as the evidence and factual findings from the
Decision and Order preliminarily enjoining the Ohio Department of Rehabilitation and
Correction from executing Ronald Philips, Gary Otte, and Raymond Tibbetts. See In re Ohio
Execution Protocol Litig., No. 2:11-cv-1016, 2017 WL 378690 (S.D. Ohio Jan. 26, 2017). 1

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The injunction order was affirmed on appeal by the Sixth Circuit. In re Ohio Execution
Protocol Litig.,853 F.3d 822, 846 (6th Cir. 2017). The State’s Petition for Rehearing en banc
was granted on April 25, 2017, see 2017 WL 1457946 (6th Cir. Apr. 25, 2017) (en banc). Oral
argument took place on June 15, 2017, and the appeal was decided on June 28, 2017. The en
banc panel of the Sixth Circuit reversed. 860 F.3d 881, 892 (6th Cir. 2017).
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The Warden responded to Henness’ Motion for Leave with a Third Motion to Transfer
Henness’ Petition to the Sixth Circuit, or, in the Alternative, to Deny Leave to Amend. (Doc.
53). Henness filed a Response in Opposition to the Third Motion to Transfer. (Doc. 54).
On April 26, 2017, the Magistrate Judge issued a Supplemental Memorandum Opinion
on Transfer Order again finding that Henness’ lethal-injection claims, as well as his Hurst claim,
constituted second-or-successive applications that required him to recommend that the District
Court transfer the applications to the Sixth Circuit. (Doc 55; PageID# 769). Petitioner filed
objections, and the Warden responded.
II. ANALYSIS
The Court is currently considering Petitioner’s Objections to the Magistrate Judge’s
Memorandum Opinion (Doc. 48) and Supplemental Memorandum Opinion (Doc. 55), both of
which order that the case be transferred to the Sixth Circuit. In the foregoing Orders, Magistrate
Judge Merz agreed with the Warden’s argument (Doc. 47) 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[.]” (Doc. 55; PageID# 761). Because “[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),
Magistrate Judge Merz ordered that this case be transferred to the Sixth Circuit. Among
Petitioner’s other objections, Petitioner argues that the magistrate judge lacked authority to enter
the transfer order because it is dispositive; thus, according to Petitioner, he is entitled to a full de
novo review of the transfer issue.
For the purpose of resolving the objections and motions, the Court will address
Petitioner’s arguments in this order: (a) whether the order is dispositive, and thus subject to de

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novo review; (b) whether Petitioner’s Petition, and proposed amendments, constitute second or
successive claims; and (c) whether Petitioner’s Hurst Claim is second or successive.
a. The Transfer Order is Subject to De Novo Review, Regardless of Whether It is
Legally Dispositive
The question of whether a transfer order is dispositive has been the subject of many
recent objections to opinions of magistrate judges in the Southern District of Ohio, in which
habeas petitioners argue that magistrate judges lack the authority to transfer second or successive
petitions to the Sixth Circuit. However, the question need not be resolved in this case. The
Court agrees with the magistrate judge (Doc. 55; PageID# 765) that, regardless of whether the
transfer order is dispositive, Petitioner’s objections involve questions of law that are subject to de
novo review. See also Tibbetts v. Warden, 1:14-cv-602, 2017 U.S. Dist. LEXIS 83416, at *4
(S.D. Ohio May 30, 2017) (Dlott, J.); Campbell v. Jenkins, No. 2:15-cv-1702, 2017 U.S. Dist.
LEXIS 130803, at *9 (S.D. Ohio Aug. 16, 2017) (Rice, J.).
Accordingly, the Court will undertake a de novo review of the remaining issues.
b. The Petition is Second or Successive, and Thus Requires Circuit Court Permission
to Proceed
In his amended Petition, Henness asserts claims implicating Ohio’s lethal injection
protocol. He argues that his claims are second-in-time, but not “second or successive,” because
they are based on factual predicates that arose after his first habeas petition was filed in 2000.
1. Circuit Court Permission
Federal law generally gives habeas petitioners one chance to pursue their claims in
federal court. In re Stansell, 828 F.3d 412, 413-414 (6th Cir. 2016) . To pursue habeas relief via
“second or successive” petitions, applicants must overcome strict limits before federal courts will
permit them to proceed. Id. (citing 28 U.S.C. § 2244(b)(3)(A)). “Indeed, district courts lack

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jurisdiction to deal with such cases without circuit court permission.” Tibbetts v. Warden
Chillicothe Corr. Inst., 1:14-cv-602, 2017 U.S. Dist. LEXIS 51968, at *12 (citing Franklin v.
Jenkins, 839 F.3d 465(6th Cir. 2016); Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 166 L.
Ed. 2d 628 (2007)).
As the magistrate judge correctly observed, the determination of whether a habeas
application is second or successive is committed to the District Court in the first instance. 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). If the district court determines that the petition is second or successive, then
the district court must transfer it to the Sixth Circuit, which will undertake an analysis of whether
the petition may proceed. “Because district courts have no jurisdiction to consider the merits of
a second-or-successive habeas application, they risk serious waste of time and effort if they
accept a petition and the court of appeals later concludes they had no jurisdiction to consider it.”
Tibbetts, 2017 U.S. Dist. LEXIS 83416, *7. In other words, this Court, and the litigants, risk
wasting significant resources if the Court improvidently accepts jurisdiction over the Petition.
With this caution in mind, the Court turns to the question of whether the Amended Petition, and
proposed amendments, are “second or successive.”
2. Abuse of the Writ Doctrine
The abuse of the writ doctrine governs whether a petition is “second or successive.”
“Under the abuse of the writ doctrine, a numerically second petition is ‘second’ when it raises a
claim that could have been raised in the first petition but was not so raised, either due to
deliberate abandonment or inexcusable neglect.” In re Bowen, 436 F.3d 699, 704 (6th Cir.

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2006). 2
Here, there is no dispute that Henness’ first petition was filed in 2000, and dismissed in
2007. The petition now before the Court was filed in 2014. However, Henness argues that this
case is not second-or-successive because it asserts claims based on “predicates that arose after
the filing of the original petition” (i.e., the alleged “watershed change in Ohio’s lethal injection
protocol”) (Doc 46; PageID# 550; Doc. 56; PageID# 778). Petitioner asserts the following to
support that his “new” claims are cognizable in habeas:
Henness’ death sentence is invalid because Ohio, by operation of
its own state law, can use only lethal injection to carry out his
death sentence; and because Ohio cannot constitutionally carry out
a lethal-injection execution on Henness, since Ohio has shown that
it cannot lawfully obtain execution drugs, cannot constitutionally
administer any execution protocol it has ever adopted, and because
it is incapable of adjusting its execution protocol to accommodate
and address Henness’ unique, individualized characteristics.
(Doc. 57; PAGEID# 778). In seeking leave to amend, Henness also seeks to “update his lethalinjection claim” with purportedly new factual predicates and evidence underlying the Fears
injunction, which the Sixth Circuit has since vacated. According to Henness, because these
lethal injection claims are “newly ripe,” the filing of his second-in-time petition and an amended
petition should not be deemed an abuse of the writ.
In support, Henness relies on Adams v. Bradshaw, 826 F.3d 306, 321 (6th Cir.
2016)(“Adams III”). In sum, Adams III recognizes that “challenges [to] the constitutionality of
lethal injection in general . . . [are] cognizable in habeas.” Id. However, “a challenge to a
particular [execution] procedure that concedes the possibility of an acceptable alternative
procedure is properly brought in a § 1983 action.” Id. (citing Glossip, 135 S. Ct. at 2738). In an

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An example of a numerically second petition, that is not “second or successive,” is a § 2254 application raising an
incompetency claim based on Ford v. Wainwright, 477 U.S. 399 (1986), filed as soon as it is ripe. Panetti v.
Quarterman, 127 S. Ct. 2842, 2853, 551 U.S. 930, 945, 168 L. Ed. 2d 662, 677 (2007).
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attempt to fit within the Adams III framework, Henness argues that his claims are properly
brought in habeas because they assert that his sentence “cannot be lawfully carried out on him
via lethal injection, and Ohio law permits no other manner of execution.” (Doc. 57). According
to Henness, his claims were “unripe until recently,” becoming ripe when Ohio changed its
execution protocol. (Id.)
In sum, Petitioner advocates for an interpretation essentially allowing the habeas statute
of limitations to restart every time Ohio changes its lethal injection protocol. The Magistrate
Judge rejected Petitioner’s arguments, which again cited changes to Ohio’s lethal injection
protocol as new factual “predicates,” reasoning that: “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.” (Doc. 48; PageID# 587). This Court agrees with the Magistrate Judge.
Furthermore, the Magistrate Judge’s logic has already been accepted by at least one other district
judge in the Southern District of Ohio. See, e.g., Tibbetts, 2017 U.S. Dist. LEXIS 83416, at *14
(“Petitioner's position — presumably applicable to all capital petitioners represented by the
Federal Public Defender — completely conflates habeas and § 1983 procedure. If that is what
the Sixth Circuit intended by its decision in Adams III, it will presumably tell us in response to
the Transfer Order.”) (Dlott, J.). 3 Furthermore, after the parties completed their objection
briefing in this case, the Sixth Circuit’s stance on Petitioner’s arguments has become
increasingly clear: “[T]he Glossip Court necessarily barred all habeas petitions challenging ‘a
particular application of a particular protocol to a particular person[.]” In re Campbell, 874 F.3d
454, 462 (6th Cir. 2017) (citing In re Tibbetts, 869 F.3d 403, 406 (6th Cir. 2017)).
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Ultimately, the Sixth Circuit did not use Tibbetts to impose such a directive on the district court. Instead, upon
transfer, the Sixth Circuit dismissed the petition. In re Tibbetts, 869 F.3d 403, 408 (6th Cir. 2017).

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Accordingly, Henness’ objection, as it relates to his non-Hurst claims, is overruled.
c. The Hurst Claim is Second or Successive
Henness also wishes to file a Second Amended Petition asserting the following ground
for relief, which he styles as his “Hurst” claim:
ELEVENTH GROUND FOR RELIEF
Henness’s Sixth, Eighth, and Fourteenth Amendment Rights were
violated because the jury’s penalty phase findings and
recommendation of a death sentence were only advisory and the
judge actually made the conclusive findings and determination that
Henness be sentenced to death.

In Hurst, the Supreme Court found that Florida's capital sentencing scheme violated the Sixth
Amendment, given that the jury was not required to make critical factual findings necessary to
impose the death penalty. Hurst v. Florida, 136 S. Ct. 616, 621-22, 193 L. Ed. 2d 504 (2016)
(citing Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)). Henness
maintains that Ohio's capital sentencing scheme suffers from the same flaw.
According to Henness, his new petition is not second or successive because Hurst was
not decided when he filed his first petition. However, Henness’ argument “would considerably
undermine—if not render superfluous—" the rule reflected in 28 U.S.C. § 2244(b). In re
Coley, 871 F.3d 455, 457-58 (6th Cir. 2017).
Accordingly, Henness’ objection, as it relates to his Hurst claim, is overruled.
III.

CONCLUSION
Therefore, consistent with the above, the Court OVERRULES Henness’ objections

(Doc. 49; Doc. 55) and TRANSFERS this case to the United States Court of Appeals for the
Sixth Circuit. Thus, the Warden’s Motions to Transfer (Doc. 45; Doc. 47; Doc. 53) are
GRANTED IN PART, consistent with the Magistrate Judge’s transfer order. Unless and until
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this matter is remanded, this Court lacks jurisdiction to rule upon the remaining motions.
IT IS SO ORDERED.

s/ Michael R. Barrett
_____________________________
Hon. Michael R. Barrett
United States District Judge

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