Franklin v. Warden, Chillicothe Correctional Institution

Filing 19

REPORT AND RECOMMENDATIONS re 2 Petition for Writ of Habeas Corpus filed by Antonio Sanchez Franklin. It is therefore respectfully recommended that the Petition be dismissed without prejudice for failure to plead a claim cognizable in habeas corpus with sufficient clarity to distinguish it from the claims Franklin has made in In re Ohio Lethal Injection Protocol Litig. Objections to R&R due by 9/28/2015. Signed by Magistrate Judge Michael R. Merz on 9/10/15. (pb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
ANTONIO SANCHEZ FRANKLIN,
Petitioner,

:

Case No. 3:12-cv-312

- vs -

District Judge Timothy S. Black
Magistrate Judge Michael R. Merz

NORMAN ROBINSON, Warden,
Respondent.

:

REPORT AND RECOMMENDATIONS

This capital habeas corpus case is before the Court on the Warden’s Motion to Dismiss in
light of Glossip v. Gross (ECF No. 15). Franklin opposes the Motion (ECF No. 17) and the
Warden has filed a Reply in support (ECF No. 18).
Motions to dismiss involuntarily are "dispositive" within the meaning of 28 U.S.C. §
636(b)(1)(A) and Fed. R. Civ. P. 72, requiring a report of proposed findings and
recommendations for decision from an assigned Magistrate Judge.
Franklin pleads the following Grounds for Relief, both of which are directed at lethal
injection:
First Ground for Relief: Franklin’s execution will violate the
Eighth Amendment because Ohio’s lethal injection policy,
protocols and procedures will result in cruel and unusual
punishment.

(Petition, ECF No. 2, PageID 13.)

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Second Ground for Relief: Franklin’s execution will violate the
Fourteenth Amendment because Ohio’s lethal injection policy,
protocols, and procedures will deprive him of equal protection of
the law [sic] and other constitutional rights.

Id. at PageID 16.
In the Return of Writ, the Warden argues these claims were not cognizable in habeas
corpus because they attack Ohio’s then-current execution policy1 (ECF No. 7, PageID 51). The
Warden noted that Franklin had joined other death row inmates in challenging Ohio’s method of
execution under 42 U.S.C. § 1983 in Case No. 2:11-cv-1016. Id. at PageID 50. Relying on Hill
v. McDonough, 547 U.S. 573 (2006), the Warden argued that § 1983 litigation was the only
proper forum for Franklin’s claim. Id. at PageID 51-53.
In his Traverse, Franklin responded by distinguishing his claims made in habeas from his
claims made under § 1983:
Franklin does not challenge in this habeas action "how" his
execution might be conducted, but rather, "whether" the State of
Ohio will ever be able to execute him in a constitutional fashion.
As Franklin's Petition laid out, his claims before this Court are that
his death sentence must be vacated and a life sentence imposed
because (1) the State of Ohio is unable "regardless of the policy,
protocols, and procedures in effect at any given time" to
administer, in any way that meets constitutional standards under
the Eighth Amendment and Fourteenth Amendment, an execution
by lethal injection, (Doc. 2, ¶¶ 42, 45) and (2) that Franklin's
physical, mental and other individual characteristics create a real
and substantial risk that he will experience serious and undue
physical and/or psychological pain and an objectively intolerable
risk of harm that the State of Ohio will unjustifiably ignore. (Doc.
2, ¶ 46). Thus, Franklin's claim is that not only has the State of
Ohio demonstrated a past inability to devise a constitutional lethal
injection plan or to carry out lethal injection executions in
compliance with its own protocols, but also that the State will
never be able to do so. Moreover, because Ohio's unconstitutional
1

Attached to the Petition is the Ohio Department of Rehabilitation and Correction lethal execution protocol issued
September 18, 2011. It has been superseded several times, most recently on June 29, 2015.
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lethal injection process is the sole method of execution in the State
of Ohio, Franklin's death sentence must be vacated. Only through
habeas corpus can Franklin obtain relief from a sentence that
subjects him to an unconstitutional punishment. 28 U.S.C. § 2254.
(Reply, ECF No. 13, PageID 139-40, quoted in part in Response, ECF No. 17, PageID 171.)
The Warden seeks dismissal on the basis of Glossip v. Gross, ___U.S. ___, 135 S. Ct.
2726, 192 L. Ed. 2d 761 (2015). In Glossip Oklahoma death row inmates brought a § 1983
action seeking to enjoin the use of midazolam (specified at 500 mg.) as the first drug to be
administered in a three-drug lethal injection protocol. As the Supreme Court explains, Oklahoma
had previously used the three-drug protocol (sodium thiopental, a paralytic agent, and potassium
chloride) found constitutional by a plurality of the Court in Baze v. Rees, 553 U.S. 35 (2008).
Because sodium thiopental and a substitute, pentobarbital, have become unavailable, Oklahoma
substituted midazolam. Glossip was brought under 42 U.S.C. § 1983 and sought injunctive relief
prohibiting the use of a 500 mg. dose of midazolam in conjunction with the other two drugs. The
Supreme Court affirmed the lower courts' denial of a preliminary injunction on two bases:
For two independent reasons, we also affirm. First, the prisoners
failed to identify a known and available alternative method of
execution that entails a lesser risk of pain, a requirement of all
Eighth Amendment method-of-execution claims. See Baze v. Rees,
553 U. S. 35, 61, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008)
(plurality opinion). Second, the District Court did not commit clear
error when it found that the prisoners failed to establish that
Oklahoma's use of a massive dose of midazolam in its execution
protocol entails a substantial risk of severe pain.

135 S. Ct. at 2731.
In the course of reaching these conclusions, the Court made this interpretation of Hill,
supra:
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
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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.
In Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), the circuit court was faced with
Ohio's claim, relying on Hill, that the district court lacked jurisdiction in habeas corpus over a
lethal injection claim. The court held:
The Warden's contention that Hill "holds that a challenge to the
particular means by which a lethal injection is to be carried out is
non-cognizable in habeas" is too broad. Nowhere in Hill or Nelson
does the Supreme Court state that a method-of-execution challenge
is not cognizable in habeas or that a federal court "lacks
jurisdiction" to adjudicate such a claim in a habeas action. Whereas
it is true that certain claims that can be raised in a federal habeas
petition cannot be raised in a § 1983 action, see Preiser, 411 U.S.
at 500, it does not necessarily follow that any claim that can be
raised in a § 1983 action cannot be raised in a habeas petition, see
Terrell v. United States, 564 F.3d 442, 446 n.8 (6th Cir. 2009).
Moreover, Hill can be distinguished from this case on the basis that
Adams has not conceded the existence of an acceptable alternative
procedure. See 547 U.S. at 580. Thus, Adams's lethal-injection
claim, if successful, could render his death sentence effectively
invalid. Further, Nelson's statement that "method-of-execution
challenges[] fall at the margins of habeas," 541 U.S. at 646,
strongly suggests that claims such as Adams's can be brought in
habeas.

Id. at 483. Relying on that language from Adams, this Court has consistently held it has
jurisdiction in habeas over method-of-execution claims. Gapen v. Bobby, 2012 U.S. Dist. LEXIS
121036, *3-8 (S.D. Ohio 2012); Waddy v. Coyle, 2012 U.S. Dist. LEXIS 94103, *7 (S.D. Ohio
2012); Sheppard v. Robinson, 2012 U.S. Dist. LEXIS 121829, *1 (S.D. Ohio 2012); Bethel v.
Bobby, 2012 U.S. Dist. LEXIS 154041, *1-2 (S.D. Ohio 2012); Sheppard v. Warden, 2013 U.S.
Dist. LEXIS 5560, *21-22 (S.D. Ohio 2013); Turner v. Bobby, 2013 U.S. Dist. LEXIS 39470,
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*3-4 (S.D. Ohio 2013).
The Warden now argues that he won in Glossip what he had lost in Adams, relying on the
language of Glossip interpreting Hill: “However, in light of Glossip, this Court cannot interpret
Adams expansively.” (Motion, ECF No. 15, PageID 155.)
Franklin attempts to avoid this conclusion in a number of ways. He asserts that the
Glossip statements about the meaning of Hill are merely dictum (ECF No. 17, PageID 172).
While that is accurate, this Court has already held that it is obliged to follow the Glossip dictum
even if it conflicts, at least in part, with the holding in Adams. See Landrum v. Robinson, 2015
U.S. Dist. LEXIS 116914 *8, n.2 (S.D. Ohio 2015).
Franklin also asserts Glossip misstates the holding in Hill (Response, ECF No. 17,
PageID 172).

In Hill, Justice Kennedy, who wrote for a unanimous Court, did not explicitly

write what the Court was holding, although the syllabus reasonably reads the holding as being
that Hill might proceed in civil rights and was not obliged to bring his claim in habeas. But what
counts is not how this Court reads the holding, but how the Supreme Court reads its own
precedent.

Nothing prevents the Supreme Court from reinterpreting its prior opinions to

strengthen their force.
At a time when habeas corpus jurisdiction was much more liberal, before enactment of
the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110 Stat.
1214)(the "AEDPA"), the Supreme Court held a district court could not grant release from
confinement in a § 1983 action because to do so would frustrate the habeas exhaustion
requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973). The AEDPA, of course, severely
limited habeas jurisdiction, inter alia, by enacting a statute of limitations and the bar on second or
successive petitions. Nelson and Hill should be read as acknowledging emendations on the

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Preiser rule for conditions of execution claims of death row inmates. Glossip is consistent with
those cases; it does not question the propriety of challenging a particular lethal injection protocol
in a § 1983 action so long as the challenge would not invalidate the death sentence and the
inmate proves an alternative. Insofar as Adams reads Hill as permitting an inmate to bring the
same lethal injection claim in both 1983 and habeas, it cannot survive Glossip.
The Petition here was filed during the time when this Court was following Adams to the
best of its ability and allowing lethal injection claims to be brought in habeas corpus without
examining closely whether the same claims were being brought in the lethal injection protocol
case by the same litigants.

Furthermore, the Petition here references a superseded Ohio

execution protocol and to that extent it is stale.

Second or Successive

The Warden’s Motion raises a question in the Court’s mind which the parties have not
raised. This is Franklin's second-in-time habeas petition attacking the same state court judgment.
This Court's judgment on his first Petition in Case No. 3:04-cv-187 was affirmed on appeal to the
Sixth Circuit, Franklin v. Bradshaw, 695 F.3d 439 (6th Cir. 2012), cert denied 133 S. Ct. 1724
(2013).
The Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110
Stat. 1214)(the "AEDPA") amended 28 U.S.C. § 2244(b) to read in pertinent part as follows:
(b)
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
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application under section 2254 that was not presented in a prior
application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or
(B)
(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

(3)
(A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district
court to consider the application.

Recognizing this difficulty, Franklin argued in his Petition that this case was not second
or successive because it contained a claim Franklin had no opportunity to raise in his first
Petition (ECF No. 2, PageID 6).
The claims he is raising herein did not exist until Ohio's execution
protocol was revamped and revised into its present state, long after
completion of his first-in-time habeas petition. The predicate for
Franklin's claims simply did not exist until the current execution
protocol was in place.
Id. at PageID 8.
The Warden did not contest this assertion by way of a motion to transfer the case to the
Sixth Circuit, but argued in the Return of Writ that this was a second or successive application
(Return, ECF No. 7, PageID 55-59). Franklin responded by admitting that he had not “raise[d]
an execution methodology challenge in his first-in-time habeas petition.” (Reply, ECF No. 13,
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PageID 144.) He noted that the undersigned has allowed second-in-time method of execution
petitions under the same rationale on which he based his position. Id. at PageID 145, citing
Sheppard v. Warden, 2013 U.S. Dist. LEXIS 5560 (S.D. Ohio 2013), and Smith v. Pineda, 2012
U.S. Dist. LEXIS 171759 (S.D. Ohio 2012).
A district court does not have jurisdiction over a second or successive petition without
prior permission from the court of appeals. Burton v. Stewart, 549 U.S. 147 (2007). However,
the district court must itself decide the second or successive question in the first instance. In re:
Sheppard, 2012 U.S. App. LEXIS 13709 (6th Cir. May 25, 2012); In re: Kenneth W. Smith, 690
F.3d 809 (6th Cir. 2012). This Court held in Sheppard that habeas petitions raising method-ofexecution claims directed at Ohio's lethal injection protocol arise when Ohio adopts a new
protocol.
It is doubtful that rationale remains viable in light of Glossip, supra. The case draws a
distinction between constitutional claims which, if successful, will invalidate a state court death
sentence and constitutional claims which attack the method by which the execution will be
carried out. It allows the first class of claims to be brought in habeas, but requires the latter class
to be brought under 42 U.S.C. § 1983. Given that deepening of the distinction between habeas
and 1983, it is difficult to see how a death row petitioner has a newly-arising habeas claim
whenever the lethal injection protocol is amended and therefore not second or successive.
Because this question is jurisdictional under Burton, the Court is obliged to raise it sua
sponte. Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152 (1908); Capron v. Van
Noorden, 6 U.S. 126 (1804); Answers in Genesis of Ky., Inc. v. Creation Ministries Int'l, Ltd.,
556 F.3d 459, 465 (6th Cir. 2009); Clark v. United States, 764 F.3d 653 (6th Cir. 2014).

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Conclusion

It is therefore respectfully recommended that the Petition be dismissed without prejudice
for failure to plead a claim cognizable in habeas corpus with sufficient clarity to distinguish it
from the claims Franklin has made in In re Ohio Lethal Injection Protocol Litig. Franklin is
granted leave to move to file an amended petition not later than September 30, 2015.
Should Franklin move to amend, he must restate his position on why this would not be a
second or successive petition. This Court has previously allowed new lethal injection habeas
petitions to avoid the second or successive bar on the basis that they were raising new claims
which could not previously have been pled, based on the adoption of new lethal injection
protocols by the State. But the Court questions whether that rationale can support a habeas claim
that any lethal injection execution would be unconstitutional since lethal injection has been an
available method of execution in Ohio and indeed the exclusive method since before Franklin
filed his initial Petition.
September 10, 2015.
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. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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
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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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