Chinn v. Warden Mansfield

Filing 169

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS - Having reconsidered both Petitioner's proposed Hurst claims and the Warden's Objections to Petitioner's Adams III claims, the Magistrate Judge remains persuaded of his original positions: the Hurst claims should not be allowed, but the Adams III claims should. Objections to R&R due by 6/5/2017. Signed by Magistrate Judge Michael R. Merz on 5/22/2017. (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.

SECOND SUPPLEMENTAL REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on recommittal by Chief Judge Sargus
(ECF No. 166). The Recommittal Order encompasses Magistrate Judge decisions on proposed
amendments to the Petition to add claims under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616
(2016), and under Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June 13, 2016).1

Proposed Hurst Claims

The Magistrate Judge has denied Petitioner’s Motion to Amend to add claims under

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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.
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Hurst (Order, ECF No. 148) and adhered to that conclusion2 on a previous recommittal (ECF No.
159).
Chinn objects that it is unreasonable to deny as futile an amendment to add a Hurst claim
on Teague v. Lane grounds when the United States Supreme Court has not yet ruled that Hurst is
not retroactive (Objections, ECF No. 164, PageID 10110). However, the Hurst retroactivity
question is not reserved to the Supreme Court. Like other Supreme Court case law, it must be
applied by the lower courts as best they can until the Supreme Court says something definitive.
Chinn relies on an unpublished decision allowing an amendment to add a claim under
Hall v. Florida, 134 S.Ct. 1986 (2014), Sample v. Carpenter, 2014 U.S. Dist. LEXIS 180618
(W.D. Tenn. Oct. 20, 2014). Judge Lipman concluded that the Sixth Circuit’s decision in Van
Tran v. Colson, 764 F.3d 594 (6th Cir. 2014), made it at least arguable that Hall applied
retroactively. It appears the logic of that conclusion is that Hall recognized a substantive
constitutional right which would be retroactively applicable on collateral reviews just as its
progenitor, Atkins v. Virginia, 536 U.S. 304 (2002), is. Hurst is not a new substantive right, but
rather speaks to the procedure in capital cases, requiring application of the other branch of
Teague v. Lane. And Judge Lipman’s decision does support this Court’s conclusion that the
retroactivity decision is to be made in the first instance in the District Court.
Chinn also objects that it is unreasonable to deny an amendment to add a Hurst claim
when the state courts might reach a different conclusion on retroactivity. Prior opinions already
deal with findings of retroactivity in Delaware and Florida on the basis of their state laws of
retroactivity. The state law of retroactivity has no bearing on a Teague v. Lane question which is
purely a question of federal law. Petitioner continues to rely on the decision without opinion in

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With a modification to recognize that Chinn’s Hurst claim is distinct from a number of others filed in this Court at
the same time.

2

State v. Kirkland, 145 Ohio St. 1455 (2016). In response the Warden cites numerous cases in
which Hurst has been argued to the Ohio Supreme Court and rejected (Response, ECF No. 167,
PageID 10133.)
Petitioner’s arguments on the Hurst claim remain unpersuasive.

Proposed Lethal Injection Invalidity Claims

Chinn moved to amend to add lethal injection invalidity claims under Adams III
(Renewed Motion, ECF No. 155). The Warden opposed the Motion on the basis that the
proposed claims were not cognizable in habeas corpus and were time barred (ECF No. 156). The
Magistrate Judge found the claims were cognizable under Adams III (Decision and Order, ECF
No. 160, PageID 10097).
On the statute of limitations question, the Warden’s argument was one paragraph long
(ECF No. 156, PageID 10059) and the Petitioner offered an eleven-page reply (ECF No. 158,
PageID 10067-77). The Magistrate Judge analyzed Petitioner’s position as consistent with the
long-term strategy of capital litigants in this Court to have simultaneously pending habeas and
civil rights cases raising substantively parallel claims and, to that end, to attempt to collapse the
procedural differences between habeas and civil rights litigation. While the Magistrate Judge
rejected that analysis, the Decision concluded that equitable consideration should be given to the
confused state of the law under the Adams decisions:
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
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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.
(Decision, ECF No. 160, PageID 10103).

Cognizability

The Warden first objects that the Magistrate Judge has erred as a matter of law in finding
Chinn’s proposed new lethal injection invalidity grounds are cognizable in habeas corpus.
Having recited the history of the Adams v. Bradshaw litigation, including the intervening
Supreme Court decision in Glossip v. Gross, 135 S.Ct. 2726 (2015), the Magistrate Judge
concluded that
[T]he current state of the law in the Sixth Circuit 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 [to a particular death row inmate] 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.’
(Decision, ECF No. 160, PageID 10094-95).
In place of that reading, the Warden argues the “operative passage” in Adams III is a
single sentence: “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.”
(Objections, ECF No. 165, PageID 10120, quoting Adams III, at 321.) The Warden summarizes:

This single sentence formulation by the Adams III Court of what is
an appropriate pleading in habeas is simple, basic, and not
complicated. It means what it says, and no more. This passage in
Adams III is fairly read to say “challenges … [to] a particular lethal
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injection protocol” are not cognizable in habeas. This rule is easy
to read and easy to understand.
Id. at PageID 10121. The Magistrate Judge agrees with the Warden that habeas corpus will not
lie to challenge “a particular lethal injection protocol.” But that is not what Chinn seeks to do.
Rather, he attempts to assert a general enough claim: all lethal injection protocols that Ohio has
or may have would, if used on me, deprive me of my constitutional rights. That is, he does not
propose to challenge only a particular protocol, but any possible protocol, including the ones
already adopted.
Adams III leaves open many questions about the relation of § 1983 and habeas capital
litigation. For example, while the Adams III court contemplated that evidence gathered in a §
1983 case could be used in the parallel habeas case, it did not discuss how that squares with
Cullen v. Pinholster, 563 U.S. 170 (2011). As the undersigned has held elsewhere, it did not
elide all the procedural distinctions between habeas and civil rights litigation.

But it did

authorize a “general enough” challenge in habeas, and that is what Chinn has made.

Statute of Limitations

The Decision rejected Chinn’s argument that the AEDPA one-year statute of limitations
begins to run anew every time Ohio amends its lethal injection protocol or indeed every time the
new evidence against lethal injection reaches “a tipping point” or becomes “massive” enough.
That argument is now being advanced by most of the capital habeas petitioners on this Court’s
docket. The argument was rejected because, again, it collapses the procedural distinctions
between habeas corpus and civil rights litigation and would render the statute of limitations
meaningless for lethal injection claims.

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Despite rejecting this argument, the Magistrate Judge conceded it had allowed that
interpretation under Adams I and concluded the statute should be equitably tolled to allow the
pending amendments (Decision, ECF No. 160, PageID 10102).
The Warden asserts this was error as a matter of law because “[t]he purpose of equitable
tolling is to excuse a petitioner from inaction, . . .” (Objections, ECF No. 165, PageID 10123,
(emphasis in original)). The Warden relies on Holland v. Florida, 560 U.S. 631 (2010), the case
in which the Supreme Court explicitly recognized equitable tolling could excuse a failure to file
within § 2244(d)’s one year. The Warden asserts a habeas petitioner is “‘entitled to equitable
tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently and (2) that some
extraordinary circumstance stood in his way’ and prevented timely filing.” (Objections, ECF
No. 165, PageID 10125, quoting Holland, 560 U.S. at 649, quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005).
Contrary to the Warden’s reading, Holland does not speak to excusing only inaction.
Rather, it requires a petitioner to prove he has been pursuing his rights diligently, and the
Objections themselves recite all that Chinn has done in pursuing his lethal injection invalidity
claims. The Warden also cites law to the effect that relying on bad advice from an attorney is not
an excusing extraordinary circumstance outside a party’s control, but here it is the confused state
of the law (or at least of the Magistrate Judge’s mind about the law) that is the relevant
extraordinary circumstance cited in the Decision.
In recognizing the application of equitable tolling to habeas cases, the Holland court
spoke generally to the uses of equity jurisprudence:
We have said that courts of equity "must be governed by rules and
precedents no less than the courts of law." Lonchar v. Thomas, 517
U.S. 314, 323 (1996) (internal quotation marks omitted). But we
have also made clear that often the "exercise of a court's equity
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powers . . . must be made on a case-by-case basis." Baggett v.
Bullitt, 377 U.S. 360, 375 (1964). In emphasizing the need for
"flexibility," for avoiding "mechanical rules," Holmberg v.
Armbrecht, 327 U.S. 392, 396 (1946), we have followed a tradition
in which courts of equity have sought to "relieve hardships which,
from time to time, arise from a hard and fast adherence" to more
absolute legal rules, which, if strictly applied, threaten the "evils of
archaic rigidity," Hazel-Atlas Glass Co. v. Hartford-Empire Co.,
322 U.S. 238, 248 (1944). The "flexibility" inherent in "equitable
procedure" enables courts "to meet new situations [that] demand
equitable intervention, and to accord all the relief necessary to
correct . . . particular injustices." Ibid. (permitting postdeadline
filing of bill of review).
Holland, 560 U.S. 631, 649-50 (2010)(parallel citations omitted).
The Decision concluded there would be no prejudice to the Warden by allowing the filing
because the State would be obliged to litigate the same claims in the pending lethal injection
protocol case (Case No. 2:11-cv-1016). The Warden objects that “being compelled to engage in
pointless litigation should be viewed as ‘prejudice,’” (Objections, ECF No. 165, PageID 10126)
but cites no authority for that proposition. The point of the Decision is to draw a “line in the
sand/line on the docket” rejecting Chinn’s and other capital litigants’ argument about newly
arising claims/evidence, but taking responsibility for the confusion to date. The Magistrate
Judge regrets that that logic was either not evident to the Warden’s counsel or did not sufficiently
commend itself. In any event, the amendment will not delay Chinn’s execution which is not now
scheduled at least through March 2021.

Conclusion

Having reconsidered both Petitioner’s proposed Hurst claims and the Warden’s
Objections to Petitioner’s Adams III claims, the Magistrate Judge remains persuaded of his

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original positions: the Hurst claims should not be allowed, but the Adams III claims should.

May 22, 2017.
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. 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
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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