MICHAEL R. MERZ, Magistrate Judge.
This capital habeas corpus case is before the Court on Petitioner's Renewed Motion for Leave to File an Amended Petition (Renewed Motion, ECF No. 155). The Warden opposes the Motion (Opposition, ECF No. 156) and Chinn has filed a Reply in Support (ECF No. 158).
A motion to amend under Fed. R. Civ. P. 15 is non-dispositive and thus within a Magistrate Judge's decisional authority. Monroe v. Houk, No. 2:07-cv-258, 2016 U.S. Dist. LEXIS 38999 (S.D. Ohio, Mar. 23, 2016)(Sargus, C.J.).
On January 30, 1989, Petitioner Davel Chinn murdered Brian Jones after having kidnapped him outside an "adult" bookstore on South Ludlow Street in Dayton. Chinn was indicted March 3, 1989, and charged, inter alia, with aggravated murder with capital specifications. He was found guilty on all counts by a petit jury and sentenced to be executed. On direct appeal, the Second District affirmed
Chinn filed his original Petition in this Court on November 4, 2002 (ECF No. 3). Among the twenty grounds for relief, there is no claim related to lethal injection. On October 14, 2011, the undersigned recommended the Petition be dismissed with prejudice (ECF No. 60); that Report as supplemented on recommittal (ECF No. 86) remains pending before Chief Judge Sargus.
On April 6, 2012, the Court granted Chinn leave to amend to add the following claims:
(ECF No. 71, PageID 1105.) Amendment was granted over the Warden's statute of limitations objection because the Warden "offers no analysis of why this claim did not arise when Petitioner asserts it did, to wit, when the lethal injection protocol being challenged was adopted by the State on September 18, 2011." Id. at 1106. The claims were found cognizable under Adams v. Bradshaw, 644 F.3d 481, 483 (6
On March 25, 2014, in the wake of the Dennis McGuire execution, the Court agreed to stay consideration of Chinn's lethal injection claims (ECF No. 96). Chinn's time to move to amend was extended to April 13, 2015 (ECF No. 110). After the Court denied an additional one year extension (ECF No. 113), Chinn filed a Second Amended Petition in April 13, 2015 (ECF No. 114) which included the following claims:
Id. at PageID 1658, 1673, 1677, 1679, 1681, 1684, 1685, 1686, 1689, and 1691.
On August 3, 2015, Chinn sought leave to file a Third Amended and Supplemental Petition (ECF No. 120). Another such motion was filed November 9, 2015 (ECF No. 133) and eventually denied without prejudice to renewal within thirty days of the mandate in the Stanley Adams habeas corpus litigation (ECF No. 144). The instant Motion timely followed on March 8, 2017 (ECF No. 155).
Chinn now requests permission to plead the following Grounds for Relief:
(ECF No. 155-1, PageID 9946-47.)
Chinn's Renewed Motion does nothing to relate his proposed new Grounds for Relief to his prior lethal injection claims. Are they intended to replace or supplement claims previously pled? Counsel's choice to repeat numbers used in prior pleadings is confusing to the reader (at least this reader).
Instead Chinn concentrates on showing that his proposed claims are cognizable in habeas under Adams III (Renewed Motion, ECF No. 155, PageID 9936-41). The Renewed Motion also deals with the timeliness question by asserting "[i]t is by now well-established that a change in Ohio's lethal injection protocol gives rise to new claims and thus warrants amendment of a habeas petition." Id. at PageID 9941, quoting this Court's Order at ECF No. 96, PageID 1493.
The Warden opposes the Renewed Motion on the grounds the claims are not cognizable in habeas and are time-barred under the AEDPA statute of limitations, 28 U.S.C. § 2244(d)(Opposition, ECF No. 156, PageID 10059-60).
Chinn replies that the Warden's cited authorities against cognizability are distinguishable (Reply, ECF No. 158, PageID 10068-72). As to timeliness, Chinn claims the Warden has not sufficiently asserted a statute of limitations defense and has therefore forfeited it. Id. at 10072-73. Assuming the defense is sufficiently raised, Chinn asserts that, if he "has shown practices or procedures from the relevant amended protocol—here, the October 7, 2016 execution protocol— that could not have been discovered previously, then claims brought within one year of those factual predicates are not time-barred."
Davel Chinn is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv-1016. That case seeks to permanently enjoin Ohio from executing Chinn and most other Ohio death row inmates under the current lethal injection protocol, which was adopted October 7, 2016. That protocol has already been the subject of extensive litigation, resulting in an order preliminarily enjoining its intended use in the executions of Ronald Phillips, Raymond Tibbetts, and Gary Otte. In re: Ohio Execution Protocol Litig. (Phillips, Tibbetts, & Otte), 2017 U.S. Dist. LEXIS 11019 (S.D. Ohio Jan 26, 2017), aff'd., ___ F.3d ___, 2017 U.S. App. LEXIS 5946 (6
A civil rights action under 28 U.S.C. § 1983 offers the capital litigant many advantages over a habeas corpus action. Among other things, it is not subject to the second-or-successive limitation or the limits on discovery in habeas corpus. Because it is forward looking instead of focused on what happened in the state courts, it is not limited in the introduction of evidence imposed in habeas by § 2254(d) as interpreted in Cullen v. Pinholster, 563 U.S. 170 (2011). On the other hand, introduction of evidence discovered in a § 1983 lethal injection case appears to be admissible in a habeas corpus lethal injection case, per Adams III, where that conclusion is assumed without any discussion of Pinholster.
Even before the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA") vastly increased the procedural restrictions on habeas corpus, the Supreme Court held a district court could not grant release from confinement in a § 1983 action; to do so would frustrate the habeas exhaustion requirements. Preiser v. Rodriguez, 411 U.S. 475 (1973) (Notably, Justice Brennan, the major architect of expansion of habeas in the 1960's, dissented.) It was in Nelson v. Campbell, 541 U.S. 637 (2004), that the Supreme Court first held that a means or method of execution claim could be brought in a § 1983 case, over the objection of state officials who insisted that such a claim had to be brought in habeas corpus and would, in Nelson's case, have been subject to the second-or-successive requirement imposed by the AEDPA. The Court unanimously concluded that, because Nelson's challenge to the method of execution (a vein cutdown procedure) did not challenge his actual death sentence, it could be brought in a § 1983 action.
Cooey v. Taft, Case No. 2:04-cv-1156, a § 1983 action which is the direct predecessor of Case No. 2:11-cv-1016, was filed December 8, 2004, and references an earlier filing in Case No. 2:04-cv-532 on June 10, 2004, less than a month after Nelson was decided. As consolidated in 2:11-cv-1016, Cooey remains pending. The same organizations of attorneys who provide representation to plaintiffs in 2:11-cv-1016 — the Capital Habeas Units of the Offices of the Federal Public Defender for the Southern and Northern Districts of Ohio and the Ohio Public Defender's Office — also represent most of the capital habeas corpus petitioners in this Court. Thus the litigation context provides maximal opportunities for coordination of strategy. To this Court's eye, those opportunities are never missed; if there are internal disagreements among the capital petitioners' bar, they are not apparent to this Court.
Petitioners' bar has had an apparent strategy for some years to have parallel habeas and § 1983 actions pending simultaneously on behalf of the same inmate and raising substantively parallel claims. Implementation of this strategy has been supported by the series of decisions of the Sixth Circuit in Stanley Adams' habeas corpus case from the Northern District of Ohio, Adams v. Bradshaw, 644 F.3d 481, 483 (6
In Adams I the circuit court held, over Ohio's objection, that a challenge to the method of lethal injection could be brought in habeas corpus as well as in a § 1983 action. That is to say, availability of the § 1983 cause of action did not logically imply the absence of a § 2254 cause of action. Attempting to obey Adams I, this Court permitted amendments of habeas petitions to add lethal injection claims and indeed treated those claims as newly arising whenever Ohio's lethal injection protocol was amended. This reading informed the Magistrate Judge's allowance of the Second Amended Petition as upheld by Judge Barrett, supra, at pages 2-3.
Then the Supreme Court appeared to call this Court's practice into question with its decision in Glossip v. Gross, 135 S.Ct. 2726 (2015):
135 S.Ct. at 2738(emphasis added). Changing course, this Court concluded the "must be brought" language precluded what it had been doing under Adams I. Then, in Adams II as clarified by Adams III, the Sixth Circuit decided Glossip did not implicitly overrule Adams I:
Adams v. Bradshaw, 826 F.3d 306, 318-21 (6
As this Magistrate Judge understands it, the current state of the law in the Sixth Circuit after Adams III is that habeas corpus will lie to challenge "the constitutionality of lethal injection in general" to wit, that "lethal injection cannot be administered in a constitutional manner, and [that] claim `could render his death sentence effectively invalid.'" Adams III, quoting Hill v. McDonough, 547 U.S. at 580. Although the Adams court did not say so explicitly, it is obvious the same claim can also be made in a § 1983 action seeking permanent injunctive relief. Indeed Stanley Adams has done so and is a plaintiff in In re: Ohio Execution Protocol Litig., Case No. 2:11-cv-1016. Of course as a § 1983 plaintiff, a death row inmate must plead a constitutional alternative method of execution. Glossip, supra.
The general standard for considering a motion to amend under Fed. R. Civ. P. 15(a) was enunciated by the United States Supreme Court in Foman v. Davis, 371 U.S. 178 (1962):
371 U.S. at 182. See also Fisher v. Roberts, 125 F.3d 974, 977 (6
In considering whether to grant motions to amend under Rule 15, a court should consider whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Rule 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6
Likewise, a motion to amend may be denied if it is brought after undue delay or with dilatory motive. Foman v. Davis, 371 U.S. 178 (1962); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1259 (6
Proposed Grounds Twenty-Four through Twenty-Seven are general lethal injection invalidity claims. Ground Twenty-Four is an Eighth Amendment claim. Ground Twenty-Five is a Due Process and Privileges or Immunities claim. Ground Twenty-Six is an Equal Protection claim and Ground Twenty-Seven is a Supremacy Clause or pre-emption claim.
As proposed to be pleaded, these Grounds for Relief fit within the cognizability-inhabeas window recognized in Adams III. That is to say, they are not claims that lethal injection executions are per se unconstitutional; such a claim would be precluded by precedent. As this Court understands the Sixth Circuit's classification in Adams I, II, and III, a per se claim would read something like "It is unconstitutional for any American State to execute anyone by lethal injection." Instead, these claims are general in the sense that they assert "It is and will always be unconstitutional for the State of Ohio to execute Mr. Chinn by any lethal injection procedure and because Ohio authorizes executions only by lethal injection, his death sentence is invalid."
The Warden's objection that these claims are not cognizable in habeas corpus is not well taken. The Warden's statute of limitations objection is dealt with below.
AEDPA imposed a one-year statute of limitations on habeas corpus claims. 28 U.S.C. § 2244(d). The Warden raises a statute of limitations defense in very brief fashion:
(Opposition, ECF No. 156, PageID 10059.) This one-paragraph defense has elicited an elevenpage reply (Reply, ECF No. 158, PageID 10067-77), the parts of which are considered separately.
Chinn begins by asserting that the limitations defense, being non-jurisdictional, is subject to forfeiture and claims the Warden has not sufficiently asserted such a defense, thereby forfeiting it. Id. at PageID 10072-73. While the limitations defense in habeas can be forfeited, no case authority supports the proposition that failure to raise a limitations defense in objection to a motion to amend constitutes such a forfeiture. To put it another way, just because a defendant can raise any available Fed. R. Civ. P. 12(b) defense in opposing a motion to amend does not logically imply that the defendant has forfeited the defense by failing to raise it at that stage.
The statute of limitations is an affirmative defense which is forfeited if not pleaded as required by Fed. R. Civ. P. 8(c). A district court may dismiss a habeas petition sua sponte on limitations grounds when conducting an initial review under Rule 4 of the Rules Governing § 2254 Cases. Day v. McDonough, 547 U.S. 198 (2006)(upholding sua sponte raising of defense even after an answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6
Petitioner's objection that Respondent has forfeited a limitations defense is OVERRULED.
Next Chinn asserts the authority cited by Respondent is inapposite (Reply, ECF No. 158, PageID 10073).
In In re: Lawrence Landrum, Case No. 16-3151 (6
Chinn asserts this statement implies that if a capital habeas petitioner does show
(Reply, ECF No. 158, PageID 10073-74.) At ¶¶ 63-67 (ECF No. 155-1, PageID 9960-61) of his proposed amended claims, Chinn recites facts related to the October 7, 2016, protocol. At ¶¶ 78-85 (PageID 9963-65) Chinn makes allegations about the use of the drug midazolam as the first drug in the alternative in the current protocol which Ohio intended to use to execute Ronald Phillips, Raymond Tibbetts, and Gary Otte. Among those allegations are asserted problems with the use of midazolam to execute Dennis McGuire. Id. at ¶¶ 86-87; Clayton Lockett,¶¶ 88-89; and Joseph Wood ¶¶ 90-91. Dennis McGuire was executed January 16, 2014; Clayton Lockett was executed April 29, 2014; and Joseph Wood was executed July 23, 2014. None of these dates are mentioned in either the Renewed Motion or the proposed amendments. The relevant facts about use of midazolam in these executions were not newly discovered within one year before March 8, 2017. They have been thoroughly vetted in the § 1983 Protocol Litigation case.
Part of the difficulty with Chinn's position is that it seems to stem from the drive of his counsel to completely conflate habeas corpus and § 1983 procedure. But Adams and Landrum do not do that. While those cases do support counsels' strategy to have substantively parallel habeas and § 1983 claims pending at the same time and to use evidence obtained in the § 1983 case in support of the habeas claims,
If Chinn's cognizable-in-habeas general lethal injection claims did not arise when his attorneys discovered the facts about midazolam sometime between January 2014 and March 8, 2017, when did they arise? Chinn filed his original Petition in this case in 2002 after lethal injection had become an approved method of execution in Ohio. In 2001 it became the exclusive method. It was still the exclusive method in 2004 when the Supreme Court decided in Nelson v. Campbell that method of execution claims could be brought in a § 1983 case. Although Chinn never became a plaintiff in Cooey v. Taft, 2:04-cv-1156, counsel who represent him here were counsel to other death row inmates in that case. He is a plaintiff in In re: Ohio Execution Protocol Litig., and has been since November 14, 2011. The original Complaint in that case included claims of Eighth and Fourteenth Amendment violations (First Claim), due process violations (Second Claim), and equal protection violations (Fourth Claim). If those constitutional violations had arisen for § 1983 purposes by the time that Complaint was filed, why hadn't they also arisen for habeas corpus purposes?
Of course, the Complaint in 2:11-cv-1016 has been amended many times since 2011. It is perfectly appropriate for forward-looking civil rights litigation to be amended as the conduct sought to be enjoined changes.
In light of Adams III, it would apparently be appropriate for Chinn to rely on new evidence gathered in the § 1983 litigation to prove his habeas corpus claim that Ohio can never constitutionally execute him by lethal injection. But gathering new evidence in support of a habeas claim is different from concluding that a new habeas claim "arises" for limitations purposes every time new evidence is discovered, even assuming due diligence in finding the new evidence.
Chinn asserts repeatedly that Ohio's adoption of a new lethal injection protocol starts the statute of limitations running anew (Reply, ECF No. 158). He asserts he "could not have raised these specific lethal-injection invalidity claims" until the new protocol was adopted on October 7, 2016. Id. Yet he never explains how this focus on a newly arising claim related to a specific protocol is somehow consistent with his claims' being general Ohio-can-never-constitutionallyexecute-me-by-lethal-injection claims. The Court has readily accepted the proposition that a new protocol can generate a new § 1983 claim, but such claims are specific to the particular protocol. No matter how many times Chinn's counsel repeat the mantra, new facts are not the same as new habeas claims.
Whether it fits comfortably within the equitable tolling doctrine or not, Chinn presents a strong case that the Court should give some equitable consideration to the confused state of the law during the time he has had cases pending in federal court. Until Adams I in 2011, it was reasonable for counsel to understand that method of execution claims had to be brought in § 1983 proceedings. Following Adams I, this Court accepted the extension of the logic of that case and of Cooey v. Strickland, 479 F.3d 412 (6
To the extent set forth above, Chinn's Renewed Motion is GRANTED. Not later than April 24, 2017, Chinn may file a Supplemental Petition including the four proposed Grounds for Relief at Exhibit 1 to the Renewed Motion (ECF No. 155-1). However, the supplemental Grounds for Relief shall be numbered Thirty-One, Thirty-Two, Thirty-Three, and Thirty-Four. Petitioner shall also state in the Supplemental Petition whether any of his previous lethal injection invalidity Grounds for Relief should now be dismissed as moot.