Bays v. Warden Ohio State Penitentiary
SUBSTITUTED REPORT AND RECOMMENDATIONS - It is respectfully recommended that Grounds for Relief Sixteen, Seventeen, Eighteen, and Nineteen, pleaded in the Second Amended Petition, be dismissed for failure to state a claim upon which relief can be granted in habeas corpus. Dismissal should be without prejudice to pursuing these claims in the Protocol Case. Objections to R&R due by 11/20/2017. Signed by Magistrate Judge Michael R. Merz on 11/6/2017. (kpf)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
- vs -
Case No. 3:08-cv-076
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
WARDEN, Ohio State Penitentiary,
SUBSTITUTED REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss
Lethal Injection Claims (ECF No. 250). The Magistrate Judge recommended granting the
Motion in part and denying it in part (Report, ECF No. 256). Both parties objected (ECF Nos.
257, 258) and filed Responses to each other’s Objections (ECF Nos. 260, 263). Judge Rose
recommitted the matter for reconsideration in light of the Objections (ECF No. 259). Then the
Sixth Circuit handed down In re Campbell, ___ F.3d ___, 2017 U.S. App. LEXIS 21094 (6th Cir.
Oct. 25, 2017).
Because Campbell changes the Magistrate Judge’s analysis of the issues
involved, the prior Report is WITHDRAWN and the issues are here considered de novo.
The Grounds for Relief in question appear in the Amended Petition filed July 24, 2017,
(ECF No. 247) as follows:
SIXTEENTH 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
SEVENTEENTH 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.
EIGHTEENTH 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.
NINETEENTH 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 process, and the only manner of execution available for
execution depends on state execution laws that are preempted by
(ECF No. 232-1, PageID 8583.) The Magistrate Judge permitted amendment of the Petition to
add these claims, analyzing them as fitting within the “cognizability window” for lethal injection
invalidity claims in habeas corpus recognized in Adams v. Bradshaw, 826 F.3d 306 (6th Cir. June
13, 2016) (Decision and Order, ECF No. 235, PageID 8728, reported at Bays v. Warden, 2017
U.S. Dist. LEXIS 54466 (S.D. Ohio Apr. 10, 2017.) The Warden then filed the instant Motion to
Dismiss based on the Sixth Circuit’s decision, In re: Tibbetts, 869 F.3d 403, (6th Cir. Jul 24,
2017). The Magistrate Judge applied Tibbetts in the initial Report, but while Tibbetts is relevant
to the issues involved, Campbell is dispositive for reasons that follow.
Richard Bays is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv1016 (the “Protocol Case”). 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, e.g.,
In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S. Dist. LEXIS 11019
(S.D. Ohio Jan 26, 2017), rev’d, 860 F.3d 881 (6th Cir. June 28, 2017)(en banc); cert den. sub
nom. Otte v. Morgan, ___ U.S. ___, 2017 WL 3160287 (July 25, 2017); In re: Ohio Execution
Protocol Litig. (Otte), 2017 U.S. Dist. LEXIS 145432 (S.D. Ohio Sept. 8, 2017); In re: Ohio
Execution Protocol Litig. (Campbell & Tibbetts), 2017 U.S. Dist. LEXIS 182406 (S.D. Ohio
Nov. 3, 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).
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 which 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
Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of
the Protocol Case, was filed December 8, 2004, and references an earlier filing in Case No. 2:04cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in the
Protocol Case, Cooey remains pending. The same organizations of attorneys who provide
representation to plaintiffs in the Protocol Case – 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.
Petitioners’ bar has had an apparent strategy for some years to have parallel habeas and §
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
Attempting to obey Adams I, this Court permitted amendments of capital habeas
petitions to add lethal injection claims and indeed treated those claims as newly arising whenever
Ohio’s lethal injection protocol was amended.
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
brought” language in Glossip 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 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). The Court changed course again and
recognized method of execution claims as cognizable in habeas.
Respondent’s instant Motion to Dismiss is grounded in In re: Raymond Tibbetts, 869
F.3d 403 (6th Cir. 2017). In the original Report, the Magistrate Judge concluded that Tibbetts
suggested that lethal-injection-invalidity claims of the sort pleaded in Grounds for Relief
Sixteen, Seventeen, and Eighteen were more properly pursued in a § 1983 proceeding, but that
did not imply that they were not cognizable in habeas (Report, ECF No. 256, PageID 8959). In
that way, Tibbetts and Adams III could be read as consistent with each other, a desirable result
since they are both published circuit opinions. Id. In any event, the principal issue in Tibbetts
was whether his petition in that case was second-or-successive, not an issue here since this is
Bays’ first habeas case challenging his capital conviction.
Campbell changes the analysis. Campbell, like Tibbetts, was also before the Sixth Circuit
on a second-or-successive transfer from this Court. Interpreting Glossip, the circuit court held
Glossip therefore closed the hypothetical door left open by Nelson,
Hill, and Adams II. No longer can a method-of-execution claim
impair a death sentence itself. And since a method-of-execution
claim can no longer "attack the validity of the prisoner's conviction
or death sentence," a habeas court cannot act upon it. Id. at 2738.
Thus, the Glossip Court necessarily barred all habeas petitions
challenging "a particular application of a particular protocol to a
particular person" as unconstitutionally painful. In re Tibbetts, 869
F.3d 403, 406 (6th Cir. 2017). These challenges are properly
remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
Campbell at *11-12 (emphasis in original). The Campbell court noted the language in Adams III
on which capital petitioners and this Court have relied to justify pleading lethal-injectioninvalidity claims in habeas and declared that language to be non-binding dictum. Id. at *15. It
[T]o the extent that Adams III purported to permit Baze-style
habeas claims that refuse to concede the possibility of an
acceptable means of execution, it is not controlling. Since Glossip's
holding directly addressed that question, it is binding on us, and we
follow it today. In doing so, we do not intend to diminish the
importance or correctness of the holding in Adams II that § 1983
and habeas are not mutually exclusive as a per se rule. All Baze
and Glossip require is that— in the peculiar context of method-ofexecution claims—the death-row inmate must proceed under §
Campbell, supra, at *15.
In allowing the Sixteenth, Seventeenth, and Eighteenth Grounds to be added to the
Petition, this Court was attempting faithfully to follow Adams III. Because Adams III was
written to clarify Adams II at the request of one of the parties, this Court assumes the added
language in Adams III was carefully chosen. Moore’s Federal Practice notes, however, that “it is
not always clear what the holding is in a particular case” because “[h]oldings may be given broad
or narrow interpretations.” 18 James Wm. Moore et al., Moore’s Federal Practice §134.03
(3d ed. 1999). Even language that is dictum may be carefully chosen. In any event, if the
relevant language in Adams III does not bind or no longer binds subsequent Sixth Circuit panels,
it does not bind this Court. Campbell does.
The Court has been advised by counsel in the capital case of Bobby Sheppard (Sheppard
v. Jenkins, Case No. 1:12-cv-198) that a petition for certiorari is intended to be filed in Campbell.
However, because Mr. Campbell is scheduled to be executed November 15, 2017, that case is
likely to become moot before the Supreme Court could grant certiorari.1
Campbell is fatal to the cognizability of Bays’ Sixteenth, Seventeenth, and Eighteenth
Grounds for Relief in habeas corpus. Each of them is a method/manner of execution claim under
the Eighth or Fourteenth Amendment seeking to have Bays’ death sentence invalidated without
pleading an alternative method or manner. As noted above, Bays is a plaintiff in the Protocol
Case and has in that case pleaded an alternative method of execution. Under Campbell, he must
be remanded to that remedy.
The original Report recommended dismissal of Ground Nineteen as non-cognizable
because it is based on federal statutory law instead of the Constitution. Bays has objected at
length (ECF No. 263).
Rather than deal with the legal argument in the Objections, the
Magistrate Judge now recommends Ground Nineteen be dismissed on the same basis as applied
Of course, Campbell’s execution could be stayed to allow Supreme Court consideration or it could be seen as a live
case under the “capable of repetition but evading review” rubric. In any event, counsel should not expect favorable
treatment of a request to suspend consideration of the Motion to Dismiss pending certiorari in Sheppard, given that
the Supreme Court denied certiorari in Adams III when given an opportunity to clarify Glossip.
to Grounds Sixteen, Seventeen, and Eighteen above, to wit, that method/manner of execution
claims are not cognizable in habeas corpus, per Campbell.
Based on the foregoing analysis, it is respectfully recommended that Grounds for Relief
Sixteen, Seventeen, Eighteen, and Nineteen, pleaded in the Second Amended Petition, be
dismissed for failure to state a claim upon which relief can be granted in habeas corpus.
Dismissal should be without prejudice to pursuing these claims in the Protocol Case.
Because this disposes of all claims made, the Court should direct the Clerk to enter final
judgment dismissing all claims in the original Petition with prejudice and all claims in the
Second Amended Petition without prejudice. As already ordered (ECF No. 148), Petitioner
should be granted a certificate of appealability on Ground Five. Given the changes of course by
the Sixth Circuit on the cognizability of lethal injection in habeas corpus, Bays should be granted
a certificate of appealability on Grounds Sixteen, Seventeen, Eighteen, and Nineteen.
November 6, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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. 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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