Bays v. Warden Ohio State Penitentiary
Filing
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DECISION AND ORDER; REPORT AND RECOMMENDATIONS - Petitioner's Motion for Leave to File an Amended Petition (Doc. No. 198) is dnied. It is respectfully recommended that the District Court dismiss Grounds Twelve and Thirteen without prejudice to a new petition raising any lethal injection claims Bays may have with respect to the January 9, 2015, Ohio lethal injection protocol. It is further recommended that the Court enter final judgment in accordance with its prior decision of August 6, 2012 (Doc. No. 134). Objections to R&R due by 7/2/2015. Signed by Magistrate Judge Michael R. Merz on 6/15/2015. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RICHARD BAYS,
Petitioner,
:
- vs -
Case No. 3:08-cv-076
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Ohio State Penitentiary,
:
Respondent.
DECISION AND ORDER; REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court Petitioner’s Motion for Leave to File
an Amended Petition (Doc. No. 198). Respondent opposes the Motion (Response, Doc. No. 199)
and Petitioner has filed a Reply in support (Doc. No. 200).
Relevant Procedural History
On August 6, 2012, District Judge Rose adopted the Magistrate Judge’s Report and
Recommendations (Doc. No. 109)(Entry and Order, Doc. No. 134), concluding that the Petition
herein should be dismissed with prejudice.
On January 29, 2013, he also adopted the
Magistrate’s Judge’s recommendations on a certificate of appealability (Doc. No. 148).
On May 24, 2013, Bays moved to amend to add a claim under Atkins v. Virginia, 536
U.S. 304 (2002)(Doc. No. 153). The Magistrate Judge denied that Motion (Doc. Nos. 160, 169)
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and Judge Rose overruled Bays’ Objections on January 3, 2014 (Doc. No. 173).
Shortly
thereafter the Magistrate Judge ordered Bays to show cause why his lethal injection protocol
claims (Grounds 12 & 13) should not be dismissed as moot (Doc. No. 174). On Petitioner’s
Unopposed Motion, the Court stayed consideration of that question until March 17, 2014, the
expected sixtieth day after the scheduled execution of Dennis McGuire (Doc. No. 175).
On November 5, 2014, the Magistrate Judge denied Petitioner’s request to extend the stay
and the deadline for filing an amended petition to April 13, 2015, and recommended that Judge
Rose (1) enter final judgment on the other claims in the case in accordance with his prior
decision, (2) dismiss the then-pending lethal injection protocol claims as moot, (3) certify that
the judgment was final (Doc. No. 183). Both parties objected (Doc. Nos. 188, 191), and, on
recommittal, the Magistrate Judge withdrew the prior decision and report and extended
Petitioner’s time to moved to amend to April 13, 2105, as originally requested (Doc. No. 194).
On March 17, 2015, Petitioner moved for another year’s extension of time (Doc. No.
195). The Magistrate Judge denied any further extension and the instant Motion to Amend was
filed on April 13, 2015.
Analysis
The Magistrate Judge has reconsidered the arguments made by the parties in their
Objections in November 2014.
Grounds Twelve and Thirteen are indeed moot as previously found because they relate to
an Ohio lethal injection protocol which has been completely superseded. Bays will never be
executed or threatened with execution under that protocol. As Bays’ Motion recites, many of the
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judges of this Court have found that adoption of a new lethal injection protocol gives rise to new
claims for relief.
However, filing an amended petition embodying claims related to the
January9, 2015, lethal injection protocol and then extending the stay of consideration of Bays’
lethal injection claims would come at unnecessary cost to judicial economy. The conviction
under attack in this case occurred in 1995. The Report and Recommendations on the merits were
filed more than three years ago and are no closer to finality than when Judge Rose adopted them.
Because the Court has already granted a certificate of appealability, this case will certainly
require Sixth Circuit review which, if history is any guide, will take several years. Assuming
Bays were to be successful on the only Ground for Relief this Court has certified for appeal, that
would mean a new trial, at least on mitigation, more than twenty years after the first trial with all
the degradation of witness memory that that entails.
There is an alternative which protects Bays’ interest in district court consideration of his
lethal injection claims and the State’s interest in finality. This Court has previously held that a
second-in-time petition raising newly-arising lethal injection claims is not a second or successive
petition within the meaning of 28 U.S.C. § 2244.
It is therefore respectfully recommended that the District Court dismiss Grounds Twelve
and Thirteen without prejudice to a new petition raising any lethal injection claims Bays may
have with respect to the January 9, 2015, Ohio lethal injection protocol.
It is further
recommended that the Court enter final judgment in accordance with its prior decision of August
6, 2012 (Doc. No. 134). Finally, the Motion to Amend (Doc. No. 198) is DENIED.
June 15, 2015.
s/ Michael R. Merz
United States Magistrate Judge
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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
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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