Chinn v. Warden Mansfield

Filing 127

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS; DECISION AND ORDER ON MOTION TO AMEND - The Warden's Motion to Dismiss is technically moot because Chinn proposes to replace the Second Amended Petition with a Third Amended Petition and it is re spectfully recommended that the Motion to Dismiss be DENIED on that basis. Objections to R&R due by 10/13/2015. The Motion for Leave to File a Third Amended and Supplemental Petition is DENIED without prejudice to its renewal not later than October 9, 2015. Signed by Magistrate Judge Michael R. Merz on 9/23/2015. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DAVEL CHINN,
:
Petitioner,

Case No. 3:02-cv-512
:

Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Michael R. Merz

-vs-

WARDEN, Mansfield Correctional
Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS ON MOTION TO DISMISS;
DECISION AND ORDER ON MOTION TO AMEND

This capital habeas corpus case is before the Court on Respondent’s Motion to Dismiss
(ECF No. 118). Petitioner opposes the Motion (Response, ECF No. 121) and the Warden has
filed a Reply in Support (ECF No. 122). The case is also before the Court on Chinn’s Motion for
Leave to File a Third Amended and Supplemental Petition (ECF No. 120) which the Warden
opposes (ECF No. 125) and in support of which Chinn has filed a Reply (ECF No. 126).
Because a motion to dismiss is dispositive within the meaning of 28 U.S.C. § 636(b), it
requires a recommendation from an assigned Magistrate Judge, rather than a decision. However,
a motion to amend is a non-dispositive matter on which a Magistrate Judge has decisional
authority in the first instance. However, a motion to amend under Fed. R. Civ. P. 15 is nondispositive and therefore within the initial decisional authority of a Magistrate Judge.

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The Warden bases her Motion to Dismiss on the recent decision of the United States
Supreme Court in Glossip v. Gross, 576 U.S. ___, 135 S. Ct. 2726 (2015), where the Justice
Alito wrote for the majority:
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze decision in Hill v.
McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44
(2006), but they misread that decision. The portion of the opinion
in Hill on which they rely concerned a question of civil procedure,
not a substantive Eighth Amendment question. In Hill, the issue
was whether a challenge to a method of execution must be brought
by means of an application for a writ of habeas corpus or a civil
action under §1983. Id., at 576, 126 S. Ct. 2096, 165 L. Ed. 2d 44.
We held that a method-of-execution claim must be brought under
§1983 because such a claim does not attack the validity of the
prisoner’s conviction or death sentence. Id., at 579-580, 126 S. Ct.
2096, 165 L. Ed. 2d 44.
135 S. Ct. at 2738.
The Warden argues that this passage from Glossip “contradicts” the reading of Hill which
the Sixth Circuit gave that case in Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), when it held
that a challenge to a lethal injection protocol can be brought in a habeas corpus case under 28
U.S.C. § 2254. As the Warden notes, this Court has read Adams expansively to allow death row
inmates to pursue challenges to Ohio’s lethal injection protocols simultaneously in habeas corpus
and in a civil rights action under 42 U.S.C. § 1983. Gapen v. Bobby, 2012 U.S. Dist. LEXIS
121036, * 3-8 (S.D. Ohio 2012); Waddy v. Coyle, 2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio
2012); Sheppard v. Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012); Bethel v.
Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio 2012); Sheppard v. Warden, 2013 U.S.
Dist. LEXIS 5560, *21-22 (S.D. Ohio 2013); Turner v. Bobby, 2013 U.S. Dist. LEXIS 39470,
*3-4 (S.D. Ohio 2014).
This Court has persisted in this expansive reading of Adams despite refusals by the Sixth
Circuit to remand habeas cases for discovery on a lethal injection claim where the petitioner has
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a pending § 1983 case in which he can receive the discovery necessary to support that claim.
Scott v. Houk, 760 F.3d 497 (6th Cir. 2014); accord, Frazier v. Jenkins, 770 F.3d 485 (6th Cir.
2014). The Court has reasoned that neither Scott nor Frazier purported to overrule Adams,
which remained (and indeed remains) a published and unreversed decision of the circuit court.
Procedural History1

Davel Chinn was indicted in March 1989 for the January 30, 1989, murder of Brian
Jones. A Montgomery County petit jury found him guilty and recommended a capital sentence,
which the trial judge imposed. The Second District Court of Appeals2 affirmed the conviction
but remanded for re-sentencing. State v. Chinn, 1991 Ohio App. LEXIS 6497 (2nd Dist. 1991).
Chinn was re-sentenced to death and again appealed, resulting in another remand for resentencing. State v. Chinn, 1996 Ohio App. LEXIS 2530, *22-23 (2nd Dist. 1996). A capital
sentence was again imposed and this time the court of appeals affirmed. State v. Chinn, 1997
Ohio App. LEXIS 3614 (2nd Dist. 1997). On further appeal of right, the Supreme Court of Ohio
affirmed both the conviction and the sentence. State v. Chinn, 85 Ohio St. 3d 548 (1999), cert.
denied, 528 U.S. 1120 (2000). Chinn filed a petition for post-conviction relief under Ohio
Revised Code § 2953.21 which was denied in the trial court. That denial was affirmed on
appeal. State v. Chinn, 2001 Ohio App. LEXIS 3127 (2nd Dist. 2001). The Supreme Court of
Ohio declined jurisdiction over a further appeal. State v. Chinn, 93 Ohio St. 3d 1473 (2001).
Chinn filed his Petition for Writ of Habeas Corpus in this Court on November 4, 2002,
raising twenty Claims for Relief (ECF No. 3). On Respondent’s Motion, Chief Judge Sargus

1

This summary of the procedural history is extracted from the more thorough account in the original Report and
Recommendations on the merits (ECF No. 60, PageID 749-774).
2
Since the murder in question occurred before January 1, 1995, the direct appeal was to the intermediate court of
appeals in the first instance.
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found that Claims 5(C), 7, 11, 14, 17, and 19 were procedurally defaulted and ordered them
dismissed (Opinion and Order, ECF No. 30, PageID 569). On October 14, 2009, the reference in
the case was transferred to the undersigned (ECF No. 54). On October 14, 2011, the Magistrate
Judge filed a Report and Recommendations recommending that the Petition be dismissed with
prejudice (ECF No. 60). Chinn filed Objections (ECF No. 63) to which the Warden responded
(ECF No. 66). On recommittal, the Magistrate Judge again concluded the Petition should be
dismissed (Supplemental Report and Recommendations, ECF No. 86).
Shortly after the original Report was filed, Petitioner moved, on March 8, 2012, to amend
the Petition “to include two grounds for relief that assert that the State of Ohio’s lethal injection
protocol and/or the manner in which it administers that protocol is constitutionally infirm.”
(ECF No. 65, PageID 1059.) Over the Warden’s opposition, the Court allowed addition of
Grounds for Relief Twenty-One and Twenty-Two (ECF No. 71).
In light of developments in other capital cases in Ohio, the Court allowed Chinn, on April
13, 2015, to file a Second Amended Petition including Grounds for Relief Twenty-One through
Thirty (ECF No. 114, PageID 1629-30). All of these Grounds for Relief assert that “Chinn’s
execution by lethal injection under Ohio law” will violate some provision of the United States
Constitution:
Ground 21

the Supremacy Clause

Ground 22

the Eighth Amendment prohibition on imposing a substantial intolerable risk of
unnecessary, severe pain, suffering, degradation, humiliation, and/or disgrace

Ground 23

the Eighth Amendment prohibition on causing a lingering death

Ground 24

the Eighth Amendment prohibition on arbitrary and capricious administration of
death penalty because of lack of legally available, effective drugs

Ground 25

the Fourteenth Amendment prohibition of experimentation on non-consenting
prisoners
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Ground 26

the Eighth Amendment prohibition on imposing psychological torture and
suffering because of the lack of legally obtainable, effective drugs

Ground 27

the Eighth Amendment prohibition on imposing a substantial, objectively
intolerable risk of serious harm due to the maladministration of Ohio’s execution
protocol

Ground 28

the Equal Protection Clause of the Fourteenth Amendment

Ground 29

the Due Process Clause of the Fourteenth Amendment

Ground 30

the Eighth Amendment due to Chinn’s unique, individual physical and/or mental
characteristics

(Second Amended Petition, ECF No. 114, PageID 1618-20.)
In his pending Motion to Amend, Chinn proposes to re-plead Grounds Twenty-One
through Thirty as follows:
Ground 21

“Chinn’s sentence of execution by lethal-injection (sic) under Ohio law is an
invalid sentence and thus unconstitutional because Ohio’s execution laws are
preempted by federal law in accordance with the Supremacy Clause.”

Ground 22

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
Amendment because any drug DRC 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 23

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
Amendment because it causes a lingering and/or undignified death and other
Eighth Amendment violations.”

Ground 24

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
Amendment because lack of legally available, effective drugs to conduct lethalinjection executions will result in the arbitrary and capricious imposition of the
death penalty.”

Ground 25

“Chinn’s execution by lethal-injection (sic) under Ohio law will be a human
experiment on a non-consenting prisoner in violation of the Fourteenth
Amendment.”

Ground 26

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
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Amendment because the lack of legally obtainable, effective drugs to conduct
lethal-injection executions will cause psychological torture, pain and suffering.”
Ground 27

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
Amendment because of the substantial, objectively intolerable risk of serious
harm due to DRC’s [Ohio Department of Rehabilitation and Correction]
maladministration of Ohio’s execution protocol.”

Ground 28

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Equal
Protection Clause of the Fourteenth Amendment.”

Ground 29

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Due
Process Clause of the Fourteenth Amendment.”

Ground 30

“Chinn’s execution by lethal-injection (sic) under Ohio law will violate the Eighth
Amendment because of his unique, individual physical and/or mental
characteristics.

(Motion, ECF No. 120-1, PageID 1801-02.)

Analysis

The Warden’s Motion to Dismiss is directed to Chinn’s Second Amended Petition. The
Motion is technically moot because Chinn proposes to replace the Second Amended Petition
with a Third Amended Petition and it is respectfully recommended that the Motion to Dismiss be
DENIED on that basis.
The Warden repeats in her opposition to the Motion to Amend the arguments based on
Glossip, supra, that she makes in Motion to Dismiss (Opposition, ECF No. 125).

For the

reasons already given in other recently-decided motions calling for application of Glossip, the
Magistrate Judge concludes that Chinn’s Proposed Third Amended and Supplemental Petition
does not adequately plead claims cognizable in habeas corpus in light of the fact that Chinn is
also a plaintiff in In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016. See Landrum v.

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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); and O’Neal v. Jenkins, 2015 U.S. Dist. LEXIS
121376 (S.D. Ohio Sept. 11, 2015). In summary, the Magistrate Judge has concluded that the
expansive reading of Adams he previously relied on is no longer tenable in light of Glossip, but
that death row petitioners may still be able to properly plead habeas claims related to lethal
injection protocols.
Based on the reasoning in those decisions, the Motion for Leave to File a Third Amended
and Supplemental Petition is DENIED without prejudice to its renewal not later than October 9,
2015. In any renewed motion, Chinn must show clearly how any proposed new claims differ
from claims made or proposed to be made in the In re Ohio Execution Protocol Litig. case and
relate them to Ohio’s lethal injection protocol as amended June 29, 2015. For reasons already
given in the prior decisions, the Court hopefully requests Petitioner’s counsel to avoid using the
label “LI-habeas claims.”

September 23, 2015.
s/ Michael R. Merz
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendations are based in whole or in part upon matters occurring of record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the
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assigned District Judge otherwise directs. A party may respond to another party=s objections
within fourteen days after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638
F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 153-55 (1985).

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