Bays v. Warden Ohio State Penitentiary

Filing 269

SUPPLEMENT TO SUBSTITUTED REPORT AND RECOMMENDATIONS - Having reconsidered the matter in light of the Objections, the Magistrate Judge again recommends that the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Grounds for Relief be dismissed wit hout prejudice to their consideration in the § 1983 case. Petitioner should be granted a certificate of appealability on Ground Five as already ordered (ECF No. 148) and as to Grounds Sixteen, Seventeen, Eighteen, and Nineteen because of the ch anges of course by the Sixth Circuit on the cognizability of lethal injection claims in habeas corpus. Objections to R&R due by 12/20/2017. Signed by Magistrate Judge Michael R. Merz on 12/6/2017. (kpf) Reported at Bays v. Warden, 2017 U.S. Dist. LEXIS 200400 (S.D. Ohio Dec. 6, 2017)Modified on 12/6/2017 (MRM).

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.

SUPPLEMENT TO SUBSTITUTED REPORT AND
RECOMMENDATIONS

This capital habeas corpus case is before the Court on Petitioner’s Objections (ECF No.
267) to the Magistrate Judge’s Substituted Report and Recommendations (the “Substituted
Report,” ECF No. 265). The District Judge has recommitted the matter for reconsideration in
light of the Objections (ECF No. 268). The Warden has decided not to file a response to the
Objections and thus the matter is ripe on recommittal.
The Substituted Report recommends granting the Warden’s Motion to Dismiss Lethal
Injection Claims (ECF No. 250) in light of In re Campbell, 874 F.3d 454 (6th Cir. 2017), cert.
den. sub nom. Campbell v. Jenkins, 2017 U.S. LEXIS 6891 (Nov. 14, 2017).
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
Amendment rights.

1

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
federal law.
(ECF No. 232-1, PageID 8583).
Bays concedes that “Campbell did conclude that Glossip v. Gross, 135 S.Ct. 2726 (2015),
requires Eighth Amendment claims challenging lethal injection to be raised in a civil rights
proceeding under 42 U.S.C. § 1983, and states that such claims are not cognizable in habeas
corpus proceedings.”

(Objections, ECF No. 267, PageID 9022.)

But Petitioner contends,

“Campbell does not qualify as binding precedent on this issue, however, and as a result this Court
should adhere to the Sixth Circuit’s earlier holdings finding that such claims can be raised in a habeas
corpus case.” Id. at PageID 9022-23.
Bays argues a number of reasons why this Court should not follow Campbell.

1.

Bays Claims Campbell Could Not Overrule Adams III

Bays asserts Campbell did not overruled Adams III , He relies first on Davis v. Jenkins, 2017
U.S. Dist. LEXIS 161152 (S.D. Ohio Oct. 2, 2017)(Sargus, Ch. J.). Davis held that In re Tibbetts,
869 F.3d 403 (6th Cir. 2017), cert. pending sub nom. Tibbetts v. Jenkins, Case No. 17-6449, did not

2

overrule Adams v. Bradshaw, 826 F.3d 306, 321 (6th Cir. 2016), cert. denied sub. nom. Adams v.

Jenkins, 137 S.Ct. 814, 196 L. Ed. 2d 60 (Jan. 17, 2017) (“Adams III”), which had upheld the
cognizability in habeas of lethal injection invalidity claims that were “general enough.”

This

Magistrate Judge had himself concluded earlier in this case that Tibbetts and Adams III could stand
together, however tenuously (ECF No. 256, PageID 8959). But Davis was decided three weeks
before Campbell and thus could not take Campbell into account.

However, the Campbell court did not purport to overrule Adams III , but rather to explain
why Adams III did not control the case before it. Campbell deals with Adams III as follows:
After Glossip was decided, the Adams case returned to this Court.
Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016) (Adams III).
Adams III came on appeal after our remand to the district court
resulted in development of the facts. Id. at 309. The factual
development revealed that Adams was protesting the
"psychological toll" resulting from Ohio's recent changes to its
lethal-injection protocol—facts not presented in Adams II. Id. at
320. We immediately responded to this revelation by holding that
Adams "failed to present this claim to the state courts, nor did he
raise it in his habeas petition." Id. This failure, as a matter of law,
barred Adams from pursuing the claim in habeas. Id.; 28 U.S.C. §
2254(b); Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L.
Ed. 2d 594 (1977).
Notwithstanding the procedural default, the panel proceeded to
speculate in dicta about the viability of a psychological-torment
claim. Adams III, 826 F.3d at 320. It ultimately found the claim
unsupported by the substantive law. Even then, the panel
proceeded to discuss—again in dicta—the holding of Adams II in
light of Glossip. Id. at 321. It reiterated that "Adams's case is
distinguishable from Hill [v. McDonough, 547 U.S. 573 (2006)]
because Adams argues that lethal injection cannot be administered
in a constitutional manner, and that his claim 'could render his
death sentence effectively invalid.'" Id. at 321 (quoting Hill, 547
U.S. at 580). Therefore, "to the extent that [a petitioner] challenges
the constitutionality of lethal injection in general and not a lethalinjection protocol, his claim is cognizable in habeas." Id.
We think this dictum mischaracterizes both Adams II and Glossip.
And, of course, dictum in a prior decision—as opposed to a
holding—does not bind future panels, including this one. 6th Cir.
3

R. 32.1(b); United States v. Turner, 602 F.3d 778, 785-86 (6th Cir.
2010) (explaining that statements which are "not necessary to the
outcome" are not binding on later panels). The Adams III panel had
already concluded that the petitioner's claim was both procedurally
defaulted and forfeited. Adams III, 826 F.3d at 320. And although
we may choose to excuse forfeiture in an exceptional case, we
cannot ignore procedural default absent an express finding of cause
and prejudice. Wainwright, 433 U.S. at 86-87. Thus, the statements
"necessary" to the decision in Adams III ended when the panel
acknowledged the default and forfeiture without any indication that
an exception was present. Adams III, 826 F.3d at 320.
Thus, to 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 §
1983.
2017 U.S. App. LEXIS 21094 at *13-15.1
If the Campbell panel had recognized Adams III as holding lethal injection claims were
cognizable in habeas, but refused to follow it on the grounds it was not correct law, our duty as a
trial court would be clear: we would be required to follow Adams III despite Campbell because a
later panel of the Sixth Circuit cannot overrule the published decision of a prior panel. United
States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014); Darrah v. City of Oak Park, 255 F.3d 301, 309
(6th Cir. 2001); Salmi v. Secretary of HHS, 774 F.2d 685, 689 (6th Cir. 1985).
But that is not what happened. Instead, Campbell characterized the key language in
Adams III as dicta. That is part of the holding of Campbell because the Campbell court had to
make that characterization in order to reach its ultimate conclusion that method-of-execution
claims must be brought in § 1983, not habeas.
1

Pinpoint citations for the published decision are not yet available.

4

Bays further complicates the matter by inviting this Court to treat as dictum what the
Campbell court treated as holding because, Bays says, the “cognizability of lethal injection
claims in habeas corpus proceedings was not even an issue before the Court in that case.” (ECF
No. 267, PageID 9023). Thus, he asserts, a district court may treat as a holding part of a prior
published decision of the circuit court even though a later published decision of that court says
the prior language was dicta.
This Magistrate Judge tried faithfully to follow Adams I and allowed lethal injection
invalidity claims in habeas between when Adams I was decided in 2011 and when Glossip was
decided in 2015. Then the undersigned read Glossip literally – method of execution claims must
be brought in § 1983, not habeas. Judge Frost put that reading of Glossip most succinctly when
he wrote “Glossip now undeniably upends that practice,” referring to allowing lethal injection
invalidity claims to be brought in habeas per Adams I. Henderson v. Warden, 136 F. Supp. 3d
847, 851 (S.D. Ohio 2015). “Not so,” said the Adams II and III panels, and this Court dutifully
reversed course again. Then in Campbell a different panel says that it, and we as its subordinate
courts, must follow Glossip and remand method-of-execution claims to § 1983 remedies.
"Unless we wish anarchy to prevail within the federal judicial system, a precedent of this
Court must be followed by the lower federal courts no matter how misguided the judges of those
courts may think it to be." Hutto v. Davis, 454 U.S. 370, 375 (1982). In the judgment of the
undersigned, “following” means obeying what can be discerned as the intent of the superior
court, rather than looking for ways to avoid that result by dissecting appellate court decisions. It
is, of course, perfectly legitimate for counsel to argue for a construction of appellate decisions in
ways that advance their clients’ interests, but trial courts have no clients. We should be engaged
with the appellate courts in “reasoned elaboration” of the law, not in seeking freedom to work

5

our own will in the interstices of appellate courts’ words. As this Magistrate Judge and other
judicial officers of this Court held in the interim between Glossip and Adams III, the best reading
of Glossip is that method-of-execution claims must be brought in § 1983 actions. Bays has
already done just that: he is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11cv-1016, the consolidated § 1983 action challenging Ohio’s method of execution.

2.

Bays Claims Campbell Decided a § 2244(b) Question and Not the Underlying Merits

Bays next argues that Campbell is not binding precedent because the Campbell court was
deciding only whether to grant Bays permission to proceed on a second-in-time habeas petition,
and not the underlying merits. The Magistrate Judge believes this is a misreading of Campbell.
Campbell was before the circuit court on an order of Judge Rice affirming an order of the
undersigned transferring the case to the Sixth Circuit as a second-or-successive habeas
application. Campbell v. Jenkins, 2017 U.S. Dist. LEXIS 130803 (S.D. Ohio Aug. 16, 2017).
Campbell’s counsel from the Capital Habeas Unit of the Federal Public Defender’s Office for
this District resisted strongly this Court’s characterization of Campbell’s petition as second or
successive. That is consistent with the position that office has taken in a whole series of secondin-time lethal injection invalidity claims in habeas.2 Consistent with that position, they moved in
the Sixth Circuit to remand Campbell, arguing the petition was not second-or-successive.
The Campbell court of course dealt thoroughly with that argument. It noted that, as
Campbell argued, the Supreme Court has held a number of kinds of second-in-time habeas
2

See Smith v. Pineda, Case No. 1:12-cv-196; Sheppard v. Bagley, Case No. 1:12-cv-196; McGuire v. Robinson,
Case No. 3:12-cv-310; Franklin v. Robinson, Case No. 3:12-cv-312; Landrum v. Robinson, Case No. 2:12-cv-859;
Jones v. Warden, Case No. 1:14-cv-440; Henness v. Warden, Case No. 2:14-cv-2580; Tibbetts v. Warden, Case No.
1:14-cv-602; Fears v. Jenkins, Case No. 2:17-cv-029; and Wogenstahl v. Warden, Case No. 1:17-cv-298.

6

applications are not second or successive. Campbell, 2017 U.S. App. LEXIS 21094 at *3-4,
citing, inter alia, Panetti v. Quarterman, 551 U.S. 930 (2007).
Before reaching the second-or-successive issues, however, the Campbell court decided to
clarify what kinds of claims can be made in habeas, concluding that “[a]ll Baze and Glossip
require is that -- in the peculiar context of method-of-execution claims -- the death-row inmate
must proceed under § 1983.” Id. at *5-16. It then decided that Campbell’s claims were not
cognizable in habeas:
We simply hold that, on these facts, Campbell has not presented
any new habeas claims that (if meritorious) would require us to
vacate his death sentence. As we noted in rejecting Campbell's first
argument-even if we were to agree with Campbell on the substance
here, Ohio would still be permitted to execute him. The proper
method for Campbell to bring these claims is in a § 1983 action
under Baze-as he has done in the district court. See In re Ohio
Execution Protocol Litig. If he prevails on the merits3, the district
court will enjoin Ohio officials from executing Campbell by lethal
injection. Again, his claim is newly ripe, but he is here attempting
to seek relief in the wrong forum.
Campbell, 2017 U.S. App. LEXIS 21094 at *19-20.

The Campbell court then decided

Campbell’s petition was second-or-successive and did not qualify for permission to proceed
under 28 U.S.C. § 2244(b). Id. at *23-24.
While conceding the Sixth Circuit found Campbell’s lethal injection invalidity claims
were not cognizable in habeas, Bays argues “[t]his Court should find that the statements in
Campbell relating to cognizability are entitled to little, if any, precedential weight.” (ECF No.
267, PageID 9024.)

As authority, Bays cites decisions from other circuits which he says

disclaim application of second-or-successive decisions to the merits of habeas cases. (ECF No.

3

Campbell did not prevail on the merits at the preliminary injunction stage. This Court denied preliminary
injunctive relief. In re: Ohio Injection Protocol Litig., 2017 U.S. Dist. LEXIS 182406 (S.D. Ohio Nov. 3, 2017).
Campbell did not appeal and seek a stay of execution before his scheduled execution date of November 15, 2017,
but has appealed since his execution was stopped in process on that date.

7

267, PageID 9024-25, citing In re Rogers, 825 F.3d 1335, 1340 (11th Cir. 2016); United States v.
Seabrooks, 839 F.3d 1326, 1349 (11th Cir. 2016) (Martin, J., concurring); Rey v. United States, 786
F.3d 1089, 1091 (8th Cir. 2015); Walker v. United States, CV 316-052, 2017 WL 957369, at *6 (S.D.
Ga. Mar. 10, 2017); and James v. Walsh, 308 F.3d 162, 169 (2d Cir. 2002).)
Bays concedes that the Sixth Circuit “does sometimes address the merits of a petitioner’s
underlying claims when denying authorization to proceed under § 2244(b)” (ECF No. 267, PageID
9025, citing Moreland v. Robinson, 813 F.3d 315 (6th Cir. 2016), and Brooks v. Bobby, 660 F.3d 959
(6th Cir. 2011)). However, Bays says, the Sixth Circuit “does not appear to have considered the
question of what type of precedential weight these decisions are entitled to apart from the
jurisdictional issues that arise in the context of second or successive petitions.” Because of that,

This Court should conclude that rulings of this nature have limited
precedential value with respect to the merits of the petitioner’s
underlying claims. The Campbell decision in particular was
decided without full briefing or oral argument regarding the actual
merits of the petitioner’s case, and as a result it should not be relied
upon to foreclose similar claims that are properly raised in a first
federal habeas corpus petition.
Id.
Examining the case law cited by Bays, the Magistrate Judge finds no general disclaimer of
the sort for which these cases are cited by Petitioner. In re Rogers, supra, declined to allow a
second-or-successive application under § 2255 to raise a claim under Johnson v. United States, 135

S.Ct. 2551 (2015), because it found his second-in-time § 2255 motion did not state a claim under
Johnson, i.e., it was without merit, where the prior conviction relied on to impose an Armed
Career Criminal Act enhancement categorically qualified under the elements clause of the
ACCA, and not under the residual clause declared unconstitutional by Johnson. In brief, it
decided exactly the same question decided in Campbell – whether the second-in-time habeas
application contained a cognizable claim. In passing the court noted it ordinarily does not have
8

time4 or a full enough record to make that decision, but then it proceeded to do so.
United States v. Seabrooks, supra, is a decision on direct appeal and does not involve any
second-or-successive decision; the cited concurring opinion of Judge Martin does not even contain
any dictum about decisions under 28 U.S.C. § 2244(b).
Rey v. United States, supra, was an appeal from a dismissal of a second-in-time § 2255
motion as second or successive. Apparently the Eighth Circuit allows a district court to dismiss a
second-in-time application that it finds to be second or successive, whereas Sixth Circuit practice
requires transfer to the circuit court. In any event, the Eighth Circuit in Rey said nothing about the
precedential value of § 2244(b) decisions.
Walker, supra, (also reported at 2017 U.S. Dist., LEXIS 34621), is another case under
Johnson v. United States, supra. Walker received circuit court permission to file a second § 2255
application because the Supreme Court had held Johnson to apply retroactively and it was unclear
which of Walker’s prior convictions had been used to enhance his sentence. In granting permission,
the Eleventh Circuit noted that its allowance of a second § 2255 motion involved only a prima facie
determination of cognizability. At least according to Magistrate Judge Epps’ Report, the Eleventh
Circuit did not say its 2244(b) decisions could not ever reach the merits, but merely that it did not in
this case.5
In James v. Walsh, supra, the Second Circuit found a prisoner’s second-in-time § 2254

petition was not second or successive because his claim had not yet arisen when he filed his prior
habeas petition.

Because the petition was not second or successive, the Second Circuit

4

Note the thirty-day time limit on deciding applications to pursue a second-or-successive application provided in 28
U.S.C. § 2244(b)(2)(D). Apparently some circuit courts treat that statutory language as precatory; the Sixth Circuit
often takes more than thirty days to decide such applications.

5

Counsel for Bays may know already or can quickly learn from the non-capital side of the Federal Defender’s
Office that the district courts received large numbers of Johnson claims after that case was decided, in large part
because it was found to be retroactive by the Supreme Court. Persons still confined under long ACCA sentences or
under the parallel Guidelines career offender classification had often filed an original § 2255 application before
Johnson was decided.

9

transferred it to the district court, concluding it had no jurisdiction to consider the merits because
it was not reviewing a judgment of a district court. This parallels the practice of the Sixth Circuit
when it determines that a second application is not second or successive. Jackson v. Sloan, 800

F.3d 260, 261 (6th Cir. 2015), citing Howard v. United States, 533 F.3d 472 (6th Cir. 2008); In re:
Cedric E. Powell, Case No. 16-3356, 2017 U.S. App. LEXIS 1032 (6th Cir. Jan. 6, 2017).
None of these out-of-circuit decisions has anything to say about whether a decision on a
second or successive question provides any authority for deciding the cognizability of a particular
constitutional claim in habeas corpus. In contrast, the Campbell court took considerable time to
discuss the issue and plainly intended its decision to provide guidance to the district courts, whether
or not it is binding precedent.
Bays cites two Sixth Circuit cases which he admits cut against his argument, Moreland v.
Robinson, 813 F.3d 315 (6th Cir. 2016), and Brooks v. Bobby, 660 F.3d 959 (6th Cir. 2011).

In

Moreland the circuit decided that post-judgment motions to amend a habeas petition or for relief
from judgment under Fed. R. Civ. P. 60(b)(6) are second-or-successive habeas applications if they
meet the test of Gonzalez v. Crosby, 545 U.S. 524 (2005). It nevertheless affirmed this Court’s

denial of Moreland’s motions on a finding that the new claims would be without merit. Brooks
is a shadow-of-the-gallows decision denying on November 9, 2011, a stay of an execution set for
and carried out on November 15, 2011. It does address the merits of a second-or-successive
habeas application, finding it was second-or-successive and that the claims were barred by the
law of the case.

Whether or Not It Is Binding, Campbell Was Correctly Decided

As set out at length in the Substituted Report (ECF No. 265, PageID 9010-13), counsel
10

for death row inmates in Ohio have had pending § 1983 cases challenging lethal injection
protocols in Ohio since very shortly after the Supreme Court authorized bringing such challenges
in § 1983 litigation in Nelson v. Campbell, 541 U.S. 637 (2004). That litigation is presently
consolidated in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv-1016. As the Campbell
majority notes, that form of litigation is ideally suited to prevent the unconstitutional execution
of any person in Ohio. It provides ordinary civil discovery under the Federal Rules of Procedure
in contrast to the very limited discovery allowed by the Rules Governing § 2254 Cases. It allows
for full evidentiary hearings, both on preliminary injunction and at trial, in contrast to the very
limited opportunity to take evidence in a habeas case. Cullen v. Pinholster, 563 U.S. 170, 190
(2011).

It is not subject to the second-or-successive gateway that applies in habeas.

If

successful, it provides complete relief from execution by any unconstitutional means. Why,
then, do death row counsel insist on presenting substantively identical constitutional claims in
both habeas and § 1983 simultaneously? Hope that the two cases will be assigned to different
judges? Or is it just that complexity breeds delay which almost always serves the interest of
death row inmates?
Whether or not Campbell creates binding precedent, it is clearly intended to provide
guidance to the district courts by sorting out the appropriate forum in which to bring method-ofexecution claims. Whether or not we are bound to follow Campbell, we should do so because it
makes the appropriate allocation of those claims to § 1983 cases.

11

The Nineteenth Ground for Relief

The Nineteenth Ground for Relief alleges Bays’ execution under Ohio’s current
execution protocol will be unconstitutional “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 federal law.” (ECF No. 232-1,
PageID 8583.)
In the original Report on Respondent’s Motion to Dismiss, the Magistrate Judge
recommended Ground Nineteen be dismissed “as noncognizable because it is based on federal
statutory law instead of the Constitution (Report, ECF No. 256, PageID 8959-61). Bays objected
at length (ECF No. 258). The Substituted Report recommended dismissal of Ground Nineteen
on the same basis as Sixteen, Seventeen, and Eighteen, to wit, the holding in Campbell (ECF No.
265, PageID 9015-16).
Bays objects that Campbell applies only to Baze/Glossip Eighth Amendment method-ofexecution claims and not to statutory claims such as he pleads in his Nineteenth Ground. This
Supplement will deal first with the scope-of-Campbell objection and then those raised in Bays’
prior set of Objections.

Bays Claims Campbell is Limited to Eighth Amendment Claims

Bays asserts Campbell does not apply to his Nineteenth Ground for Relief. He admits
that Campbell pleaded a claim parallel to the Nineteenth Claim here and that the Sixth Circuit
dismissed it, but because there is no discussion of that claim, concludes “the most likely

12

explanation is that the Sixth Circuit simply overlooked6 the petitioner’s statutory claim in
conducting its analysis.” (Objections, ECF No. 267, PageID 9026.) Bays is correct that there is
no discussion of in the opinion of Campbell’s Fourth Ground for Relief which is a verbatim copy
of Bays’ Nineteenth Ground for Relief.7 There is also no discussion of the claim Campbell
attempted to add under Hurst v. Florida, 577 U.S. ___, 136 S. Ct. 616 (2016). Nevertheless, the
Sixth Circuit dismissed Campbell’s entire Petition.

2017 U.S. App. LEXIS at *24.

The

Campbell opinion does not speak to Campbell’s Fourth Ground for Relief but did dismiss that
claim and the Hurst claim sub silentio.

Previously Raised Objections

In the original Report on the instant Motion to Dismiss, the Magistrate Judge found that,
because this is a case brought under 28 U.S.C. § 2254, the Court could grant relief only if a
violation of the federal Constitution was shown (Report, ECF No. 256, PageID 8960). The
Report distinguished the cases cited by Bays and concluded:
In sum, Bays has cited no federal precedent for extending § 2254
relief to violations of federal statutes and particularly no precedent
of the United States Supreme Court holding that the statutes cited
in the Nineteenth Ground for Relief preempt state execution
statutes and thus provide a constitutional basis for relief in a §
2254 case.
Id. at PageID 8961.

6

Perhaps because at the time Campbell was handed down on October 25, 2017, Campbell was facing a November
15, 2017, execution date and the Court of Appeals was forced to act swiftly.
7

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 process, and the only manner of
execution available for execution depends on state execution laws that are preempted by federal law. (Case No.
2:15-cv-1702, ECF No. 47, PageID 897.)

13

Bays objects that the Magistrate Judge misread Reed v. Farley, 512 U.S. 339 (1994), as a
case arising under 28 U.S.C. § 2255 whereas it arose under § 2254. This objection is well taken
because Reed was a § 2254 case. Reed had been transferred from a federal prison to Indiana
state custody under the Interstate Agreement on Detainers Act and was not tried within 120 days
after transfer as provided in that Act. Thus he claimed Indiana violated his Sixth Amendment
right to a speedy trial. In denying relief, the Supreme Court recognized that 28 U.S.C. § 2254(a)
authorizes federal courts to grant habeas relief to a person held “in custody in violation of the
Constitution or laws or treaties of the United States.” Id. at 347. The Court noted, however, that
it had limited habeas review under §2254(a) to those errors that qualify as “a fundamental defect
which inherently results in a complete miscarriage of justice [or] an omission inconsistent with
the rudimentary demands of fair procedure.” Id. at 348, citing Hill v. United States, 368 U.S.
424 (1962). It found no such error in Reed’s case where he failed to object at the time his trial
date was set beyond the 120-day period provided for in the Interstate Agreement on Detainers.
Bays also relies on Bashaw v. Paramo, Case No. EDCV 13-829-MWK (KK), reported at
2014 WL 7331938 (C.D. Cal. Dec. 18, 2014), a case arising under § 2254. Bashaw’s claims
were pleaded only as constitutional claims, but Magistrate Judge Kato noted that “to the extent
Petitioner’s claim relies on the Americans with Disabilities Act or the Code of Federal
Regulations, it lacks merit.” Id. at *5. She applied the “fundamental defect” language from
Reed and found that Bashaw had not established a fundamental defect. Id.
Thus the two cases relied on by Bays – Reed and Bashaw – establish in theory that
habeas will lie for a federal statutory violation, although both courts found no right to habeas
relief in the particular cases before them. Bays is correct that habeas under § 2254 will lie for
federal statutory violations that create a fundamental defect in the process. The Magistrate

14

Judge’s conclusion that only constitutional violations can be litigated in habeas was incorrect and
is withdrawn.
Bays also objects that 28 U.S.C. § 2254(d) does not apply to his Nineteenth Claim
because it was never presented to the state courts. To the extent the original Report could be
read to imply a need to defer to a state court decision under § 2254(d), the Magistrate Judge
agrees that implication would be incorrect. There is no relevant state court adjudication of this
claim.
The question before the Court, then, is whether Bays’ Nineteenth Ground pleads a
violation of a federal statute that qualifies as a fundamental defect “which inherently results in a
complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of
fair procedure.” Reed, supra, at 347. The federal statutes Bays claims Ohio will violate in
executing him are “various [unspecified] provisions of the Controlled Substances Act (CSA), 21
U.S.C. §§ 801, et seq., the Federal Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. §§ 301 et
seq., and federal regulations issued by the Drug Enforcement Agency (DEA) and Food and Drug
Administration (FDA).” (Second Amended Petition, ECF No. 247, ¶ 607, PageID 8883-84.)
Bays also asserts that Ohio’s lethal injection statute, Ohio Revised Code § 2949.22(A) and the
Execution Protocol adopted to carry out that statute are preempted by the same federal statutes
and regulations. Id. at ¶ 610, PageID 8884.
The time horizon of these claims makes clear that they belong in a forward-looking §
1983 complaint and not in a habeas corpus petition.
Petitioner Bays was convicted in 1995 of the November 1993 murder of Charles
Weaver.8 The conviction was affirmed on appeal by both the Second District Court of Appeals

8

The litigation history is recited at length in the Magistrate Judge’s Report and Recommendations on the merits.
(ECF No. 109.)

15

and the Ohio Supreme Court. His last state court proceeding tolling the habeas corpus statute of
limitations concluded on November 9, 2007, when he voluntarily dismissed his petition for postconviction relief under Atkins v. Virginia, 536 U.S. 304 (2002). He then filed his original
Petition in habeas corpus in this Court a year later on November 6, 2008. Judge Rose adopted
the Magistrate Judge’s recommendations on the merits on August 6, 2012 (ECF No. 134), yet
there is still no judgment in the case because of continued litigation over whether lethal injection
invalidity claims can be litigated in habeas corpus.
Although Ohio has execution dates set through August 24, 2022, it has set none for
Petitioner Bays. What will happen in Ohio execution law, policy, and practice between now and
then? Projections are difficult to make, given the dynamic nature of this area of the law, but it is
very likely there will be a great deal of change of various kinds. This Court stands ready to
adjudicate in a § 1983 case the claims Bays’ makes in his Nineteenth Ground for Relief when his
execution is imminent and it is at least known what method Ohio then proposes to use. 42
U.S.C. § 1983, as noted above, provides the full range of federal civil remedies both pre- and
post-hearing, to prevent an execution that would be unconstitutional. As also noted above, Bays
is a plaintiff in just such a case, In re Ohio Execution Protocol Litig., Case No. 2:11-cv-1016.
But Bays claims that § 1983 remedy is not adequate to protect his rights. In addition, he seeks to
have his conviction, now more than twenty years old, declared void on the basis of facts which
may not yet have happened.
Although Campbell only expressly addressed Eighth Amendment claims under Baze and
Glossip, its logic is fully applicable here. The Campbell court wrote:
[T]he 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
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remedied by an injunction prohibiting the state from taking certain
actions, rather than a writ of habeas corpus that vacates the
sentence entirely.
A review of fundamental habeas and § 1983 principles confirms
that this is the correct view of the law. Only when a serious error
infects the very fact of a death sentence can the writ grant relief.
See Heck, 512 U.S. 477, 481, 114 S. Ct. 2364, 129 L. Ed. 2d 383;
Buck v. Davis, 137 S. Ct. 759, 777, 197 L. Ed. 2d 1 (2017). This
principle arises because habeas relief does not exist to ferret out
every constitutional violation, or even to directly prohibit the
government from breaking the law; instead, it exists to relieve the
prisoner of an unlawful sentence. See, e.g., Stone v. Powell, 428
U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); Gall v.
Scroggy, 603 F.3d 346, 353 (6th Cir. 2010). To that end, the writ
necessarily "provides the petitioner the right to relief from all
direct and collateral consequences of the unconstitutional
[sentence]." Gall, 603 F.3d at 353 (emphasis added). Thus, if a
petitioner's legal theory would not inherently require the
nullification of his death sentence, he has no business proceeding
in a habeas court. The Great Writ is not concerned with the
piecemeal reformation of an imperfect criminal justice system.
In contrast, § 1983 is engineered to accomplish this lofty goal. The
statute empowers a court to enjoin, "in equity," "the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws" of the United States. 42 U.S.C. § 1983 (emphasis
added). When properly invoked, the statute can be used to compel
the government to recognize that even the guilty have rights, and
that even a conviction or death sentence does not deprive a person
of their humanity. See, e.g., Baze, 553 U.S. at 52; Hudson v.
McMillian, 503 U.S. 1, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992);
Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1
(1985); Estelle v. Gamble, 429 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d
251 (1976). Indeed, Ohio death-row inmates—including
Campbell—are currently litigating the constitutionality of the
protocol in a § 1983 action, seeking a declaration that Ohio's
execution protocol is torturously painful. See In re Ohio Execution
Protocol Litig., No. 2:11-cv-1016 (S.D. Ohio). In fact, Campell's
motion for a preliminary injunction to stay execution is set for
hearing this very week. Ultimately, this is the relief that all
method-of-execution claims seek: an order directed at state
officials, declaring that the state's ends do not justify its means, and
requiring the state to find another, less cruel way to enforce a
judgment of death against the prisoner.

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2017 U.S. App. LEXIS 21094, *11-13.

Following the guidance of Campbell, this Court should hold that method-of-execution
claims, whether or not they are Baze/Glossip claims, belong in § 1983 litigation and not in
habeas.

The Nineteenth Ground for Relief should be dismissed without prejudice to its

consideration on the merits in In re Ohio Execution Protocol Litig. Such merits adjudication
would include deciding whether Bays’ Nineteenth Ground for Relief as pleaded in the Fpourth
Amended Complaint in Case No. 2:11-cv-1016 state a claim for relief. Defendants in that case
have a pending Motion to Dismiss (ECF No. 1379) which will be ripe for decision within the
month.

Bays’ Claim Under Atkins v. Virginia

On January 3, 2014, the Court rejected Petitioner’s Motion to add two Grounds for Relief
related to his claim under Atkins v. Virginia, supra (ECF No. 173). However, no ruling has yet
been made on whether to grant or deny a certificate of appealability on those claims. The
Substituted Report recommended that the Court enter final judgment in the case, but Rule 11 of
the Rules Governing § 2254 Cases requires that the appealability issue be decided when final
judgment is entered. Instead of submitting argument on the issue, Bays asks for a deadline to
move to expand the certificate of appealability (ECF No. 267, PageID 9028). However, the
Magistrate Judge believes the issues were thoroughly vetted when the Motion to Amend was
litigated. Because reasonable jurists would not disagree with the denial of Grounds Fourteen and
Fifteen, a certificate of appealability should be denied on those grounds.

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Conclusion

Having reconsidered the matter in light of the Objections, the Magistrate Judge again
recommends that the Sixteenth, Seventeenth, Eighteenth, and Nineteenth Grounds for Relief be
dismissed without prejudice to their consideration in the § 1983 case. Petitioner should be
granted a certificate of appealability on Ground Five as already ordered (ECF No. 148) and as to
Grounds Sixteen, Seventeen, Eighteen, and Nineteen because of the changes of course by the
Sixth Circuit on the cognizability of lethal injection claims in habeas corpus.

December 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
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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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