Filed: May 10, 2016
Latest Update: May 10, 2016
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ , Magistrate Judge . This capital habeas corpus case is before the Court on Respondent's Motion to Dismiss this case as presenting a lethal injection protocol claim not cognizable in habeas corpus (ECF No. 27). Since the decision in Glossip v. Gross, 576 U.S. ___, 135 S.Ct. 2726 (2015), this Court has struggled to determine its implications for this type of claim (See ECF No. 30, 35, 38). The implications are still not clear and the Ohio Attor
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ , Magistrate Judge . This capital habeas corpus case is before the Court on Respondent's Motion to Dismiss this case as presenting a lethal injection protocol claim not cognizable in habeas corpus (ECF No. 27). Since the decision in Glossip v. Gross, 576 U.S. ___, 135 S.Ct. 2726 (2015), this Court has struggled to determine its implications for this type of claim (See ECF No. 30, 35, 38). The implications are still not clear and the Ohio Attorn..
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REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This capital habeas corpus case is before the Court on Respondent's Motion to Dismiss this case as presenting a lethal injection protocol claim not cognizable in habeas corpus (ECF No. 27).
Since the decision in Glossip v. Gross, 576 U.S. ___, 135 S.Ct. 2726 (2015), this Court has struggled to determine its implications for this type of claim (See ECF No. 30, 35, 38). The implications are still not clear and the Ohio Attorney General presently has a pending motion before the Sixth Circuit panel that decided Adams v. Bradshaw, ___ F.3d ___, 2016 U.S. App. LEXIS 4678 (6th Cir. Mar. 15, 2016)(Adams II), to clarify those implications. Counsel wrote:
The panel opinion rightly dismissed Adams's petition on the merits. The Warden respectfully asks, in the interest of judicial economy, for clarification of one paragraph of the panel opinion that is causing confusion among the lower courts in a significant number of cases. The panel should clearly state that Adams I only allows a "per se" challenge to lethal injection to be brought under § 2254. Any challenge to "the particular procedure" for lethal injection laid out in Ohio's lethal injection protocol, Panel Op. at 16, must be brought under § 1983.
Adams v. Bradshaw, Case No. 07-3688, ECF No. 176, page 2. The decision reached by the Sixth Circuit panel on that Motion is clearly important to this Court's application of Glossip, but whatever decision the panel reaches, it seems likely that one of the parties will seek rehearing en banc and after that certiorari from the Supreme Court. The interests of judicial economy are not well served by having this Court guess at what the results might be.
Accordingly, it is respectfully recommended that the Motion to Dismiss be DENIED without prejudice to its renewal not later than thirty days after the mandate issues in Adams II.
