Conway, III v. Houk

Filing 292

DECISION AND ORDER DENYING MOTION TO AMEND 281 - Because Conway proposes to plead two grounds for relief, claims seventeen and eighteen, neither of which states a claim upon which habeas corpus relief can be granted, his Motion for Leave to File Second Amended Petition (ECF No. 281) is DENIED. Signed by Magistrate Judge Michael R. Merz on 6/19/2020. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JAMES T. CONWAY III,
Petitioner,

:

- vs -

Case No. 3:07-cv-345
District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

TIM SHOOP, Warden,
Chillicothe Correctional Institution 1,
:
Respondent.

DECISION AND ORDER DENYING MOTION TO AMEND

This capital habeas corpus case under 28 U.S.C. § 2254 is before the Court on
Petitioner’s Motion for Leave to for Leave to File Second Amended Petition (ECF No. 281).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within the
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.); McKnight v. Bobby, 2017 U.S. Dist.
LEXIS 63861 (S.D. Ohio Apr. 27, 2017)(Dlott, D.J.); Chinn v. Warden, 2020 U.S. Dist. LEXIS
94062 (S.D. Ohio May 29, 2020)(Morrison, D.J.).
The Motion purports to have attached a proposed Second Amended Habeas Petition, but
in fact Petitioner has filed that document without court permission (ECF No. 282). Because
court permission for such a filing is required and was not obtained, the Second Amended Petition

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The Court takes judicial notice that Tim Shoop has become the Warden at Chillicothe Correctional institution. He
is hereby substituted as Respondent herein pursuant to Fed.R.Civ.P. 25and the caption is ordered amended as shown.

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is STRICKEN.
The Warden opposes the Motion to Amend, summarizing his position as follows:
Where the state courts denied Conway’s third successive postconviction petition on purely procedural grounds, the scope of
habeas review is exceedingly narrow. Despite this, Conway
wrongly proposes to add scores of factual allegations and rewrite
his entire petition. The Court should deny this delaying tactic but
afford Conway leave to propose an appropriate amendment that
would appropriately follow the guidance from Habeas Rule 2 to
succinctly articulate an appropriate challenge to the procedural
denial by the state court.
(ECF No. 287, PageID 21540). Respondent apparently believes any amended petition in this
case should be limited to the grounds raised in the recently-completed state court successive
post-conviction litigation instead of embracing all claims that Conway now seeks to litigate in
this Court. He complains “[i]nstead of apprising the Court of his contentions that attack the
procedural default denial, Conway simply peppers the Doc. 282 proposed amended habeas petition
with the same time-worn allegations that have been repeatedly rejected over years and years and
years of state court litigation.” Id. at PageID 21543-44.
Respondent also faults the proposed second amended petition for not pleading cause and
prejudice to excuse any procedural defaults that the state courts may have enforced against Conway.
Id. at PageID 21544-46.

Petitioner replies by asserting a habeas petitioner is not obliged to anticipate an
affirmative defense in a petition, distinguishing the authority on which the Warden relies (Reply
ECF No. 291).

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Analysis

28 U.S.C. § 2242 provides that a habeas corpus petition may be amended “as provided in
the rules of procedure applicable to civil actions.” The applicable civil rule is Fed.R.Civ.P. 15.
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);
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 Reseach Inc., 2011 U.S. Dist. LEXIS 39794,
*28 (S.D. Ohio March 31, 2011) (Frost, J.).

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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.
It is not a valid objection to a motion to amend that the proposed amended pleading does
not anticipate and defend against an affirmative defense that has not yet been pleaded. Nor is it a
valid objection that a proposed amended habeas petition raises for review allegations that have
been rejected in the state courts, since it is this Court’s task to review those rejections.
Respondent has not argued, at least not as of yet, that any of Petitioner’s re-pleaded claims are
sufficiently new claims so as to be barred by the statute of limitations. Nor has Respondent
claimed Petitioner’s counsel have been dilatory or acted in bad faith.
Independent of Respondent’s claim relating to procedural default, the Magistrate Judge
has examined the proposed second amended petition for futility. Without prejudice to merits
review of any other the other proposed claims, the Magistrate Judge finds Conway’s proposed
Seventeenth and Eighteenth Claims for Relief fail to state claims upon which habeas corpus

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relief can be granted.
The proposed Seventeenth Claim for Relief reads “The Cumulative Effect of the Federal
Constitutional Errors Identified in this Petition Denied Conway A Fair Trial and Due Process
under the Fifth, Sixth, Eighth and Fourteenth Amendments.” (ECF No. 282, PageID 21392.
455. In the alternative, even if none of the individual grounds for
relief warrants the granting of habeas relief, then the cumulative
effect of those errors requires the vacation of Conway’s
convictions or sentences.
456. Constitutional claims of error are to be considered
cumulatively as well as individually. Cumulative error or the
cumulative effect of prejudice from a range of claims may
collectively provide a basis for relief whether or not the effect of
the individual errors warrants relief. Because of the unparalleled
severity and irreversibility of the death penalty, the Eighth
Amendment imposes a heightened standard for reliability in the
determination that death is the appropriate penalty.
Id. at PageID 21524.
However, the Sixth Circuit has held that, after adoption of the AEDPA in 1996,
cumulative error is not a basis for habeas corpus relief even in a capital case. Moreland v.
Bradshaw, 699 F.3d 908, 931 (6th Cir. 2012); Sheppard v. Bagley, 657 F.3d 338, 348 (6th Cir.
2011), cert. denied, 132 S.Ct. 2751 (2011), citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir.
2005), cert. denied sub nom. Moore v. Simpson, 549 U.S. 1027 (2006); Hoffner v. Bradshaw, 622
F.3d 487, 513 (6th Cir. 2010); Lorraine v. Coyle, 291 F.3d 416, (6th Cir. 2002).
The proposed Eighteenth Claim for Relief reads: “Execution By Lethal Injection As
Administered By The State Of Ohio Violates Conway’s Rights To Due Process, Equal
Protection, And Freedom From Cruel And Unusual Punishment Under The Eighth And Fourteenth
Amendments Of The United States Constitution.” (ECF No. 282, PageID 21392-93)

463. Ohio law requires that all executions be carried out by lethal
injection. O.R.C. § 2949.22. Ohio cannot carry out Conway’s
execution by lethal injection without violating his constitutional
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rights, regardless of the execution protocol in place. Ohio’s history
of botched executions and repeated protocol changes demonstrates
that Ohio cannot, and never will, carry out his execution by lethal
injection in a constitutional manner. Because Ohio cannot legally
or constitutionally carry out Conway’s death sentence using the
only method of execution permissible under Ohio law, Conway’s
claim is cognizable in habeas under 28 U.S.C. § 2254.
464. The most recent protocol issued by the Ohio Department of
Rehabilitation and Correction was promulgated on October 7,
2016. See Notice of Revised Protocol, In re: Ohio Execution
Protocol Litig., No. 2:11-cv-1016, ECF No. 667-1, PageID 19812–
32 (S.D. Ohio Oct. 7, 2016). The drugs in that protocol include
three options: (1) Pentobarbital (5 grams); (2) Thiopental sodium
(5 grams); or (3) A three-drug combination of: (a) Midazolam
Hydrochloride (500 mg), a bromide paralytic drug (Vecuronium,
Pancuronium, or Rocuronium bromide), and then (c) Potassium
Chloride (240 milliequivalents). Id. In each of the four executions
that Ohio has carried out or attempted to carry out since the
adoption of that protocol, Ohio has used the third method,
involving the administration of three drugs, beginning with
midazolam (the “three-drug method”).
II. Any Attempt By Ohio To Execute Conway By Lethal Injection
Will Violate His Constitutional Rights.
465. The use of these drugs by Ohio poses an intolerable risk of
extreme pain and cruelty. The drugs arbitrarily selected by Ohio
for its current lethal injection protocol pose a sure or very likely
risk of severe pain and suffering. Midazolam is not an anesthetic
drug, and will not suppress the pain of the second and third drugs.
Moreover, injectable midazolam is extremely acidic and caustic,
and the use of the extreme quantity of midazolam that Ohio
employs—500 mg—will overwhelm and damage Conway’s lungs,
causing acute pulmonary edema and the accompanying sensations
of suffocation and drowning. Upon injection of the second drug,
Conway, while still be sensate and aware, will be paralyzed from
head to toe, including his lungs, and be unable to signal to anyone
the suffering he is enduring. Finally, the injection of potassium
chloride into the still-sensate Conway will feel like fire in
Conway’s veins, chemically burning him from the inside out. Such
an execution cannot comport with the Eighth Amendment.
466. Moreover, Ohio has a history of botched executions. See
generally Cooey v. Strickland, 479 F.3d 412, 423–24 (6th Cir.
2007). These included the prolonged death of Dennis McGuire in
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2014, as well as the aborted execution of Rommel Broom in 2009.
See State v. Broom, 51 N.E.3d 620 (Ohio 2016). They also
include, most recently, the botched attempted execution of Alva
Campbell in November 2017.
467. In Conway’s case, execution by lethal injection is even more
likely to be a gruesome and unconstitutionally painful affair, given
his individual physical characteristics that that include, but are not
limited to: (a) past difficulty in accessing his veins, (b) awoken
twice in the past unexpectedly during medical procedures, (c)
awaken in the middle of the night and been initially unable to
move his body, (d) suffered heart palpitations, (e) suffered a
gunshot wound to the stomach, f) experienced back pain, and g)
suffered from acid reflux. Conway’s history of having used
alcohol, marijuana, and cocaine makes it likely that he will
metabolize the execution drugs very rapidly, thereby creating a
sure or very likely risk that he will not be rendered unaware,
unconscious, and insensate throughout his execution, and thus be
subjected to the extreme pain associated with the drugs used in the
State of Ohio’s protocol. Conway presents with individual
mental/psychological characteristics that include, but are not
limited to, (a) substance abuse including alcohol, marijuana, and
cocaine, (b) a family history of substance abuse, and (c)
dysfunctional childhood all of which individually and cumulatively
increase the risk that he will experience a sure or very likely risk of
serious harm. This is particularly a risk because of the great
likelihood that mental fear, made worse by Conway’s mental
health conditions, will act synergistically with the physical pain
inflicted by Ohio’s execution protocol to leave Conway even more
likely to subjectively experience severe or serious pain and
suffering, regardless of the sedative effects of 500 mg midazolam.
468. Death by state-sanctioned lethal injection violates the due
process protection of life, and constitutes cruel and unusual
punishment in violation of Conway’s constitutional rights because
it inflicts torturous, gratuitous, and inhumane pain, suffering, and
anguish upon the person executed by these means. As
considerations of cruel and unusual punishment must draw
meaning from evolving standards of decency that mark progress of
a maturing society, this Court is not bound to statutory regulations
or prior rulings by a court that violate the Eighth Amendment.
469. The death penalty must result in the mere extinguishment of
life and that torture or a lingering death is unconstitutional. The
jurisprudence of the Eighth Amendment has been consistent in its
prohibition against all unnecessary cruelty.
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Id. at PageID 21528-30.
In sum, the proposed Eighteenth Claim for Relief asserts Ohio’s method of execution by
lethal injection is unconstitutional. It is now firmly established that method of execution claims
must be brought in an action under 42 U.S.C. § 1983 and not in habeas corpus. In In re
Campbell, 874 F.3d 454 (6th Cir. 2017). Conway is a plaintiff in just such an action. In re Ohio
Lethal Injection Protocol Litig., Case No. 2:11-cv-1016.

Conclusion

Because Conway proposes to plead two grounds for relief, claims seventeen and
eighteen, neither of which states a claim upon which habeas corpus relief can be granted, his
Motion for Leave to File Second Amended Petition (ECF No. 281) is DENIED.

June 19, 2020.
s/ Michael R. Merz
United States Magistrate Judge

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