Campbell v. Jenkins

Filing 22

DECISION AND ORDER - This case is accordingly ordered TRANSFERRED to the Sixth Circuit Court of Appeals for a determination of whether it can proceed. Signed by Magistrate Judge Michael R. Merz on 1/20/2016. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
ALVA E. CAMPBELL, JR.,
Petitioner,

:

- vs -

Case No. 2:15-cv-1702
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

CHARLOTTE JENKINS, Warden,
Chillicothe Correctional Institution,
:
Respondent.

DECISION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s renewed Motion for
Leave to File an Amended Petition (ECF No. 19). The Warden opposes the Motion (ECF No.
20) and Campbell has filed a reply in support (ECF No. 21).
Motions to amend under Fed. R. Civ. P. 15 are non-dispositive under 28 U.S.C. §
636(b)(1)(A) and thus come within the decisional authority of Magistrate Judges in the first
instance, in referred cases.
On September 21, 2015, the Court denied a prior Motion to Amend by Campbell based
on the reasoning set forth in Landrum v. Robinson, 2015 U.S. Dist. LEXIS 116914 (S.D. Ohio
Sept. 2, 2015); Turner v. Hudson, 2015 U.S. Dist. LEXIS 119882 (S.D. Ohio Sept. 9, 2015);
Franklin v. Robinson, 2015 U.S. Dist.LEXIS 120595 (S.D. Ohio Sept. 10, 2015); Raglin v.
Mitchell, Case No. 1:00-cv-767 (ECF No. 243), as to the proper interpretation and application of
the Supreme Court’s decision in Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2738 (2015).
Campbell v. Jenkins, No. 2:15-cv-1702, U.S. Dist. LEXIS 125772,(S.D. Ohio, Sept. 21,
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2015)(copy at ECF No. 16). The prior Motion was denied “without prejudice to its renewal not
later than October 13, 2015.1 If Campbell does move again to amend, he must state plainly how
the claims he wishes to plead here differ from those claims he has pled in In re Ohio Lethal
Injection Protocol Litig., Case No. 2:11-cv-1016.” Id. at PageID 471. Because the instant
Petition is a second-in-time application for habeas, the Court also ordered that in any renewed
motion, Campbell “must state his position as to why this is not a second or successive habeas
petition on which this Court is without jurisdiction absent prior permission from the circuit court
of appeals.” Id.

ANALYSIS

Cognizability

Based on the reasoning set forth in Turner v. Hudson, 2016 U.S. Dist. LEXIS 6019(S.D.
Ohio Jan. 19, 2016), denying a parallel motion to amend in a capital habeas case, the Court
concludes that the claims sought to be pleaded in Campbell’s proposed amended petition are not
cognizable in habeas corpus, but are rather method-of-execution claims which must be pursued
in a § 1983 action. Campbell is already a plaintiff in In Re: Ohio Execution Protocol Litigation
Case No. 2:11-cv-1016, and has pleaded parallel claims in that case. Campbell’s Motion to
Amend is DENIED on that basis. See also Henderson v. Warden, No. 1:12-cv-703, 2015 U.S.
Dist. LEXIS 134120 (S.D. Ohio Sept. 30, 2015)(Frost, D.J.)
The Warden also argues Campbell’s federal statutory claims are barred by Ohio’s
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Extended to October 27, 2015. The instant Motion is timely filed.

2

Eleventh Amendment immunity (Opposition, ECF No. 20, PageID 567). The immunity of States
from suit in federal court provided by the Eleventh Amendment does not apply to habeas corpus
cases. Seminole Tribe of Florida v. Florida, 517 U.S. 44, 178-79 (1996); Fitzpatrick v. Bitzer,
427 U.S. 445, 455-56 (1976); Frank v. Mangum, 237 U.S. 309, 331 (1915); Ex Parte Royall, 117
U.S. 241, 249 (1886). Therefore the Eleventh Amendment is not a basis on which to deny the
Motion.
Campbell’s proposed amended petition contains the following Ground for Relief
Ground Three: CAMPBELL’S SENTENCE OF DEATH BY
LETHAL-INJECTION UNDER OHIO LAW IS AN INVALID
SENTENCE AND THUS UNCONSTITUTIONAL BECAUSE
OHIO’S EXECUTION LAWS ARE PREEMPTED BY
FEDERAL LAW.
Sub-claim A. Lethal-injection
executions
in
Ohio
are
unconstitutional because Ohio statutory and administrative law
governing executions, as written and as administered, are
preempted by federal law, leaving Ohio with no valid lethalinjection statute and no valid lethal-injection protocol, and thus no
way to carry out a death sentence.
Sub-claim B. DRC’s actions in obtaining execution drugs, its
import, purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the CSA) of those
drugs violate the CSA.
Sub-claim C. The Ohio lethal-injection statute and DRC’s
Execution Protocol purport to permit DRC to obtain controlled
substances used in executions without a valid prescription, in
violation of the CSA and DEA regulations.
Sub-claim D. The Ohio lethal-injection statute and DRC’s
Execution Protocol purport to authorize DRC to provide controlled
substances to Drug Administrators in contravention of the CSA
and DEA regulations.
Sub-claim E. DRC’s actions in obtaining execution drugs violate
the FDCA because those drugs used in an execution are
unapproved drugs and/or misbranded drugs and/or constitute
unapproved Investigational New Drugs.
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Sub-claim F. Thiopental sodium can never be used as an
execution drug in compliance with the FDCA.
(ECF No. 19-1). Whether Ohio enjoys sovereign immunity with respect to these claims or
whether federal law pre-empts Ohio execution law in the ways Campbell argues – arguments the
Warden makes – are issues that are not properly presented in this case. Campbell cites no
Supreme Court decisional law clearly establishing within the meaning of 28 U.S.C. § 2254(d)(1)
that a State’s ignoring of federal drug laws in executing a death sentence violates the United
States Constitution. Put another way, there is no clearly established constitutional right not to be
executed with drugs obtained or used in violation of federal statute. On that basis, Ground Three
is not cognizable in habeas corpus.

On the other hand, it seems appropriate to test this

proposition in § 1983.

Second or Successive

Campbell filed a previous habeas corpus petition in this Court challenging his conviction
and death sentence. Campbell v. Warden, No. 2:05-cv-193. This Court denied relief, the Sixth
Circuit affirmed, and the Supreme Court denied certiorari. Campbell v. Bradshaw, 674 F.3d 578
(6th Cir. 2012), cert. den. sub nom Campbell v. Robinson, 133 S. Ct. 527, 184 L. Ed. 2d 344
(2012). A habeas petitioner may not proceed on a second or successive habeas petition directed
to the same judgment without prior permission from the circuit court of appeals. 28 U.S.C. §
2244(b)(2).
The Warden contends that “[b]ecause only the Circuit Courts have statutory jurisdiction
to make a screening determination of whether a petition is successive, this Court has no
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jurisdiction to take on that ‘gate-keeping’ function.” (ECF No. 20, PageID 571, citing Felker v.
Turpin, 518 U.S. 651, 662 (1996).). The Sixth Circuit has interpreted the AEDPA differently,
holding that a district court must make the second or successive characterization in the first
instance and transfer the case only after it has decided that an application is second or successive.
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).
Campbell cites a host of cases in which this Court and others have held that petitions such
as his are not second or successive because they arise anew whenever a new lethal injection
protocol is adopted (Motion, ECF No. 19, PageID 488-89, citing Sheppard v. Warden, Chillicothe
Corr. Inst., No. 1:12-cv-198, 2013 U.S. Dist. LEXIS 5560, at *19 (S.D. Ohio Jan. 14, 2013); Tibbetts
v. Warden, No. 1:14-cv-602, 2014 U.S. Dist. LEXIS 177726 (S.D. Ohio Dec. 29, 2014) (Merz, M.J.);
Raglin v. Mitchell, No. 1:00-cv-767, 2013 U.S. Dist. LEXIS 141199, at *94 (S.D. Ohio Sep. 29,
2013) (Barrett, J.); Smith v. Pineda, No. 1:12-cv-196, 2012 U.S. Dist. LEXIS 121019, at *13-14
(S.D. Ohio Aug. 27, 2012) (Merz, M.J.), supplemented by 2012 U.S. Dist. LEXIS 154037, at *2-4
(S.D. Ohio Oct. 26, 2012), then adopted by 2012 U.S. Dist. LEXIS 171759, at *2 (S.D. Ohio Dec. 4,
2012) (Rose, J.); Chinn v. Bradshaw, No. 3:02-cv-512, 2012 U.S. Dist. LEXIS 93083, at *8-9 (S.D.
Ohio July 5, 2012) (Sargus, J.); and Phillips v. Robinson, No. 5:12-cv-2323, 2013 U.S. Dist. LEXIS
108820, at *44-45 (N.D. Ohio Aug. 2, 2013) (Lioi, J.).
Campbell’s Motion fails to mention that all of these cases were decided before Glossip,
supra. The rationale for treating claims as arising anew was based on extending the statute of
limitations analysis in 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), to the second or successive issue.
That rationale is no longer viable in light of Glossip. Habeas
claims must attack the validity of the judgment itself and thus
accrue when the death sentence is imposed, not when the State
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adopts a new lethal injection protocol. Challenges directed to the
particulars of a method of execution must, under Glossip, be
brought in § 1983 litigation.

Landrum v. Robinson, 2015 U.S. Dist. LEXIS 146195 (S.D. Ohio Oct. 28, 2015)(Merz,
M.J.)(concluding that a parallel second-in-time petition based on adoption of a new lethal
injection claim was second-or-successive).
This case is accordingly ordered TRANSFERRED to the Sixth Circuit Court of Appeals
for a determination of whether it can proceed.

January 20, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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