Chinn v. Warden Mansfield

Filing 205

REPORT AND RECOMMENDATIONS: FOURTH SUPPLEMENTAL MEMORANDUM ON PROPOSED AMENDMENTS- Based on McKinney, the Magistrate Judge again respectfully recommends that Petitioners Motion to Amend to add a claim under Hurst be denied. Objections to R&R due by 3/24/2020. Signed by Magistrate Judge Michael R. Merz on 3/10/2020. (kma)

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

District Judge Sarah D. Morrison
Magistrate Judge Michael R. Merz

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

FOURTH SUPPLEMENTAL MEMORANDUM ON PROPOSED
AMENDMENTS

This capital habeas corpus case is before the Court on Petitioner’s Notice of Additional
Authority (ECF No. 204). In the Notice, Chin notes the Court that one of his pending proposed
amendments – to add a Twenty-Third Ground for Relief based on Hurst v. Florida, 577 U.S.
___, 136 S.Ct. 616 (2016) – is subject to “relevant, recent controlling authority,” to wit,
McKinney v. Arizona, 589 U.S. ___, 140 S.Ct. 702 (2020)(Notice, ECF No. 204, PageID 10357).
The Magistrate Judge agrees with Petitioner that McKinney is relevant and controlling.
Relevant to the proposed amendment in this case, the Supreme Court held:
McKinney’s case became final on direct review in 1996, long
before Ring and Hurst. Ring and Hurst do not apply retroactively
on collateral review. See Schriro v. Summerlin, 542 U. S. 348, 358
(2004). Because this case comes to us on state collateral review,
Ring and Hurst do not apply.
140 S.Ct. at 75. Justice Ginsburg in dissent would have held that McKinney’s case was before
1

the Supreme Court on direct review; but even if her view on that point had prevailed, it would
not have changed the effect of McKinney on this case: Chin is plainly before this Court on
collateral review and Justice Ginsburg expresses no dissent from the general proposition laid
down in Teague v. Lane, 489 U.S. 288 (1989), and reinforced in Schriro that new rules of
constitutional law do not apply retroactively to cases on collateral review unless they fall within
one of the two exceptions adopted in Teague. McKinney, 140 S.Ct. at 77. Thus the position of
the undersigned 1 that Hurst is not to be applied retroactively in habeas corpus has now been
adopted by the Supreme Court.
Based on McKinney, the Magistrate Judge again respectfully recommends that
Petitioner’s Motion to Amend to add a claim under Hurst be denied.

March 10, 2020.
s/ Michael R. Merz
United States Magistrate Judge

Smith v. Pineda, 2017 WL 631410 (S.D.
Ohio Feb. 16, 2017)(Merz, M.J.); McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio
Feb. 15, 2017)(Merz, M.J.); Gapen v. Robinson, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug.
15, 2017)(Rice, D.J.); Davis v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep. 25,
2017)(Sargus, Ch. J.); Lindsey v. Jenkins, Case No. 1:03-cv-702 (S.D. Ohio Sep. 25,
2017)(Sargus, Ch. J.); Myers v. Bagley, Case No. 3:04-cv-174 (S.D. Ohio Sep.
12,2017)(Marbley, D.J.)(unreported; available in that case at ECF No. 126); and Robb v. Ishee,
Case No. 2:02-cv-535 (S.D. Ohio Sep. 12, 2017)(unreported; available in that case at ECF No.
213).
1

That has been the consistent position of the judges of this Court.

2

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. 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.

3