Gapen v. Bobby
SUPPLEMENTAL MEMORANDUM OPINION ON DENIAL OF MOTION TO AMEND - Conclusion Having reconsidered the matter in light of the Objections, the Magistrate Judge again concludes the proposed amendment would be futile and respectfully recommends the District Court overruled the objections. Signed by Magistrate Judge Michael R. Merz on 4/20/2017. (srb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
Case No. 3:08-cv-280
- vs District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz
DAVID BOBBY, Warden,
SUPPLEMENTAL MEMORANDUM OPINION ON DENIAL OF
MOTION TO AMEND
This capital habeas corpus case is before the Court on Petitioner’s Motion for Leave to
File an Amended Petition to Address Newly Ripe Claims under Hurst v. Florida, 577 U.S. ___,
136 S. Ct. 616 (2016) (ECF No. 214). The Magistrate Judge denied the Motion (Decision, ECF
No. 218), Petitioner objected (Objections, ECF No. 221), and Judge Rice has committed the
matter for additional analysis (ECF No. 223).
The Decision held that a motion to amend a habeas petition is a pretrial non-dispositive
motion which Magistrate Judges are authorized to decide in the first instance (ECF No. 218 at
PageID 18615, citing 28 U.S.C. § 636(b)(1)(A) and Monroe v. Houk, No. 2:07-cv-258, 2016
U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.)). The Objections do not
disagree, but argue the correct standard of review on the pure question of law of the application
of Hurst to Ohio is de novo. (ECF No. 221, citing Gander v. Glaser, 785 F. Supp 684 (S.D.
Ohio 1992)(Kinneary, J.), aff’d., 19 F.3d 1432 (6th Cir. 1994)(Table)). The Magistrate Judge
The Magistrate Judge and Petitioner likewise agree that the key Fed. R. Civ. P. 15 factor
on the instant request to amend is whether the amendment would be futile. The Decision holds
that an amended petition containing a Hurst claim would be subject to dismissal under Fed. R.
Civ. P. 12(b)(6) and would therefore be futile. The Decision also holds that Hurst does not apply
retroactively to cases pending on collateral review such as Mr. Gapen’s. Petitioner objects to
both of these conclusions.
Applicability of Hurst to the Ohio Capital Sentencing Scheme
In Hurst the United States Supreme Court applied the Apprendi line of cases, particularly
Ring v. Arizona, 536 U.S. 584 (2002), to Florida’s capital sentencing scheme. The Court found,
“Like Arizona at the time of Ring, Florida does not require the jury to make the critical findings
necessary to impose the death penalty. Rather, Florida requires a judge to find these facts.” 136
S. Ct. at 621.
The Decision concluded Hurst is correctly read as holding that “the relative weight of
aggravating circumstances and mitigating factors is question of fact akin to an element under the
Apprendi line of cases, that is, a fact necessary to be found [by the jury] before a particular
punishment can be imposed . . . ,” (ECF No. 218, PageID 18619). The Decision found Ohio’s
death penalty scheme to be “materially different” from Florida’s in that it “required that, before a
sentence of death could be imposed, the jury must find, beyond a reasonable doubt, that the
aggravating circumstances outweighed the mitigating factors.” Id. at PageID 18619-20.
The Decision noted that Ohio trial judges must also find the aggravating circumstances
outweigh the mitigating factors independently of the jury, “[b]ut that weighing is, so to speak, on
top of the jury’s weighing: if the jury does not find the aggravating circumstances outweigh the
mitigating factors, the judge cannot overruled that finding.” Id. at PageID 18620.
“Remarkably Similar” but “Materially Different”
Gapen’s principal objection is that “[t]he Magistrate Judge’s analysis gives short shrift to
the conclusions of Ohio courts, which have repeatedly found that Ohio’s capital sentencing
scheme parallels Florida’s in all critical respects.” (Objections, ECF No. 221, PageID 18633.)
With that lead, one might expect a string citation of Ohio cases purportedly in point. In fact, the
first Ohio citation is three pages later to State v. Rogers, 28 Ohio St. 3d 427 (1986).1
Rogers was before the Ohio court on remand from the United States Supreme Court for
review in light of Caldwell v. Mississippi, 472 U.S. 320 (1985). In Caldwell the Supreme Court
reversed a death sentence for prosecutorial misconduct in leading the jury to discount its
responsibility for a death sentence by saying whatever the jurors did would be reviewed by an
appellate court. Rogers also involved a prosecutorial misconduct claim. The Ohio Supreme
Court distinguished Ohio’s capital sentencing scheme from the Mississippi scheme at issue in
At the outset of the within analysis, it should be stated that Ohio's
statutory framework for the imposition of the death penalty is
altogether different from that of Mississippi, most importantly in
that Ohio has no "sentencing jury." All power to impose the
punishment of death resides in the trial court which oversees the
mitigation or penalty phase of the trial. . . .
Note that Rogers was decided fourteen years before Apprendi and sixteen years before Ring. Apprendi was largely
unanticipated by the habeas corpus bar.
Immediately obvious is that, under this provision, the jury provides
only a recommendation as to the imposition of the death penalty.
The trial court must thereafter independently re-weigh the
aggravating circumstances against the mitigating factors and issue
a formal opinion stating its specific findings, before it may impose
the death penalty. R.C. 2929.03(F). It is the trial court, not the
jury, which performs the function of sentencing authority. Thus, no
"sentencing jury" was involved in the proceedings below.
Furthermore, as actual sentencer, the trial court was "present to
hear the evidence and arguments and see the witnesses" and was in
a position to fully appreciate a plea for mercy. Caldwell, supra, at
Furthermore, Ohio's sentencing procedures are not unique both
because a separate sentencing hearing is utilized, and because
capital sentencing authority is invested in the trial judge. See, e.g.,
Ala. Code Subsection 13A-5-47 (1986 Supp.) (judge is not bound
by jury's advisory verdict); Ariz. Rev. Stat. Annot. Section 13703(B), (C) and (D) (1986 Supp.) (jury is completely excluded
from sentencing); Colo. Rev. Stat. Section 16-11-103 (2)(C)
(1985 Supp.) (trial judge may vacate a jury finding if clearly
erroneous); Fla. Stat. Section 921.141(2) (1982 Cum. Supp.)
(trial court independently re-weighs aggravating versus mitigating
circumstances after an advisory jury verdict); Idaho Code Section
19-2515(d) (1986 Supp.) (trial court alone sentences and conducts
a mitigation hearing), etc.
Florida's statutory system, which is remarkably similar to Ohio's,
was expressly upheld in the case of Spaziano v. Florida (1984),
468 U.S. 447.
28 Ohio St. 3d at 429-30 (second emphasis supplied)(parallel citations omitted).
Gapen also cites State v. Davis, 139 Ohio St. 3d 122 (2014). There the Ohio Supreme
Court held that a capital defendant could not withdraw a jury waiver that had been properly
accepted. It is unclear what relevance Gapen believes Davis has to his Hurst claim; the Davis
court did not repeat the “remarkably similar” comparison used by Justice Holmes in Rogers.
Thus, for the cited proposition that Ohio courts have “repeatedly” found Ohio’s system is
like Florida’s “in all critical respects,” Gapen has one citation, Rogers.
Rogers, of course, is not in point because the Ohio Supreme Court was not considering
the question presented here, to wit, whether the fact that Ohio’s statutes require a jury finding
that the aggravated circumstances outweigh the mitigating factors sufficiently distinguishes it
from Florida’s statutes which did not have that requirement when Hurst was decided. In Rogers
the Ohio Supreme Court was deciding whether the Ohio system where only a judge can impose a
capital sentence, was sufficiently different from Mississippi’s where the jury could impose a
death sentence and had been, in Caldwell’s case, misled about its duty by the prosecutor. Indeed,
the “remarkably similar” language from Rogers is dictum and not even dictum on the points at
Counsel’s use of the “remarkably similar” dictum in this and many other capital cases in
this Court in which Hurst claims were proposed in January 2017 is itself a remarkable bit of
“proof texting.” The technique involves ripping language out of context and using it to prove a
proposition not intended by the author. It has, for example, been grossly misused to argue that
capital punishment for murder is divinely commanded by Genesis 9:6.2 Advocates who rely on
proof-texting should recall another biblical admonition: “All who take the sword shall perish by
the sword.” Matthew 26:52 (NRSV translation).
Ohio’s capital sentencing scheme meets the requirements of Apprendi and Ring: before
an Ohio judge can impose a death sentence, the jury must (1) have found in the culpability phase
of the trial the existence of one or more aggravating circumstances beyond a reasonable doubt,
and (2) found in the sentencing phase of the trial that the aggravating circumstances proved to
them outweigh the mitigiating factors beyond a reasonable doubt.
It is certainly true that even after the trial jury makes the required finding, the trial judge
must perform many more steps. He or she must independently decide that the aggravating
circumstances outweigh the mitigating factors. In Ohio that same reweighing must also be done
“Whoever sheds the blood of a human, by a human shall that person’s blood be shed.” (NRSV translation).
by the Ohio Supreme Court.
The logic of Mr. Gapen’s position is that everything necessary for the imposition of a
capital sentence must be done by the jury. But Apprendi and Ring do not go that far. For
example, outside the capital context, a state trial judge may, upon conviction on multiple counts,
impose concurrent or consecutive sentences, but no jury finding is needed. Oregon v. Ice, 555
U.S. 160 (2009). In federal sentencing a District Judge must make findings under the Sentencing
Guidelines before imposing sentence, but the Supreme Court has never held those findings must
be made by a jury instead.
Ohio’s capital sentencing scheme is materially different from Florida’s on precisely the
point on which Hurst was decided. Therefore Gapen’s adding a Hurst claim to his habeas
petition would be futile.
The Decision also held the proposed amendment would be futile because Hurst would
not apply retroactively, i.e., to cases pending on collateral review (ECF No. 218, PageID 1862122, relying principally on Teague v. Lane, 489 U.S. 288 (1989)).
Gapen objects that this conclusion is “overstate[d].” (Objections, ECF No. 221, PageID
18638). He argues that
Multiple state courts have applied the case retroactively to cases on
collateral review, however. See State v. Kirkland, 49 N.E. 3d 318
(Table) (Ohio 2016); see also Mosley v. State, No. SC14-2208,
2016 WL 7406506, at *19 (Fla. Dec. 22, 2016); Powell v. State,
No. 310, 2016, 2016 WL 7243546, at *4 (Del. Dec. 15, 2016) (per
Id. The Florida Supreme Court based its decision in Mosley on Florida retroactivity doctrine; the
same is true of the Delaware Supreme Court’s decision in Powell. Gapen also cites State v.
Kirkland, 145 Ohio St. 3d 1455 (2016), but Kirkland was decided without any opinion.
Gapen argues that even if Hurst is not “fully retroactive under federal court precedent,”
allowing the amendment would allow him to litigate his Hurst claim in the Ohio courts and “the
state courts might reach a different conclusion with respect to retroactivity.” (Objections, ECF
No. 221, PageID 18638). But Gapen cites no Ohio case finding any United States Supreme
Court decision retroactively applicable to a case on collateral review under Ohio law. Thus he
has not offered support for the findings required by Rhines v. Weber, 544 U.S. 269, 277-278
(2005), to expand his stay of these proceedings to include exhaustion of a Hurst claim in the
Having reconsidered the matter in light of the Objections, the Magistrate Judge again
concludes the proposed amendment would be futile and respectfully recommends the District
Court overruled the objections.
April 20, 2017.
s/ Michael R. Merz
United States Magistrate Judge
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