Chinn v. Warden Mansfield

Filing 160

DECISION AND ORDER - Petitioner's Renewed Motion for Leave to File an Amended Petition (Renewed Motion, ECF No. 155) is GRANTED. Not later than April 24, 2017, Chinn may file a Supplemental Petition including the four proposed Grounds for Re lief at Exhibit 1 to the Renewed Motion (ECF No. 155-1). However, the supplemental Grounds for Relief shall be numbered Thirty-One, Thirty-Two, Thirty-Three, and Thirty-Four. Petitioner shall also state in the Supplemental Petition whether any of his previous lethal injection invalidity Grounds for Relief should now be dismissed as moot. Signed by Magistrate Judge Michael R. Merz on 4/11/2017. (kpf) Modified on 4/12/2017 to change document type (kpf).

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

:

- vs -

Case No. 3:02-cv-512
Chief Judge Edmund A. Sargus, Jr.
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 (Renewed Motion, ECF No. 155). The Warden opposes the
Motion (Opposition, ECF No. 156) and Chinn has filed a Reply in Support (ECF No. 158).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within a
Magistrate Judge’s decisional authority. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist.
LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.).

Procedural History

On January 30, 1989, Petitioner Davel Chinn murdered Brian Jones after having
kidnapped him outside an “adult” bookstore on South Ludlow Street in Dayton. Chinn was
indicted March 3, 1989, and charged, inter alia, with aggravated murder with capital
1

specifications. He was found guilty on all counts by a petit jury and sentenced to be executed.
On direct appeal, the Second District affirmed1 the conviction but reversed the death sentence
and remanded for resentencing State v. Chinn, 1991 Ohio App. LEXIS 6497 (2nd Dist. 1991).
On December 4, 1994, Chinn was resentenced to be executed and again appealed to the Second
District which again remanded for new sentencing proceedings. State v. Chinn, 1996 Ohio App.
LEXIS 2530 (2nd Dist. 1996). On remand Chinn was sentenced to death for a third time and this
time the Second District affirmed. State v. Chinn, 1997 Ohio App. LEXIS 3614 (2nd Dist. 1997).
The Ohio Supreme Court affirmed. State v. Chinn, 85 Ohio St. 3d 548 (1999), cert den., 528
U.S. 1120 (2000). After an evidentiary hearing, the court of appeals affirmed denial of Chinn’s
petition for post-conviction relief. State v. Chinn, 1998 Ohio App. LEXIS 3857 (2nd Dist. 1998),
appellate jurisdiction declined, 93 Ohio St. 3d 1473 (2001).
Chinn filed his original Petition in this Court on November 4, 2002 (ECF No. 3). Among
the twenty grounds for relief, there is no claim related to lethal injection. On October 14, 2011,
the undersigned recommended the Petition be dismissed with prejudice (ECF No. 60); that
Report as supplemented on recommittal (ECF No. 86) remains pending before Chief Judge
Sargus.
On April 6, 2012, the Court granted Chinn leave to amend to add the following claims:
Twenty-First Ground for Relief: Chinn’s execution will violate
the Eighth Amendment because Ohio’s lethal injection protocol
will result in cruel and unusual punishment.
Twenty-Second Ground for Relief: Chinn’s execution will
violate the Fourteenth Amendment because Ohio’s lethal injection
protocol will deprive him of equal protection of the law.
(ECF No. 71, PageID 1105.) Amendment was granted over the Warden’s statute of limitations

1

For murder charges arising before January 1, 1995, direct appeal was first to the Ohio intermediate courts of
appeals.

2

objection because the Warden “offers no analysis of why this claim did not arise when Petitioner
asserts it did, to wit, when the lethal injection protocol being challenged was adopted by the State
on September 18, 2011.” Id. at 1106. The claims were found cognizable under Adams v.
Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011)(Adams I).2
On March 25, 2014, in the wake of the Dennis McGuire execution, the Court agreed to
stay consideration of Chinn’s lethal injection claims (ECF No. 96). Chinn’s time to move to
amend was extended to April 13, 2015 (ECF No. 110). After the Court denied an additional one
year extension (ECF No. 113), Chinn filed a Second Amended Petition in April 13, 2015 (ECF
No. 114) which included the following claims:
TWENTY-FIRST GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE SUPREMACY CLAUSE.
TWENTY-SECOND GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION 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.
TWENTY-THIRD GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE EIGHTH AMENDMENT BECAUSE IT
CAUSES A LINGERING DEATH.
TWENTY-FOURTH GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE EIGHTH AMENDMENT BECAUSE
LACK OF LEGALLY AVAILABLE, EFFECTIVE DRUGS TO
CONDUCT LETHAL-INJECTION EXECUTIONS WILL
2

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.

3

RESULT IN THE ARBITRARY AND
IMPOSITION OF THE DEATH PENALTY.

CAPRICIOUS

TWENTY-FIFTH GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL
BE
A
HUMAN
EXPERIMENT
ON
A
NONCONSENTING PRISONER IN VIOLATION OF THE
FOURTEENTH AMENDMENT.
TWENTY-SIXTH GROUND FOR RELIEF: CHINN’S
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.
TWENTY-SEVENTH GROUND FOR RELIEF: CHINN’S
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.
TWENTY-EIGHTH GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE EQUAL PROTECTION CLAUSE OF
THE FOURTEENTH AMENDMENT.
TWENTY-NINTH GROUND FOR RELIEF: CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE DUE PROCESS CLAUSE OF THE
FOURTEENTH AMENDMENT.
THIRTIETH
GROUND
FOR
RELIEF:
CHINN’S
EXECUTION BY LETHAL INJECTION UNDER OHIO LAW
WILL VIOLATE THE EIGHTH AMENDMENT BECAUSE OF
HIS UNIQUE, INDIVIDUAL PHYSICAL AND/OR MENTAL
CHARACTERISTICS.
Id. at PageID 1658, 1673, 1677, 1679, 1681, 1684, 1685, 1686, 1689, and 1691.
On August 3, 2015, Chinn sought leave to file a Third Amended and Supplemental
Petition (ECF No. 120). Another such motion was filed November 9, 2015 (ECF No. 133) and
4

eventually denied without prejudice to renewal within thirty days of the mandate in the Stanley
Adams habeas corpus litigation (ECF No. 144). The instant Motion timely followed on March 8,
2017 (ECF No. 155).

Proposed Grounds for Relief

Chinn now requests permission to plead the following Grounds for Relief:
TWENTY-FOURTH GROUND FOR RELIEF: The State of
Ohio cannot constitutionally execute Petitioner because the only
manner available under the law to execute him violates his Eighth
Amendment rights.
TWENTY-FIFTH GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Petitioner because the only manner
available for execution violates the Due Process Clause or the
Privileges or Immunities Clause of the Fourteenth Amendment.
TWENTY-SIXTH GROUND FOR RELIEF: The State of Ohio
cannot constitutionally execute Petitioner because the only manner
of execution available for execution under Ohio law violates the
Equal Protection Clause of the Fourteenth Amendment.
TWENTY-SEVENTH GROUND FOR RELIEF: The State of
Ohio cannot constitutionally execute Petitioner because Ohio’s
violations of federal law constitute a fundamental defect in the
execution process, and the only manner of execution available for
execution depends on state execution laws that are preempted by
federal law.
(ECF No. 155-1, PageID 9946-47.)
Chinn’s Renewed Motion does nothing to relate his proposed new Grounds for Relief to
his prior lethal injection claims. Are they intended to replace or supplement claims previously
pled? Counsel’s choice to repeat numbers used in prior pleadings is confusing to the reader (at
least this reader).

5

Instead Chinn concentrates on showing that his proposed claims are cognizable in habeas
under Adams III (Renewed Motion, ECF No. 155, PageID 9936-41). The Renewed Motion also
deals with the timeliness question by asserting “[i]t is by now well-established that a change in
Ohio’s lethal injection protocol gives rise to new claims and thus warrants amendment of a
habeas petition.” Id. at PageID 9941, quoting this Court’s Order at ECF No. 96, PageID 1493.
The Warden opposes the Renewed Motion on the grounds the claims are not cognizable
in habeas and are time-barred under the AEDPA statute of limitations, 28 U.S.C. §
2244(d)(Opposition, ECF No. 156, PageID 10059-60).
Chinn replies that the Warden’s cited authorities against cognizability are distinguishable
(Reply, ECF No. 158, PageID 10068-72). As to timeliness, Chinn claims the Warden has not
sufficiently asserted a statute of limitations defense and has therefore forfeited it. Id. at 1007273. Assuming the defense is sufficiently raised, Chinn asserts that, if he “has shown practices or
procedures from the relevant amended protocol—here, the October 7, 2016 execution protocol—
that could not have been discovered previously, then claims brought within one year of those
factual predicates are not time-barred.”

Analysis

Davel Chinn is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv1016. That case seeks to permanently enjoin Ohio from executing Chinn and most other Ohio
death row inmates under the current lethal injection protocol, which was adopted October 7,
2016. That protocol has already been the subject of extensive litigation, resulting in an order
preliminarily enjoining its intended use in the executions of Ronald Phillips, Raymond Tibbetts,
6

and Gary Otte. In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S.
Dist. LEXIS 11019 (S.D. Ohio Jan 26, 2017), aff’d., ___ F.3d ___, 2017 U.S. App. LEXIS 5946
(6th Cir. Apr. 6, 2017).
A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages
over a habeas corpus action. Among other things, it is not subject to the second-or-successive
limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of
focused on what happened in the state courts, it is not limited in the introduction of evidence
imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011). On
the other hand, introduction of evidence discovered in a § 1983 lethal injection case appears to
be admissible in a habeas corpus lethal injection case, per Adams III, where that conclusion is
assumed without any discussion of Pinholster.
Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA")
vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district
court could not grant release from confinement in a § 1983 action; to do so would frustrate the
habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973) (Notably, Justice
Brennan, the major architect of expansion of habeas in the 1960’s, dissented.) It was in Nelson
v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of
execution claim could be brought in a § 1983 case, over the objection of state officials who
insisted that such a claim had to be brought in habeas corpus and would, in Nelson’s case, have
been subject to the second-or-successive requirement imposed by the AEDPA. The Court
unanimously concluded that, because Nelson’s challenge to the method of execution (a vein cutdown procedure) did not challenge his actual death sentence, it could be brought in a § 1983
action.

7

Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of
Case No. 2:11-cv-1016, was filed December 8, 2004, and references an earlier filing in Case No.
2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in
2:11-cv-1016, Cooey remains pending.

The same organizations of attorneys who provide

representation to plaintiffs in 2:11-cv-1016 – the Capital Habeas Units of the Offices of the
Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public
Defender’s Office – also represent most of the capital habeas corpus petitioners in this Court.
Thus the litigation context provides maximal opportunities for coordination of strategy. To this
Court’s eye, those opportunities are never missed; if there are internal disagreements among the
capital petitioners’ bar, they are not apparent to this Court.
Petitioners’ bar has had an apparent strategy for some years to have parallel habeas and §
1983 actions pending simultaneously on behalf of the same inmate and raising substantively
parallel claims. Implementation of this strategy has been supported by the series of decisions of
the Sixth Circuit in Stanley Adams’ habeas corpus case from the Northern District of Ohio,
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 Adams I the circuit court held, over Ohio’s objection, that a challenge to the method of
lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say,
availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of
action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add
lethal injection claims and indeed treated those claims as newly arising whenever Ohio’s lethal
injection protocol was amended. This reading informed the Magistrate Judge’s allowance of the

8

Second Amended Petition as upheld by Judge Barrett, supra, at pages 2-3.
Then the Supreme Court appeared to call this Court’s practice into question with its
decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze [v. Rees, 533 U.S.
35 (2008)] 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(emphasis added).

Changing course, this Court concluded the “must be

brought” language precluded what it had been doing under Adams I. Then, in Adams II as
clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I:
Adams challenged the constitutionality of lethal injection on direct
appeal, asserting that "[d]eath by lethal injection constitutes cruel
and unusual punishment and denies due process under the state and
federal constitutions." The Ohio Supreme Court rejected this
claim, explaining it had "previously rejected similar arguments."
Adams, 817 N.E.2d at 56 (citing State v. Carter, 89 Ohio St. 3d
593, 2000 Ohio 172, 734 N.E.2d 345, 358 (Ohio 2000)). Adams
again challenged the constitutionality of execution by lethal
injection in his federal habeas corpus petition. The district court
denied this claim, noting that "lethal injection is the law of the
republic. No federal court has found the lethal injection protocol to
be unconstitutional." Adams, 484 F. Supp. 2d at 796 (citation
omitted).
As an initial matter, we note our recent holding that lethal injection
does not violate the Constitution. See Scott v. Houk, 760 F.3d 497,
512 (6th Cir. 2014) ("Simply put, lethal injection does not violate
the Constitution per se . . . ."). In Scott, a similar challenge to the
implementation of lethal injection was raised, as a panel of this
9

court observed that "Scott's petition alleges that lethal injection
'inflicts torturous, gratuitous and inhumane pain, suffering and
anguish upon the person executed.'" Id. at 511. Accordingly, the
Ohio Supreme Court's denial of Adams's challenge to the
constitutionality of lethal injection as a means of execution did not
constitute an unreasonable application of Supreme Court
precedent.
The Supreme Court's decision in Glossip does not alter our
precedent. Glossip concerned a 42 U.S.C. § 1983 action
challenging Oklahoma's execution protocol. . . .
Lastly, notwithstanding the warden's observation that a method-ofexecution challenge can only be brought in a § 1983 action under
Hill v. McDonough, 547 U.S. 573 (2006), Adams can bring this
claim in a § 2254 proceeding. As the warden submits, Glossip
stated that Hill "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." Glossip,
135 S. Ct. at 2738. As we observed in Adams, 644 F.3d at 483,
however, Adams's case is distinguishable from Hill because
Adams argues that lethal injection cannot be administered in a
constitutional manner, and his claim "could render his death
sentence effectively invalid." Cf. Hill, 547 U.S. at 580. Our
decision in Adams is consistent with the Supreme Court's
reasoning in Nelson, which suggested that, under a statutory
regime similar to Ohio's, "a constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself." 541 U.S. at 644. Thus,
to the extent that Adams challenges the constitutionality of lethal
injection in general and not a particular lethal-injection protocol,
his claim is cognizable in habeas. Adams, 644 F.3d at 483.
However, as the Supreme Court observed in Glossip, a challenge
to a particular procedure that concedes the possibility of an
acceptable alternative procedure is properly brought in a § 1983
action. Glossip, 135 S. Ct. at 2738.
Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th Cir. 2016), cert den. sub nom. Adams v. Jenkins,
137 S. Ct. 814, 196 L. Ed. 2d 602 (2017). By denying certiorari, the Supreme Court passed up a
chance to clarify the meaning of Glossip. Denial of certiorari triggered issuance of the mandate
which then set the deadline for the instant Renewed Motion.
As this Magistrate Judge understands it, the current state of the law in the Sixth Circuit
10

after Adams III is that habeas corpus will lie to challenge “the constitutionality of lethal injection
in general” to wit, that “lethal injection cannot be administered in a constitutional manner, and
[that] claim ‘could render his death sentence effectively invalid.’” Adams III, quoting Hill v.
McDonough, 547 U.S. at 580. Although the Adams court did not say so explicitly, it is obvious
the same claim can also be made in a § 1983 action seeking permanent injunctive relief. Indeed
Stanley Adams has done so and is a plaintiff in In re: Ohio Execution Protocol Litig., Case No.
2:11-cv-1016. Of course as a § 1983 plaintiff, a death row inmate must plead a constitutional
alternative method of execution. Glossip, supra.
The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was
enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
If the underlying facts or circumstances relied upon by a plaintiff
may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits. In the absence of any
apparent or declared reason -- such as undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice
to the opposing party by virtue of any allowance of the
amendment, futility of amendment, etc. -- the leave sought should,
as the rules require, be "freely given."
371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6th Cir. 1997)(citing Foman
standard).
In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule
12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th Cir. 1992); Martin v.
Associated Truck Lines, Inc., 801 F.2d 246, 248 (6th Cir. 1986); Marx v. Centran Corp., 747 F.2d
1536 (6th Cir. 1984); Communications Systems, Inc., v. City of Danville, 880 F.2d 887 (6th Cir.
1989); Roth Steel Products v. Sharon Steel Corp., 705 F.2d 134, 155 (6th Cir. 1983);

11

Neighborhood Development Corp. v. Advisory Council, 632 F.2d 21, 23 (6th Cir. 1980); United
States ex rel. Antoon v. Cleveland Clinic Found., 978 F. Supp. 2d 880, 887 (S.D. Ohio
2013)(Rose, J.); William F. Shea, LLC v. Bonutti Research Inc., 2011 U.S. Dist. LEXIS 39794,
*28 (S.D. Ohio March 31, 2011) (Frost, J.).
Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co.,
918 F.2d 1255, 1259 (6th Cir. 1990); Bach v. Drerup, 2012 U.S. Dist. LEXIS 35574, *1
(Ovington, M.J.); Crawford v. Roane, 53 F.3d 750, 753 (6th Cir. 1995), cert denied, 517 U.S. 112
(1996)(amendment should be denied if it “is brought in bad faith, for dilatory purposes, results in
undue delay or prejudice to the opposing party, or would be futile.”). In Brooks v. Celeste, 39
F.3d 125 (6th Cir. 1994), the court repeated and explicated the Foman factors, noting that
“[d]elay by itself is not a sufficient reason to deny a motion to amend. Notice and substantial
prejudice to the opposing party are critical factors in determining whether an amendment should
be granted. Id. at 130, quoting Head v. Jellico Housing Authority, 870 F.2d 1117, 1123 (6th Cir.
1989). These considerations apply as well in capital habeas corpus cases. Coe v. Bell, 161 F.3d
320, 341 (6th Cir. 1998), quoting Brooks.

Proposed Grounds Twenty-Four through Twenty-Seven

Proposed Grounds Twenty-Four through Twenty-Seven are general lethal injection
invalidity claims. Ground Twenty-Four is an Eighth Amendment claim. Ground Twenty-Five is
a Due Process and Privileges or Immunities claim. Ground Twenty-Six is an Equal Protection
claim and Ground Twenty-Seven is a Supremacy Clause or pre-emption claim.

12

As proposed to be pleaded, these Grounds for Relief fit within the cognizability-inhabeas window recognized in Adams III. That is to say, they are not claims that lethal injection
executions are per se unconstitutional; such a claim would be precluded by precedent. As this
Court understands the Sixth Circuit’s classification in Adams I, II, and III, a per se claim would
read something like “It is unconstitutional for any American State to execute anyone by lethal
injection.” Instead, these claims are general in the sense that they assert “It is and will always be
unconstitutional for the State of Ohio to execute Mr. Chinn by any lethal injection procedure and
because Ohio authorizes executions only by lethal injection, his death sentence is invalid.”
The Warden’s objection that these claims are not cognizable in habeas corpus is not well
taken. The Warden’s statute of limitations objection is dealt with below.

The Statute of Limitations

AEDPA imposed a one-year statute of limitations on habeas corpus claims. 28 U.S.C. §
2244(d). The Warden raises a statute of limitations defense in very brief fashion:
Second, to the extent the proposed amended claims are construed
as a properly pled general challenge to lethal injection, the one[]year statute of limitations under 28 U.S.C. §2244(d) has long ago
expired, where the state court judgment Chinn attacks has been
final for more than two decades. Turner v. Hudson, No. 2:07-cv595, 2016 WL 212961, *8-10 (S.D. Ohio Jan. 19, 2016); In re:
Lawrence Landrum, Case No. 16-3151, at pg. 2-3 (6th Cir. Feb.
13, 2017.

(Opposition, ECF No. 156, PageID 10059.) This one-paragraph defense has elicited an elevenpage reply (Reply, ECF No. 158, PageID 10067-77), the parts of which are considered
separately.
13

The Limitations Defense has not been Forfeited

Chinn begins by asserting that the limitations defense, being non-jurisdictional, is subject
to forfeiture and claims the Warden has not sufficiently asserted such a defense, thereby
forfeiting it. Id. at PageID 10072-73. While the limitations defense in habeas can be forfeited,
no case authority supports the proposition that failure to raise a limitations defense in objection
to a motion to amend constitutes such a forfeiture. To put it another way, just because a
defendant can raise any available Fed. R. Civ. P. 12(b) defense in opposing a motion to amend
does not logically imply that the defendant has forfeited the defense by failing to raise it at that
stage.
The statute of limitations is an affirmative defense which is forfeited if not pleaded as
required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on
limitations grounds when conducting an initial review under Rule 4 of the Rules Governing §
2254 Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense
even after an answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). In
Wood v. Milyard, 566 U.S. 463 (2012), the Supreme Court held that courts of appeals have
authority to consider a forfeited timeliness defense sua sponte.
Petitioner’s objection that Respondent has forfeited a limitations defense is
OVERRULED.

14

Newly Discovered Evidence versus Newly Arising Claims

Next Chinn asserts the authority cited by Respondent is inapposite (Reply, ECF No. 158,
PageID 10073).
In In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported
Order; copy at ECF No. 274-1, PageID 3961), the Sixth Circuit held that Landrum’s proposed
lethal injection habeas claim required permission to proceed under 28 U.S.C. § 2244(b) which
the circuit court refused to give. Landrum had argued “that he could not have raised his lethalinjection challenge until after the state adopted a revised protocol on September 18, 2011.” Id. at
3. The circuit court rejected that argument, holding “Landrum has not identified practices or
procedures from the September 2011 protocol that amount to a factual predicate that could not
have been discovered previously. See 28 U.S.C. § 2244(b)(2)(B).”
Chinn asserts this statement implies that if a capital habeas petitioner does show
practices or procedures from the relevant amended protocol—here,
the October 7, 2016 execution protocol—that could not have been
discovered previously, then claims brought within one year of
those factual predicates are not time-barred. That is precisely what
Chinn has done in his renewed motion and proposed grounds for
relief.
(Reply, ECF No. 158, PageID 10073-74.) At ¶¶ 63-67 (ECF No. 155-1, PageID 9960-61) of his
proposed amended claims, Chinn recites facts related to the October 7, 2016, protocol. At ¶¶ 7885 (PageID 9963-65) Chinn makes allegations about the use of the drug midazolam as the first
drug in the alternative in the current protocol which Ohio intended to use to execute Ronald
Phillips, Raymond Tibbetts, and Gary Otte. Among those allegations are asserted problems with
the use of midazolam to execute Dennis McGuire. Id. at ¶¶ 86-87; Clayton Lockett,¶¶ 88-89;
and Joseph Wood ¶¶ 90-91. Dennis McGuire was executed January 16, 2014; Clayton Lockett
15

was executed April 29, 2014; and Joseph Wood was executed July 23, 2014. None of these dates
are mentioned in either the Renewed Motion or the proposed amendments. The relevant facts
about use of midazolam in these executions were not newly discovered within one year before
March 8, 2017. They have been thoroughly vetted in the § 1983 Protocol Litigation case.3 But
that is not enough for Petitioner’s counsel who want these facts to count as newly discovered
factual predicates for his habeas lethal injection claims, thus extending the start date for the
statute of limitations under 28 U.S.C. § 2244(d)(1)(D). But wait. All of these facts had been
discovered not later than July 23, 2014.4 How can they be newly arising factual predicates for
habeas lethal injection claims made in March 2017?
Part of the difficulty with Chinn’s position is that it seems to stem from the drive of his
counsel to completely conflate habeas corpus and § 1983 procedure. But Adams and Landrum
do not do that. While those cases do support counsels’ strategy to have substantively parallel
habeas and § 1983 claims pending at the same time and to use evidence obtained in the § 1983
case in support of the habeas claims,5 the Sixth Circuit has not elided the procedural differences
between these two types of cases.
If Chinn’s cognizable-in-habeas general lethal injection claims did not arise when his
attorneys discovered the facts about midazolam sometime between January 2014 and March 8,
2017, when did they arise? Chinn filed his original Petition in this case in 2002 after lethal
injection had become an approved method of execution in Ohio. In 2001 it became the exclusive
method. It was still the exclusive method in 2004 when the Supreme Court decided in Nelson v.
Campbell that method of execution claims could be brought in a § 1983 case. Although Chinn

3

Or at least thoroughly enough for a preliminary injunction hearing.
All three of these executions were widely covered in the press and thus would have come to counsels’ attention
quickly. McGuire was represented by Raglin’s counsel.
5
Adams III expressly says this may be done without discussing any possible impact of Pinholster.
4

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never became a plaintiff in Cooey v. Taft, 2:04-cv-1156, counsel who represent him here were
counsel to other death row inmates in that case. He is a plaintiff in In re: Ohio Execution
Protocol Litig., and has been since November 14, 2011. The original Complaint in that case
included claims of Eighth and Fourteenth Amendment violations (First Claim), due process
violations (Second Claim), and equal protection violations (Fourth Claim).

If those

constitutional violations had arisen for § 1983 purposes by the time that Complaint was filed,
why hadn’t they also arisen for habeas corpus purposes?
Of course, the Complaint in 2:11-cv-1016 has been amended many times since 2011. It
is perfectly appropriate for forward-looking civil rights litigation to be amended as the conduct
sought to be enjoined changes.
In light of Adams III, it would apparently be appropriate for Chinn to rely on new
evidence gathered in the § 1983 litigation to prove his habeas corpus claim that Ohio can never
constitutionally execute him by lethal injection. But gathering new evidence in support of a
habeas claim is different from concluding that a new habeas claim “arises” for limitations
purposes every time new evidence is discovered, even assuming due diligence in finding the new
evidence.
Chinn asserts repeatedly that Ohio’s adoption of a new lethal injection protocol starts the
statute of limitations running anew (Reply, ECF No. 158). He asserts he “could not have raised
these specific lethal-injection invalidity claims” until the new protocol was adopted on October
7, 2016. Id. Yet he never explains how this focus on a newly arising claim related to a specific
protocol is somehow consistent with his claims’ being general Ohio-can-never-constitutionallyexecute-me-by-lethal-injection claims. The Court has readily accepted the proposition that a
new protocol can generate a new § 1983 claim, but such claims are specific to the particular

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protocol. No matter how many times Chinn’s counsel repeat the mantra, new facts are not the
same as new habeas claims.

Equitable Tolling

Whether it fits comfortably within the equitable tolling doctrine or not, Chinn presents a
strong case that the Court should give some equitable consideration to the confused state of the
law during the time he has had cases pending in federal court. Until Adams I in 2011, it was
reasonable for counsel to understand that method of execution claims had to be brought in §
1983 proceedings. Following Adams I, this Court accepted the extension of the logic of that case
and of Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), that not only did new § 1983 claims
arise whenever the protocol was amended, but so did habeas claims on the same substantive
basis. On that basis, counsel could reasonably have concluded they had a year from adoption of
a new protocol to amend a client’s habeas petition to add claims “newly arising” under that new
protocol. Although this Court has now concluded on the basis of Adams III and Landrum that
the cognizability, second-or-successive, and limitations questions must be kept separate, capital
habeas petitioners should not be penalized for following the Court’s lead during that period
between Adams I and Adams III. And the Court must take full responsibility for the delay
between the Adams III decision and issuance of the mandate in that case, although it was urged
to that position by Petitioner’s counsel. The State of Ohio has not claimed any prejudice would
result from this approach since it will have to litigate the lethal injection invalidity question in
the § 1983 case in any event.

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Conclusion

To the extent set forth above, Chinn’s Renewed Motion is GRANTED. Not later than
April 24, 2017, Chinn may file a Supplemental Petition including the four proposed Grounds for
Relief at Exhibit 1 to the Renewed Motion (ECF No. 155-1). However, the supplemental
Grounds for Relief shall be numbered Thirty-One, Thirty-Two, Thirty-Three, and Thirty-Four.
Petitioner shall also state in the Supplemental Petition whether any of his previous lethal
injection invalidity Grounds for Relief should now be dismissed as moot.

April 11, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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