MICHAEL R. MERZ, Magistrate Judge.
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:
(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.
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 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
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:
2017 U.S. App. LEXIS 21094 at *13-15.
If the Campbell panel had recognized Adams III as
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.
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 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. 2:11-cv-1016, the consolidated § 1983 action challenging Ohio's method of execution.
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.
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 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:
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. 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,
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 time
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.
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 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.
As set out at length in the Substituted Report (ECF No. 265, PageID 9010-13), counsel 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.
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 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 explanation is that the Sixth Circuit simply overlooked
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:
Id. at PageID 8961.
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 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.
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:
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.
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.
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.
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).
