Bays v. Warden Ohio State Penitentiary

Filing 221

DECISION AND ORDER ON MOTION TO AMEND - Petitioner's Renewed Motion to Amend (ECF No. 216) is DENIED. Signed by Magistrate Judge Michael R. Merz on 3/1/2016. (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 ON MOTION TO AMEND

This capital habeas corpus case is before the Court on Petitioner’s Renewed Motion to
Amend (ECF No. 216), the Warden’s Opposition (ECF No. 217), and Petitioner’s Reply in
support (ECF No. 220).

Procedural History

Charles Weaver was robbed and murdered in his home on November 15, 1993. A threejudge panel of the Greene County Common Pleas Court convicted Petitioner Bays of aggravated
murder for that killing and also for aggravated robbery. Because the offense occurred before
January 1, 1995, direct appeal was to the Ohio Second District Court of Appeals which affirmed
the conviction and sentence. State v. Bays, No. 95-CA-118, 1998 Ohio App. LEXIS 227 (2nd
Dist. Jan. 30, 1998). On appeal of right, the Ohio Supreme Court also affirmed. State v. Bays,
87 Ohio St. 3d 15 (1999), cert. denied, 529 U.S. 1090 (2000).

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On July 29, 1996, Bays filed a petition for post-conviction relief which the trial court
denied August 21, 1996. The Second District reversed and remanded for a hearing. After
hearing, the Common Pleas Court denied relief on December 12, 2002. This time the court of
appeals affirmed. State v. Bays, No. 2003 CA 4, 2003 WL 21419173 (2nd Dist. June 20, 2003),
appellate jurisdiction declined, 100 Ohio St. 3d 1433 (2003).

Bays filed a second post-

conviction petition seeking relief under Atkins v. Virginia, 536 U.S. 304 (2002), which he
ultimately voluntarily dismissed in 2007.
Bays filed his habeas petition in this Court November 6, 2008 (ECF No. 16). Although
the Court granted Bays an evidentiary hearing, Cullen v. Pinholster, 563 U.S. 170 (2011),
intervened, preventing the Court from completing the hearing, and ultimately preventing
consideration of any new evidence (ECF No. 65, 93, 103, 106). On February 21, 2012, the
Magistrate Judge recommended the Petition be dismissed with prejudice (ECF No. 109).
However, on May 3, 2012, Bays was granted leave to amend to add two Grounds for
Relief:
Twelfth Ground for Relief: Bays’ execution will violate the
Eighth Amendment because Ohio’s lethal injection protocol will
result in cruel and unusual punishment.
Thirteenth Ground for Relief: Bays’ execution will violate the
Fourteenth Amendment because Ohio’s lethal injection protocol
will deprive him of equal protection of the law.
(Decision, ECF No. 1221, PageID 1669.) Judge Rose overruled Bays’ Objections to the merits
Report and Recommendation on August 6, 2012 (ECF No. 134) and ultimately granted a
certificate of appealability on Ground Five (ECF No. 148); Grounds Twelve and Thirteen
remained unadjudicated.
On May 24, 2013, Bays’ moved to file a Second Amended Petition (ECF No. 153) which

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the Magistrate Judge denied on August 22, 2013 (ECF No. 160); Judge Rose affirmed the denial
on January 3, 2014 (ECF No. 173). In light of concerns about the execution of Dennis McGuire,
Petitioner’s time to move to amend further was extended to April 13, 2015 (ECF No. 194), but a
further one-year extension was denied (ECF No. 197). On June 29, 2015, Ohio amended its
lethal injection protocol and the Supreme Court decided Glossip v. Gross, 576 U.S. ___, 135 S.
Ct. 2726, 192 L. Ed. 2d 761 (2015). In light of Glossip, the Magistrate Judge denied the thenpending Motion to Amend without prejudice to a new motion not later than October 9, 2015
(ECF No. 213). The Order provides “[i]n any renewed motion, Bays must show clearly how any
proposed new claims differ from claims made or proposed to be made in the In re Ohio
Execution Protocol Litig. case and relate them to Ohio’s lethal injection protocol as amended
June 29, 2015.” Id. at PageID 8322. The instant motion followed.

Petitioner’s Motion

Bays begins by noting that Ohio requires executions to be carried out by lethal injection
with no alternative.

(Motion, ECF No. 216, PageID 8332, citing Ohio Revised Code §

2949.22(C)). He asserts that “the claims raised in Bays’ proposed amended petition demonstrate
that Ohio will never be able to execute him using lethal injection without violating his
constitutional rights. As a result, Bays’s death sentence is invalid . . .” Id. at PageID 8333. In
contrast, he says, his Ҥ 1983 claims assume that Ohio may actually be capable of executing him
through the use of lethal injection without committing a constitutional violation.” Id. at PageID
8332. If he raised these invalidity claims in a civil rights proceeding, “his complaint would be
recharacterized as a habeas petition. . .

It necessarily follows that Bays’s claims are properly

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raised in a habeas corpus proceeding” Id. at PageID 8333, citing Adams v. Bradshaw, 644 F.3d
481, 483 (6th Cir. 2011).
Citing numerous decisions of this Court entered before Glossip, Bays argues “[i]t is by
now well-established [sic] 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 8334.

The Warden’s Opposition

The Warden first argues the proposed amended petition fails to plead habeas corpus
claims with the specificity required by Rule 2 of the Rules Governing § 2254 Cases, reasoning
that that Rule is more stringent than the requirements of Fed. R. Civ. P. 8 as interpreted in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662
(2009)(Opposition, ECF No. 217, PageID 8427).
The Warden next asserts that the new claims set forth in the proposed Amended Petition
are solely method-of-execution claims which must be brought in a § 1983 action rather than in
habeas. (Opposition, ECF No. 217, PageID 8428-30, relying on Glossip v. Gross, 576 U.S. ___,
135 S. Ct. 2726, 192 L. Ed. 2d 761 (2015); Hill v. McDonough, 547 U. S. 573 (2006); and
Henderson v. Warden, 2015 U.S. Dist. LEXIS 134120 (S.D. Ohio Sept. 30, 2015)(Frost, J.) The
Warden notes Judge Frost’s statement in Henderson that Glossip “undeniably upends” this Court
allowance of method-of-execution claims in habeas on the basis of a broad reading of Adams,
supra. (Opposition, ECF No. 217, at PageID 8433). The Warden asserts Glossip is not limited
to Eighth Amendment method-of-execution claims. Id. at PageID 8435.
The Warden next argues that granting the amendment would be futile because Bays’ new

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claims are barred by the one-year statute of limitations in 28 U.S.C. § 2244(b)(Opposition, ECF
No. 217, PageID 8436).
Finally the Warden asserts Bays’ statutory claims are barred by both Ohio’s Eleventh
Amendment immunity and by lack of a viable cause of action. Id. at PageID 8436-41.1

Petitioner’s Reply

Bays replies that his claims are pled with sufficient specificity to satisfy Twombly and
Iqbal “or even Habeas Rule 2(c).” (Reply, ECF No. 220, PageID 8470-71.)
Bays accuses the Warden of creating a false dichotomy between “(1) per se challenges
that may proceed in habeas and (2) protocol challenges that an inmate can bring in § 1983
litigation.” Id. at PageID 8471. On the contrary, Bays says he is bringing “a third type of claim.
Bays[’] claims are proper habeas challenges in that they assert that an unconditional writ is
appropriate because his death sentence is invalid.” Id. at PageID 8471-72. These are not per se
claims, however, because “he does not claim that all lethal injection executions, in all
jurisdictions, against all inmates, are unconstitutional. He alleges that lethal injection in Ohio, as
applied to him as an individual, is unconstitutional.” Id. at PageID 8472 (emphasis sic).
Bays reads the Magistrate Judge’s decision in Tibbetts v. Warden, No. 1:14-cv-602, 2015
U.S. Dist. LEXIS 170646 (S.D. Ohio Dec. 21, 2015), as rejecting “the Warden’s extreme reading
of Glossip asserted here.” (ECF No. 220, PageID 8472). He criticizes the Warden’s position as
attempting to exclude any fact-dependent claims from habeas, citing prosecutorial misconduct,

1

In the course of this argument, the Warden asserts “Bays is not being held pursuant to an unlawful conviction or
sentence as found previously by the Sixth Circuit Court of Appeals. . . .Bays’ conviction and sentence has [sic]
already been affirmed by the federal courts in his first habeas action, . . . “ Id. at PageID 8437. This is Bays’ first
habeas action and his conviction and sentence have never been before the Sixth Circuit.

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age, intellectual disability and competency as very fact dependent and cognizable in habeas. Id.
at PageID 8473-75, citing Roper v. Simmons, 543 U.S. 551, 578–79 (2005); Atkins v. Virginia, 536
U.S. 304, 317–18 (2002); Hall v. Florida, 134 S. Ct. 1986, 1996, 2000–01 (2014); Brumfield v. Cain,
135 S. Ct. 2269, 2279–83 (2015); Panetti v. Quarterman, 551 U.S. 930, 960–62 (2007); Ford v.
Wainwright, 477 U.S. 399, 406–10 (1986); Giglio v. United States, 405 U.S. 150 (1972), Brady v.
Maryland, 373 U.S. 83 (1963), and Napue v. Illinois, 360 U.S. 264 (1959).
Bays, in contrast to the Warden, argues Glossip applies only to Eighth Amendment claims
and notes that he also makes Due Process, Equal Protection, Privileges or Immunities, and federal
preemption claims. (Reply, ECF No. 220, PageID 8477). He notes that he has intentionally not pled
an alternative method of execution here because that is a requirement only in § 1983 method-ofexecution cases. Id. at PageID 8479-80. Discussing the overlaps and significant differences in
evidence for the two kinds of cases, Bays concludes

Bays’s lethal injection invalidity grounds for relief are, at bottom,
backwards-looking because they focus on whether Bays’s death
sentence is invalid because it cannot be lawfully carried out. At the
same time, his habeas grounds for relief include a forward-looking
element in the same way that a Ford/Panetti incompetency-to-beexecuted challenge is forward-looking, but also still a valid habeas
ground for relief. This Court is assessing whether Bays’s statecourt sentencing judgment is invalid for impossibility, based on
evidence of what Ohio has done and what it will do in carrying out
an execution using the only manner permissible under Ohio law.
Id.

at PageID 8485.

Bays emphasizes the difference between permanent injunctive relief,

prohibitory or mandatory, in § 1983 and an unconditional writ of habeas corpus that

would prohibit the State from attempting to use any lethal injection
execution protocol to execute Bays, and consequently prohibit the
State from attempting to execute him at all, thus requiring a new
sentencing judgment now, since there is no other option under
current Ohio law by which Ohio might try to kill him.

Id. at PageID 8486.
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Bays asserts his habeas claims “are not the same as his § 1983 causes of action, so he is
not litigating identical matters simultaneously in different forums.” Id. at PageID 8488.
Admitting that he is proceeding simultaneously in habeas and § 1983, Bays asserts this is
caused by the “error in the Sixth Circuit’s decision in Cooey v. Strickland, 479 F.3d 412, 419-22
(6th Cir. 2007).” (Reply, ECF No. 220, PageID 8488-89.)
Bays responds to the statute of limitations defense by asserting the statute begins to run
anew whenever Ohio adopts a new lethal injection protocol. Id. at PageID 8492. In addition “a
new factual landscape . . . has developed over only the last couple of years, in which legally
available, effective drugs are no longer available to Ohio . . .” Id. at PageID 8493.
Bays relies on Ex parte Young, 209 U.S. 123 (1908), to refute the Warden’s Eleventh
Amendment defense (Reply, ECF No. 220, PageID 8495). He is not asserting a claim under the
Supremacy Clause, he says, but rather asserting “that federal laws (through the operation of the
Supremacy Clause) have preempted Ohio’s execution protocol. And he disclaims any attempt
to enforce a private right of action under the federal drug laws. Id.

ANALYSIS

Appropriate Fact Pleading of Habeas Corpus Claims

What is the required minimum level of factual specificity in pleading a habeas corpus
claim? This is a question of first impression for this Court.
Bays’ Proposed Amended Grounds for Relief are appended to his Motion and comprise

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sixty-two pages of text. Bays seeks to plead four grounds for relief2 which are as follows:
FIRST GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Bays because the only means available for
execution violate the Eighth Amendment.
I. Any drug DRC can procure to use to execute Bays via
lethal injection has a substantial, objectively intolerable
risk of causing unnecessary, severe pain, suffering,
degradation, humiliation, and/or disgrace in violation of
the Eighth Amendment, and Ohio has no other means
available to execute Bays that comply with the
Constitution.
II. Any drug DRC can procure to use to execute Bays via
lethal injection poses an objectively intolerable risk of
causing a lingering and/or undignified death in violation
of the Eighth Amendment, and Ohio has no other means
available to execute Bays that comply with the
Constitution.
III. The lack of legally available, effective drugs to
conduct lethal-injection executions will result in the
arbitrary and capricious imposition of the death penalty
on Bays in violation of the Eighth Amendment, and Ohio
has no other means available to execute Bays that comply
with the Constitution.
IV. The lack of legally obtainable, effective drugs to
conduct lethal-injection executions, and the reality that
Ohio has no other means available to execute Bays that
comply with the Constitution will cause Bays
psychological torture, pain and suffering in violation of
the Eighth Amendment.
V. The unavoidable variations inherent in Ohio’s lethalinjection system and DRC’s continued inability to
properly administer its execution protocol present a
substantial, objectively intolerable risk of serious harm to
Bays in violation of the Eighth Amendment, and Ohio has
no other means available to execute Bays that comply
with the Constitution.

2

If the Motion is granted, Bays will append these claims to the claims already pending and re-number them
accordingly.

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VI. Bays’s unique, individual physical and/or mental
characteristics will cause any execution by lethal injection
under Ohio law to violate the Eighth Amendment, and
Ohio has no other means available to execute Bays that
comply with the Constitution.
SECOND GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Bays because the only means available for
execution violate the Due Process Clause of the Fourteenth
Amendment.
I. Execution by lethal injection under Ohio law will deny
Bays’s interests in expecting and receiving a quick and
painless death in violation of the Due Process Clause of
the Fourteenth Amendment, and Ohio has no other means
available to execute Bays that comply with the
Constitution.
II. Bays’s execution by lethal-injection under Ohio law
will be a human experiment on a non-consenting prisoner
in violation of the Due Process Clause of the Fourteenth
Amendment, and Ohio has no other means available to
execute Bays that comply with the Constitution.
THIRD GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Bays because the only means available for
execution violate the Equal Protection Clause of the Fourteenth
Amendment.
I. Equal Protection – Fundamental Rights
A. Underlying constitutional violations in Ohio’s lethalinjection
system
substantially
burdens
Bays’s
fundamental rights, and Ohio has no other means
available to execute Bays that comply with the
Constitution.
B. Unavoidable variation inherent in Ohio’s lethalinjection
system
substantially
burdens
Bays’s
fundamental rights, and Ohio has no other means
available to execute Bays that comply with the
Constitution.
II. Equal Protection – “Class-of-One” Disparate Treatment

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FOURTH GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Bays because the only means available for
execution depend on state execution laws that are preempted by
federal law.
I. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the CSA)
of those drugs violates the CSA.
A. The Ohio lethal-injection statute and DRC’s
Execution Protocol, as written and as implemented,
purport to permit DRC to obtain controlled
substances used in executions without a valid
prescription, in violation of the CSA and DEA
regulations.
B. The Ohio lethal-injection statute and DRC’s
Execution Protocol, as written and as implemented,
purport to authorize DRC, Central Pharmacy, and
Southern Ohio Correctional Facility to provide
controlled substances to Drug Administrators in
contravention of the CSA and DEA regulations.
C. DRC’s execution protocols and the Ohio
execution statute are preempted by the federal CSA.
II. DRC’s actions in obtaining execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administration (and any other terms of art under the
FDCA) of those drugs contravene the FDCA because
those drugs used in an execution are unapproved drugs
and/or misbranded drugs and/or constitute unapproved
Investigational New Drugs.
A. Thiopental sodium can never be used as an
execution drug in compliance with the FDCA.
B. Drugs that are considered Schedule I drugs can
never be used as execution drugs in compliance
with FDCA and/or the CSA.
C. No drug can ever be used to carry out a lethalinjection human execution because no drug has ever
been approved by FDA for the specific purpose of
causing death from lethal injection during a human
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execution or for the purpose of causing a quick and
painless death in a human execution.
D. DRC’s use of unapproved new drugs in a lethalinjection execution contravenes federal law because
it is not subject to an Investigational New Drug
Application.
E. DRC’s execution protocols and the Ohio
execution statute are preempted by the federal
FDCA.
III. DRC’s actions in obtaining compounded controlled
substances for use as execution drugs, its import,
purchase, possession, dispensing, distribution and/or
administrations (and any other terms of art under the CSA
or FDCA) of those drugs violate federal law.
A. DRC’s actions in obtaining compounded
execution drugs, its procurement, obtaining,
importing, purchasing, dispensing, distributing,
possessing and/or administration (and any other
terms of art under the CSA or FDCA) of those
drugs violates federal law because compounding
drugs for use in an execution violates 21 U.S.C. §
353a and/or § 353b.
B. DRC’s actions in obtaining compounded
execution drugs, its procuring, obtaining, importing,
purchasing, dispensing, distributing, possessing
and/or administering (and any other terms of art
under the CSA or FDCA) of compounded
controlled substances violate various other
provisions of the federal drug laws.
C. DRC’s execution protocols and the Ohio
execution statute are preempted by federal law.
(Proposed Amended Grounds for Relief, ECF No. 216-1, PageID 8338, et seq.) These are, of
course, just the grounds for relief; each is supported by many additional paragraphs of pleading.
In 2007 the Supreme Court changed the standard for sufficiency of pleading under Fed.
R. Civ. P. 8, holding:

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Factual allegations must be enough to raise a right to relief above
the speculative level, see 5 C. Wright & A. Miller, Federal
Practice and Procedure § 1216, pp. 235-236 (3d ed.2004)(“[T]he
pleading must contain something more ... than ... a statement of
facts that merely creates a suspicion [of] a legally cognizable right
of action”), on the assumption that all the allegations in the
complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz
v. Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152
L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109
S.Ct. 1827, 104 L.Ed.2d 338 (1989)(“Rule 12(b)(6) does not
countenance ... dismissals based on a judge's disbelief of a
complaint's factual allegations”); Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded
complaint may proceed even if it appears “that a recovery is very
remote and unlikely”).

Bell Atlantic Corp. v. Twombly, 550 U.S.544, 555 (2007). “[A] plaintiff’s obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)(on a motion to dismiss, courts “are not bound to accept as true
a legal conclusion couched as a factual allegation.”) Twombly expressly overruled Conley v.
Gibson, 355 U.S. 41, 45-46 (1957), disapproving of the proposition from Conley that “a
complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Two years later the Court further explicated the pleading standard it had adopted:
Two working principles underlie our decision in Twombly. First,
the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.
Threadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, do not suffice. Id., at 555, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (Although for the purposes of a
motion to dismiss we must take all of the factual allegations in the
complaint as true, we "are not bound to accept as true a legal
conclusion couched as a factual allegation" (internal quotation
marks omitted)). Rule 8 marks a notable and generous departure
from the hyper-technical, code-pleading regime of a prior era, but
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it does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions. Second, only a complaint that
states a plausible claim for relief survives a motion to dismiss. Id.,
at 556, 127 S. Ct. 1955, 167 L. Ed. 2d 929. Determining whether a
complaint states a plausible claim for relief will, as the Court of
Appeals observed, be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense. 490 F.3d at 157-158. But where the well-pleaded facts do
not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not "show[n]" -"that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to
dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can provide the
framework of a complaint, they must be supported by factual
allegations. When there are well-pleaded factual allegations, a
court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
How applicable are Twombly and Iqbal to habeas corpus proceedings? Rule 2(c) of the
Rules Governing § 2254 Cases (the “Habeas Rules”) provides in pertinent part that a habeas
corpus “petition must (1) specify all the grounds for relief available to the petitioner; [and] (2)
state the facts supporting each ground.” The Advisory Committee Notes from adoption of the
Habeas Rules in 1976 explain “[i]n the past, petitions have frequently contained mere
conclusions of law, unsupported by any facts. Since it is the relationship of the facts to the claim
asserted that is important, these petitions were obviously deficient.” Although the Habeas Rules
were first adopted thirty years before Twombly, Rule 2(c) mirrors the Supreme Court’s
conclusion in Twombly that pleading mere conclusions is not enough. This is particularly true
where petitioners such as Bays and other death row inmates in Ohio are represented by
sophisticated counsel whose sole practice is in habeas corpus. Represented habeas petitioners
are not entitled to the leeway accorded to pro se habeas litigants. See Haines v. Kerner, 404 U.S.
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519, 520-21 (1972).
In arguing that the Proposed Amended Petition is sufficiently fact specific, Bays relies on
El-Hallani v. Huntington Nat’l Bank, No. 14-1827, 623 Fed. App’x 730, 2015 U.S. App. LEXIS
12906 (6th Cir. 2015); and Flood v. Phillips, No. 01-2249, 90 Fed. App’x 108, 2004 U.S. App.
LEXIS 1555 (6th Cir. 2004). El-Hallani interprets Twombly and Iqbal as preserving notice
pleading under Fed. R. Civ. P. 8, but notes that “[m]erely reciting the elements of the cause of
action, couched as allegations, will not do.” Id. at *735.
While Flood addresses the requirements of Habeas Rule 2(c), it does so in a conclusory
way, i.e., it finds the “bare bones” petition in that case sufficient without reciting what was in the
petition. The only case to which Flood cites that turns on a pleading issue is Hill v. Lockhart,
474 U.S. 52 (1985), where the Supreme Court held that the petition was insufficient for failure to
satisfy the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), in that
Petitioner did not allege in his habeas petition that, had counsel
correctly informed him about his parole eligibility date, he would
have pleaded not guilty and insisted on going to trial. He alleged
no special circumstances that might support the conclusion that he
placed particular emphasis on his parole eligibility in deciding
whether or not to plead guilty. Indeed, petitioner's mistaken belief
that he would become eligible for parole after serving one-third of
his sentence would seem to have affected not only his calculation
of the time he likely would serve if sentenced pursuant to the
proposed plea agreement, but also his calculation of the time he
likely would serve if he went to trial and were convicted.
Because petitioner in this case failed to allege the kind of
"prejudice" necessary to satisfy the second half of the Strickland v.
Washington test, the District Court did not err in declining to hold
a hearing on petitioner's ineffective assistance of counsel claim.

Hill, 474 U.S. at 60.
Although calling the requirement of fact pleading “wholly anachronistic,” in light of “far

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less exacting pleading . . . for ordinary civil actions.” Wright and Miller agree that fact pleading
is required by Habeas Rule 2(c).

Wright, Miller, Cooper & Amar, Federal Practice and

Procedure: Jurisdiction 3d § 4268.3 (2007). Hertz & Liebman agree that Habeas Rule 2(c)
states a fact pleading requirement “which deviates from the ‘notice pleading’ rule applicable in
other federal civil cases. . .” Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice
and Procedure 6th §11.6 (2011). They interpret the rule as requiring “that the petitioner include
in the statement of each claim enough supporting facts to distinguish it from claims of its generic
type and to justify a decision for the petitioner once the alleged facts are proven.” Id. Hertz and
Liebman set out in the margin numerous cases where federal courts have found the factual
pleading in habeas petitions to be insufficient including, inter alia, Hill v. Lockhart, supra.
In examining Bays’ proposed Grounds for Relief against this standard, the Court finds
they generally allege sufficient facts to satisfy Habeas Rule 2(c). That is, the claims made by
Bays about the availability of lethal execution drugs and Ohio’s protocol for administering them,
although they apply to many Ohio capital habeas petitioners, are sufficiently factual to permit the
Warden to defend and the Court to adjudicate those claims.
There is one exception. Sub-claim VI of the First Ground for Relief reads:
VI. Bays’s unique, individual physical and/or mental
characteristics will cause any execution by lethal injection
under Ohio law to violate the Eighth Amendment, and
Ohio has no other means available to execute Bays that
comply with the Constitution.
This claim is virtually identical to claims being made by other Ohio capital habeas petitioners.
See, e.g., Chinn v. Warden, Case No. 3:02-cv-512, ECF No. 133, PageID 9701-3; Raglin v.
Mitchell, Case No. 1:00-cv-767, ECF No. 247, PageID 3405-7; Sheppard v. Robinson, Case No.
1:12-cv-198, ECF No. 70-1, PageID 1103-5. Every human being has unique physical and mental

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characteristics, at least when considered in combination and when expressed in the individual
person. Bays fails to allege which of his physical or mental characteristics makes it impossible
to execute him by lethal injection. Is it hallucinations or heart disease or anxiety or a liver
ailment, or what? The claim cannot be defended against or adjudicated without knowing what
the alleged individual characteristics are.
Petitioner’s Motion to Amend is DENIED as to Sub-claim VI of the First Ground for
Relief. The Court finds the remaining proposed Grounds for Relief are pled with sufficient
factual specificity to satisfy Habeas Rule 2(c).

Cognizability of Method-of-Execution Claims in Habeas

Relying on an expansive reading of Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011),
this Court had allowed method-of-execution claims to be brought in habeas corpus at the same
time that a petitioner is pursuing closely parallel claims in a § 1983 action. Other judges of this
Court have taken the same position in the past. However, the undersigned agrees with Judge
Frost that Glossip “undeniably upends” that practice.

Henderson, 2015 U.S. Dist. LEXIS

134120 at *9. Accordingly, this Court has denied amendments parallel to those sought to be
made here in other capital habeas corpus cases. Turner v. Hudson, 2016 U.S. Dist. LEXIS
6019(S.D. Ohio Jan. 19, 2016); Campbell v Jenkins, 2016 U.S. Dist. LEXIS 6521 (S.D. Ohio
Jan. 20, 2016); Sheppard v. Robinson, 2016 U.S. Dist. LEXIS 18297 (S.D. Ohio Feb. 16, 2016);
O’Neal v. Jenkins, 2015 U.S. Dist. LEXIS 121376 (Sept. 11, 2015), adopted by O’Neal v.
Warden, Chillicothe Corr. Inst., 2016 U.S. Dist. LEXIS 17602 (S.D. Ohio Feb. 12,
2016)(Barrett, J.); Raglin v. Mitchell, 2016 U.S. Dist. LEXIS 23807 (S.D. Ohio Feb. 26, 2016).

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Upon this authority, the Court finds Bays’ four proposed Grounds for Relief are not
cognizable in habeas corpus and the motion to amend to add them is, on that basis, DENIED.

Statute of Limitations

The Warden argues the proposed amendments would be futile because they are barred by
the one year statute of limitations in 28 U.S.C. § 2244 (d).
The Warden concedes Bays’ initial Petition was timely filed but notes that it did not
contain a claim based on lethal injection. The pendency of a habeas petition does not toll the
statute of limitations because it is not an application for state post-conviction or other collateral
review. Duncan v. Walker, 533 U.S. 167 (2001). .
Bays asserts his time to file began to run anew when Ohio changed its written execution
protocol, most recently on June 29, 2015 (Reply, ECF No. 220, PageID 8492). He also argues
“evidence obtained for the first time . . .triggered new limitations periods over the past several
years.” Id.
Because the Court has determined that none of the proposed new claims is cognizable in
habeas corpus, it need not decide the statute of limitations issue at this point. The Court notes,
however, that Petitioner is quite vague in his allegations of which new factual predicates arose
when. He speaks of the “new factual landscape that has developed over only the last couple of
years . . .” Id. at PageID 8493. A limitations analysis unanchored from the date of adoption of a
new protocol will require much tighter analysis of the dates when critical information was
discovered.

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Eleventh Amendment Immunity and Federal Pre-emption

The Warden’s Eleventh Amendment immunity defense is without merit. Habeas corpus
is a well-recognized exception to the Eleventh Amendment. Seminole Tribe v. Florida, 517 U.S.
44 (1996).
Because the Court has already determined that Bays’ proposed new claims are not
cognizable in habeas corpus, it need not consider the Warden’s pre-emption defense.
Conclusion

In accordance with the foregoing analysis, the Petitioner’s Motion for Leave to File an
Amended Petition is DENIED.

March 1, 2016.
s/ Michael R. Merz
United States Magistrate Judge

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