Bays v. Warden Ohio State Penitentiary

Filing 235

DECISION AND ORDER - Petitioner's Renewed Motion for Leave to File a Second Amended and Supplemental Petition for Writ of Habeas Corpus 232 is GRANTED. He may, not later than April 24, 2017, file a Supplemental Petition including the four Gro unds for Relief set forth in his proposed amendments (ECF No. 232-1). Those Grounds for Relief shall be numbered Sixteen, Seventeen, Eighteen, and Nineteen to distinguish them from Grounds for Relief previously filed in this case and to avoid confusion with those earlier grounds. Signed by Magistrate Judge Michael R. Merz on 4/10/2017. (kpf) Modified on 4/10/2017 to change document type (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, Chillicothe Correctional
Institution,
:
Respondent.

DECISION AND ORDER

This capital habeas corpus case is before the Court on Petitioner’s Renewed Motion for
Leave to File a Second Amended and Supplemental Petition for Writ of Habeas Corpus
(Renewed Motion, ECF No. 232). The Warden opposes the Motion (Opposition, ECF No. 233)
and Mr. Bays has filed a Reply in Support (Reply, ECF No. 234).

Procedural History

On November 15, 1993, Petitioner Richard Bays robbed and murdered Charles Weaver.
He was indicted by the Greene County grand jury on one count of aggravated murder under
[former] Ohio Revised Code § 2903.01(A), one count of aggravated murder under [former] Ohio
Revised Code § 2903.01(B), and one count aggravated robbery under Ohio Revised Code
2911.02(A)(2). Having waived his right to trial by jury, Bays was tried by a three-judge panel
and convicted of aggravated murder with a capital specification and aggravated robbery and
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sentenced to be executed.

Since the murder happened before January 1, 1995, Mr. Bays

appealed to the second District Court of Appeals which affirmed the conviction and sentence.
State v. Bays, No. 95-CA-118, 1998 WL 32595 (2nd Dist. Jan. 30, 1998). On appeal of right to
the Ohio Supreme Court, the conviction and sentence were affirmed. State v. Bays, 87 Ohio St.
3d 15 (1999) cert. den. 529 U.S. 1090 (2000).
Mr. Bays filed for post-conviction relief under Ohio Revised Code § 2953.21. Although
initially unsuccessful, he obtained a reversal in the Second District which remanded for a
hearing.

On December 12, 2002, the trial court again denied relief.

Mr. Bays appealed

unsuccessfully to the Second District and Ohio Supreme Court. Bays filed a successive petition
under Ohio Revised Code § 2953.21 making a claim under Atkins v. Virginia, 536 U.S. 304
(2002). That petition was voluntarily dismissed November 9, 2007, and the Petition in this case
was filed November 6, 2008.
On February 21, 2012, the Magistrate Judge filed a Report and Recommendations
recommending the Petition be dismissed with prejudice (Report, ECF No. 109). Over the
Warden’s objections, Mr. Bays was permitted to file an Amended Petition on May 11, 2012,
which pleaded two new Grounds for Relief alleging respectively that Bays’ execution by lethal
injection would subject him to cruel and unusual punishment (Ground 12) and would deny him
equal protection of the law (Ground 13)(ECF No. 122, PageID 1672).
On August 6, 2012, District Judge Rose adopted the Report (ECF No. 134). On January
29, 2013, he adopted the Magistrate Judge’s recommendations on a certificate of appealability
(ECF No. 148). Then on May 24, 2013, Mr. Bays moved again to amend to raise Atkins claims
and to hold the case in abeyance while he returned to state court to litigate those claims (ECF
No. 153). Judge Rose affirmed the Magistrate Judge’s denial of the motion to amend and stay

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(ECF No. 173).
On January 22, 2014, the Magistrate Judge sua sponte raised the question whether the
Twelfth and Thirteenth Grounds for Relief were moot because they were directed at an Ohio
Protocol that had been superseded (Order to Show Cause, ECF No. 174). After some delay
occasioned by the execution of Dennis McGuire, Mr. Bays filed again for leave to amend (ECF
No. 198). Eventually Bays was given leave to move to amend within thirty days of the mandate
in the Stanley Adams habeas corpus litigation (ECF No. 225). The instant renewed Motion was
filed in accordance with that schedule.

Bays’ Proposed Second Amended Petition

Bays preserves his original claims for appeal by incorporating his Petition and Amended
Petition by reference (ECF No. 232-1, PageID 8583) He proposes four new Grounds for Relief
to replace Grounds Twelve and Thirteen, as follows:
FIRST GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because the only manner
available under the law to execute him violates his Eighth
Amendment rights.
SECOND GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because the only manner
available for execution violates the Due Process Clause or the
Privileges or Immunities Clause of the Fourteenth Amendment.
THIRD GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because the only manner of
execution available for execution under Ohio law violates the
Equal Protection Clause of the Fourteenth Amendment.
FOURTH GROUND FOR RELIEF: The State of Ohio cannot
constitutionally execute Petitioner because Ohio’s violations of
federal law constitute a fundamental defect in the execution
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process, and the only manner of execution available for execution
depends on state execution laws that are preempted by federal law.
Id.
Bays’ Renewed Motion focuses principally on the cognizability of his lethal injection
claims in habeas corpus in light of Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016)(Adams III).
He asserts that it is not the same as an attack on the current lethal injection protocol such as
might be made in an action under 42 U.S.C. § 1983 because it “attacks the validity of Bays’
death sentence judgment. . .” (ECF No. 232, PageID 8580). Nonetheless, it “will necessarily
encompass the facts relevant to what the State intends to do under the current execution protocol.
. .” Id. Bays notes that Ohio adopted a new protocol October 7, 2016, and asserts “[t]he current
protocol gives rise to new claims arising from differences between it and the superseded protocol
underlying Bays’s prior claims, as well as making Bays’s prior claims newly ripe in accordance
with the new protocol.” Id. Conversely, Bays says, his claims are not so broad as to be claims
that lethal injection is per se unconstitutional. Id. at PageID 8581. Finally, he notes that his
claims will include his own health characteristics, showing why lethal injection is
unconstitutional as applied to him. Id. at PageID 8582
His habeas corpus lethal injection claims are different from possible § 1983 claims, Bays
asserts, because success in a civil rights case would only relate to a particular method of lethal
injunction and would not declare his death sentence unconstitutional and therefore invalid, relief
which can only be obtained in habeas corpus. Id. at PageID 8583.
The Warden opposes amendment on the grounds the amendment is untimely under the
AEDPA statute of limitations and futility because the proposed grounds for relief are not
cognizable in habeas corpus (Opposition, ECF No. 233, PageID 8703).
Bays’ Reply argues at some length how his habeas lethal injection claims fit into the window
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recognized by Adams III -- not so broad as to be per se challenges, not so narrow as to challenge
only a particular protocol (Reply, ECF No. 234, PageID 8705-11). He relies on Adams III, but
also In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported Order;
copy at Case No. 1:00-cv-767, ECF No. 274-1, PageID 3961, et seq.)

Analysis

Richard Bays is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv1016. That case seeks to permanently enjoin Ohio from executing him and most other Ohio
death row inmates under the current lethal injection protocol, which was adopted October 7,
2016. That protocol has already been the subject of extensive litigation, resulting in an order
preliminarily enjoining its intended use in the executions of Ronald Phillips, Raymond Tibbetts,
and Gary Otte. In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S. Dist.
LEXIS 11019 (S.D. Ohio Jan 26, 2017), aff’d., ___ F.3d ___, 2017 U.S. App. LEXIS 5946 (6th
Cir. Apr. 6, 2017).
A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages
over a habeas corpus action. Among other things, it is not subject to the second-or-successive
limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of
focused on what happened in the state courts, it is not limited in the introduction of evidence
imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011). On
the other hand, introduction of evidence discovered in a § 1983 lethal injection case appears to
be admissible in a habeas corpus lethal injection case, per Adams III, where that conclusion is
assumed without any discussion of Pinholster.
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Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA")
vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district
court could not grant release from confinement in a § 1983 action; to do so would frustrate the
habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973) (Notably, Justice
Brennan, the major architect of expansion of habeas in the 1960’s, dissented.) It was in Nelson
v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of
execution claim could be brought in a § 1983 case, over the objection of state officials who
insisted that such a claim had to be brought in habeas corpus and would, in Nelson’s case, have
been subject to the second-or-successive requirement imposed by the AEDPA. The Court
unanimously concluded that, because Nelson’s challenge to the method of execution (a vein cutdown procedure) did not challenge his actual death sentence, it could be brought in a § 1983
action.
Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of
Case No. 2:11-cv-1016, was filed December 8, 2004, and references an earlier filing in Case No.
2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in
2:11-cv-1016, Cooey remains pending.

The same organizations of attorneys who provide

representation to plaintiffs in 2:11-cv-1016 – the Capital Habeas Units of the Offices of the
Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public
Defender’s Office – also represent most of the capital habeas corpus petitioners in this Court.
Thus the litigation context provides maximal opportunities for coordination of strategy. To this
Court’s eye, those opportunities are never missed; if there are internal disagreements among the
capital petitioners’ bar, they are not apparent to this Court.
Petitioners’ bar has had an apparent strategy for some years to have parallel habeas and §

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1983 actions pending simultaneously on behalf of the same inmate and raising substantively
parallel claims. Implementation of this strategy has been supported by the series of decisions of
the Sixth Circuit in Stanley Adams’ habeas corpus case from the Northern District of Ohio,
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.
In Adams I the circuit court held, over Ohio’s objection, that a challenge to the method of
lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say,
availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of
action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add
lethal injection claims and indeed treated those claims as newly arising whenever Ohio’s lethal
injection protocol was amended. This reading informed the Magistrate Judge’s allowance of the
Second Amended Petition as upheld by Judge Barrett, supra, at pages 2-3.
Then the Supreme Court appeared to call this Court’s practice into question with its
decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):
Petitioners contend that the requirement to identify an alternative
method of execution contravenes our pre-Baze [v. Rees, 533 U.S.
35 (2008)] decision in Hill v. McDonough, 547 U. S. 573, 126 S.
Ct. 2096, 165 L. Ed. 2d 44 (2006), but they misread that decision.
The portion of the opinion in Hill on which they rely concerned a
question of civil procedure, not a substantive Eighth Amendment
question. In Hill, the issue was whether a challenge to a method of
execution must be brought by means of an application for a writ of
habeas corpus or a civil action under §1983. Id., at 576, 126 S. Ct.
2096, 165 L. Ed. 2d 44. We held that a method-of-execution
claim must be brought under §1983 because such a claim does
not attack the validity of the prisoner’s conviction or death
sentence. Id., at 579-580, 126 S. Ct. 2096, 165 L. Ed. 2d 44.

135 S.Ct. at 2738 (emphasis added). Changing course, this Court concluded the “must be
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brought” language precluded what it had been doing under Adams I. Then, in Adams II as
clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I:
Adams challenged the constitutionality of lethal injection on direct
appeal, asserting that "[d]eath by lethal injection constitutes cruel
and unusual punishment and denies due process under the state and
federal constitutions." The Ohio Supreme Court rejected this
claim, explaining it had "previously rejected similar arguments."
Adams, 817 N.E.2d at 56 (citing State v. Carter, 89 Ohio St. 3d
593, 2000 Ohio 172, 734 N.E.2d 345, 358 (Ohio 2000)). Adams
again challenged the constitutionality of execution by lethal
injection in his federal habeas corpus petition. The district court
denied this claim, noting that "lethal injection is the law of the
republic. No federal court has found the lethal injection protocol to
be unconstitutional." Adams, 484 F. Supp. 2d at 796 (citation
omitted).
As an initial matter, we note our recent holding that lethal injection
does not violate the Constitution. See Scott v. Houk, 760 F.3d 497,
512 (6th Cir. 2014) ("Simply put, lethal injection does not violate
the Constitution per se . . . ."). In Scott, a similar challenge to the
implementation of lethal injection was raised, as a panel of this
court observed that "Scott's petition alleges that lethal injection
'inflicts torturous, gratuitous and inhumane pain, suffering and
anguish upon the person executed.'" Id. at 511. Accordingly, the
Ohio Supreme Court's denial of Adams's challenge to the
constitutionality of lethal injection as a means of execution did not
constitute an unreasonable application of Supreme Court
precedent.
The Supreme Court's decision in Glossip does not alter our
precedent. Glossip concerned a 42 U.S.C. § 1983 action
challenging Oklahoma's execution protocol. . . .
Lastly, notwithstanding the warden's observation that a method-ofexecution challenge can only be brought in a § 1983 action under
Hill v. McDonough, 547 U.S. 573 (2006), Adams can bring this
claim in a § 2254 proceeding. As the warden submits, Glossip
stated that Hill "held that a method-of-execution claim must be
brought under § 1983 because such a claim does not attack the
validity of the prisoner's conviction or death sentence." Glossip,
135 S. Ct. at 2738. As we observed in Adams, 644 F.3d at 483,
however, Adams's case is distinguishable from Hill because
Adams argues that lethal injection cannot be administered in a
constitutional manner, and his claim "could render his death
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sentence effectively invalid." Cf. Hill, 547 U.S. at 580. Our
decision in Adams is consistent with the Supreme Court's
reasoning in Nelson, which suggested that, under a statutory
regime similar to Ohio's, "a constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself." 541 U.S. at 644. 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. Adams, 644 F.3d at 483.
However, as the Supreme Court observed in Glossip, a challenge
to a particular procedure that concedes the possibility of an
acceptable alternative procedure is properly brought in a § 1983
action. Glossip, 135 S. Ct. at 2738.
Adams v. Bradshaw, 826 F.3d 306, 318-21 (6th Cir. 2016), cert den. sub nom. Adams v. Jenkins,
137 S. Ct. 814, 196 L. Ed. 2d 602 (2017). By denying certiorari, the Supreme Court passed up a
chance to clarify the meaning of Glossip. Denial of certiorari triggered issuance of the mandate
which then set the deadline for the instant Renewed Motion.
As this Magistrate Judge understands it, the 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 in a constitutional manner, and
[that] claim ‘could render his death sentence effectively invalid.’” Adams III, quoting Hill v.
McDonough, 547 U.S. 573, 580 (2006). Although the Adams court did not say so explicitly, it is
obvious the same claim can also be made in a § 1983 action seeking permanent injunctive relief.
Indeed Stanley Adams has done so and is a plaintiff in In re: Ohio Execution Protocol Litig.,
Case No. 2:11-cv-1016. Of course as a § 1983 plaintiff, a death row inmate must plead a
constitutional alternative method of execution. Glossip, supra.
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
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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.).
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

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“[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.
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within a
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.)
As proposed to be pled, Bays’ four new lethal injection invalidity claims quoted above fit
within the cognizability window recognized in Adams III. That is to say, they are not claims that
lethal injection executions are per se unconstitutional; such a claim would be precluded by
precedent. As this Court understands the Sixth Circuit’s classification in Adams I, II, and III, a
per se claim would read something like “It is unconstitutional for any American State to execute
anyone by lethal injection.” Instead, these claims are general in the sense that they assert “It is
and will always be unconstitutional for the State of Ohio to execute Mr. Bays by any lethal
injection procedure and because Ohio authorizes executions only by lethal injection, his death
sentence is invalid.”
The Warden’s objection that these claims are not cognizable in habeas corpus is not well
taken.

The Statute of Limitations

AEDPA imposed a one-year statute of limitations on habeas corpus claims. 28 U.S.C. §

11

2244(d). The Warden raises a statute of limitations defense here in very brief fashion:
Second, to the extent the proposed amended claims are construed
as a properly pled general challenge to lethal injection, the one
year statute of limitations under 28 U.S.C. §2244(d) has long ago
expired, where the state court judgment Bays attacks has been final
for more than two decades. Turner v. Hudson, No. 2:07-cv-595,
2016 WL 212961, *8-10 (S.D. Ohio Jan. 19, 2016); In re:
Lawrence Landrum, Case No. 16-3151, at pg. 2-3 (6th Cir. Feb.
13, 2017).
(Opposition, ECF No. 233, PageID 8703.)

The Limitations Defense has not been Forfeited

Bays begins by asserting that the limitations defense, being non-jurisdictional, is subject
to forfeiture and claims the Warden has not sufficiently asserted such a defense, thereby
forfeiting it. (Reply, ECF No. 234, PageID 8712). While the limitations defense in habeas can
be forfeited, no case authority supports the proposition that failure to raise a limitations defense
in objection to a motion to amend constitutes such a forfeiture. To put it another way, just
because a defendant can raise any available Fed. R. Civ. P. 12(b) defense in opposing a motion
to amend does not logically imply that the defendant has forfeited the defense by failing to raise
it at that stage.
The statute of limitations is an affirmative defense which is forfeited if not pleaded as
required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on
limitations grounds when conducting an initial review under Rule 4 of the Rules Governing §
2254 Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense
even after an answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). In
Wood v. Milyard, 566 U.S. 463 (2012), the Supreme Court held that courts of appeals have
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authority to consider a forfeited timeliness defense sua sponte.
Petitioner’s objection that Respondent has forfeited a limitations defense is
OVERRULED.

Newly Discovered Evidence vs. Newly Arising Claims

Next Bays asserts the authority cited by Respondent is inapposite (Reply, ECF No. 234,
PageID 8712).
In In re: Lawrence Landrum, Case No. 16-3151 (6th Cir. Feb. 13, 2017)(unreported
Order; copy at Case No. 1:00-cv-767, ECF No. 274-1, PageID 3961), the Sixth Circuit held that
Landrum’s proposed lethal injection habeas claim required permission to proceed under 28
U.S.C. § 2244(b) which the circuit court refused to give. Landrum had argued “that he could not
have raised his lethal-injection challenge until after the state adopted a revised protocol on
September 18, 2011.” Id. at page 3. The circuit court rejected that argument, holding “Landrum
has not identified practices or procedures from the September 2011 protocol that amount to a
factual predicate that could not have been discovered previously. See 28 U.S.C. §
2244(b)(2)(B).”
Bays asserts this statement implies that if a capital habeas petitioner does show
practices or procedures from the relevant amended protocol – here
the October 7, 2016 execution protocol – that could not have been
discovered previously, then claims brought within one year of
those predicates are not time-barred. That is precisely what Bays
has done in his renewed motion and grounds for relief.
(Reply, ECF No. 234, PageID 8713.) At ¶¶ 63-67 (ECF No. 232-1, PageID -8605-6) of his
proposed third amended petition, Bays recites facts related to the October 7, 2016, protocol. At

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¶¶ 78-100 (PageID 8608-15) Bays makes allegations about the use of the drug midazolam as the
first drug in the alternative in the current protocol which Ohio intended to use to execute Ronald
Phillips, Raymond Tibbetts, and Gary Otte. Among those allegations are asserted problems with
the use of midazolam to execute Dennis McGuire. (Id. at ¶ 86-87), Clayton Lockett (¶¶ 88-89),
and Joseph Wood (¶¶ 90-91). Dennis McGuire was executed January 16, 2014; Clayton Lockett
was executed April 29, 2014; and Joseph Wood was executed July 23, 2014. None of these dates
are mentioned in either the Renewed Motion or the proposed third amended petition. The
relevant facts about use of midazolam in these executions were not newly discovered within one
year before March 8, 2017. They have been thoroughly vetted in the § 1983 Protocol Litigation
case.1 But that is not enough for Petitioner’s counsel who want these facts to count as newly
discovered factual predicates for his habeas lethal injection claims, thus extending the start date
for the statute of limitations under 28 U.S.C. § 2244(d)(1)(D). But wait. All of these facts had
been discovered not later than July 23, 2014.2 How can they be newly arising factual predicates
for habeas lethal injection claims made in March 2017?
Part of the difficulty with Bays’ position is that it seems to stem from the drive of his
counsel to completely conflate habeas corpus and § 1983 procedure.

But Adams III and

Landrum do not do that. While those cases do support counsels’ strategy to have substantively
parallel habeas and § 1983 claims pending at the same time and to use evidence obtained in the §
1983 case in support of the habeas claims,3 the Sixth Circuit has not elided the procedural
differences between these two types of cases.
If Bays’ cognizable-in-habeas general lethal injection invalidity claims did not arise when

1

Or at least thoroughly enough for a preliminary injunction hearing.
All three of these executions were widely covered in the press and thus would have come to counsels’ attention
quickly. McGuire was represented by Bays counsel.
3
Adams III expressly says this may be done without discussing any possible impact of Pinholster.
2

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his attorneys discovered the facts about midazolam sometime between January 2014 and March
8, 2017, when did they arise? Bays filed his original Petition in this case in 2008 after lethal
injection became the exclusive method of execution in Ohio. It was the exclusive method in
2004 when the Supreme Court decided in Nelson v. Campbell that method of execution claims
could be brought in a § 1983 case. Although Bays never became a plaintiff in Cooey v. Taft,
2:04-cv-1156, counsel who represent him here were counsel to other death row inmates in that
case. He is a plaintiff in In re: Ohio Execution Protocol Litig., and has been since November
14, 2011.

The original Complaint in that case included claims of Eighth and Fourteenth

Amendment violations (First Claim), due process violations (Second Claim), and equal
protection violations (Fourth Claim). If those constitutional violations had arisen for § 1983
purposes by the time that Complaint was filed, why hadn’t they also arisen for habeas corpus
purposes?
Of course, the Complaint in 2:11-cv-1016 has been amended many times since 2011. It
is perfectly appropriate for forward-looking civil rights litigation to be amended as the conduct
sought to be enjoined changes.
In light of Adams III, it would apparently be appropriate for Bays to rely on new evidence
gathered in the § 1983 litigation to prove his habeas corpus claim that Ohio can never
constitutionally execute him by lethal injection. But gathering new evidence in support of a
habeas claim is different from concluding that a new habeas claim “arises” for limitations
purposes every time new evidence is discovered, even assuming due diligence in finding the new
evidence.
Bays asserts that Ohio’s adoption of a new lethal injection protocol starts the statute of
limitations running anew (Reply, ECF No. 234, at PageID 8714). He asserts he could not have

15

raised these specific lethal-injection invalidity claims until the new protocol was adopted on
October 7, 2016. Id. Yet he never explains how this focus on a newly arising claim related to a
specific protocol is somehow consistent with his claims’ being general Ohio-can-neverconstitutionally-execute-me-by-lethal-injection claims.

The Court has readily accepted the

proposition that a new protocol can generate a new § 1983 claim, but such claims are specific to
the particular protocol. No matter how many times Bays’ counsel repeat the mantra, new facts
are not the same as new habeas claims.

Equitable Tolling

Bays makes no claim that his delay in filing is excused under equitable tolling doctrine.
However, the Court finds that his position is precisely parallel to that of capital habeas petitioner
Walter Raglin. It is settled that equitable tolling applies in appropriate habeas corpus cases.
Holland v. Florida, 560 U.S. 631 (2010).
Whether it fits the precise contours of that doctrine or not, Bays situation deserves the
same equitable consideration given to Petitioner Raglin. The state of the law regarding pleading
lethal injection claims in habeas has been confusing both to the Court and the parties. Until
Adams I it was reasonable for counsel to understand that method of execution claims had to be
brought in § 1983 proceedings. Following Adams I, this Court accepted the extension of the
logic of that case and of Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007), that not only did new
§ 1983 claims arise whenever the protocol was amended, but so did habeas claims on the same
substantive basis. On that basis, counsel could reasonably have concluded they had a year from
adoption of a new protocol to amend a client’s habeas petition to add claims “newly arising”

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under that new protocol. 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 decision and issuance of the mandate in that case, although it was
urged to that position by Petitioner’s counsel. The State of Ohio will not suffer any prejudice
from adopting this approach since it will have to litigate the lethal injection invalidity question in
the § 1983 case in any event.

Conclusion

Bays’ Renewed Motion is GRANTED. He may, not later than April 24, 2017, file a
Supplemental Petition including the four Grounds for Relief set forth in his proposed
amendments (ECF No. 232-1). Those Grounds for Relief shall be numbered Sixteen, Seventeen,
Eighteen, and Nineteen to distinguish them from Grounds for Relief previously filed in this case
and to avoid confusion with those earlier grounds.

April 10, 2017.
s/ Michael R. Merz
United States Magistrate Judge

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