Opinion
Case No. 2:10-cv-107
03-25-2016
ROLAND T. DAVIS, Petitioner, v. DAVID BOBBY, Warden, Respondent.
JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action under 28 U.S.C. § 2254. This matter is before the Court on Respondent's Motion to Dismiss the Twenty-Fourth through Thirty-Third Grounds for Relief (ECF No. 88), directed at Petitioner's method-of-execution claims.
The original Petition did not present any free-standing method-of-execution claims, just allegations set forth in support of Petitioner's claim challenging the constitutionality of Ohio's capital punishment scheme. (ECF No. 15, at Page ID # 408-411.) When the Court first allowed Petitioner to amend his Petition to add method-of-execution claims (ECF No. 34), those challenges consisted of one Eighth Amendment claim alleging cruel and unusual punishment and one Fourteenth Amendment claim alleging equal protection violations, spanning a total of six pages (ECF No. 28-1, at Page ID # 494-499). Petitioner's method-of-execution challenges have since metastasized into 10 claims spanning 94 pages. (ECF No. 85, at Page ID # 10200-10293.) Although this Court found that metamorphosis troubling, the United States Supreme Court's June 29, 2015 decision in Glossip v. Gross, 135 S.Ct. 2726, 2738 (2015), appeared to call into question whether any method-of-execution claims remained cognizable in habeas corpus.
Glossip v. Gross involved a § 1983 challenge by Oklahoma death row inmates alleging "that midazolam, the first drug employed in the State's current three-drug protocol, fails to render person insensate to pain." Id. at 2731. In explaining why an announced requirement that movants identify an alternative method of execution did not contravene the Court's decision in Hill v. McDonough, 547 U.S. 573 (2006), the Supreme Court stated as follows:
The portion of the opinion in Hill on which [the petitioners] rely concerned a question of civil procedure, not a substantive Eighth Amendment question. 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 corpus or a civil action under § 1983. Id., at 576, 126 S.Ct. 2096. 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.Glossip, 135 S.Ct. at 2738 (emphasis added).
This statement regarding Hill struck the Court as significant. In Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011), the Sixth Circuit, based on an expansive reading of Hill and Nelson v. Campbell, 541 U.S. 637, 646 (2004), held that method-of-execution challenges are cognizable in habeas corpus. This Court and other courts within this District since relied on Adams in accepting the proposition that method-of-execution claims properly sound in habeas corpus. Glossip appeared to call into question whether Adams v. Bradshaw remained good law.
But on March 15, 2016, the Sixth Circuit issued Adams v. Bradshaw, Case No. 07-3688, 2016 WL 963862 (6th Cir. Mar. 15, 2016) ("Adams II"), affirming the district court's most recent decision denying Adams's petition for habeas corpus relief. As to Adams's contention that lethal injection as a means of execution violates the constitutional prohibition against cruel and unusual punishment, the Sixth Circuit stated as follows:
[N]otwithstanding the warden's assertion that a method-of-execution challenge can only be brought in a § 1983 action under Hill v. McDonough, 547 U.S. 573 (2006), Adams can bring this claim in a § 2254 proceeding. As the warden
submits, Glossip stated that Hill "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." Glossip, 135 S.Ct. at 2738. As we observed in Adams, 644 F.3d at 483, however, Adams's case is distinguishable from that presented in Hill because at least some of Adams's claims, if successful, would bar his execution, and Adams does not concede that lethal injection can be administered in a constitutional manner. Cf. Hill, 547 U.S. at 580.Adams II, 2016 WL 963862, at * 14.
In its September 29, 2015 Opinion and Order addressing procedural default, this Court deferred consideration of Respondent's motion to dismiss Petitioner's method-of-execution claims, noting that those claims had been amended and would be subject to a separate round of procedural-default briefing. (ECF No. 94, at Page ID # 10772.) On June 1, 2015, Respondent filed a motion to dismiss grounds twenty-four through thirty-three as procedurally defaulted. (ECF No. 88.) Following Petitioner's response in opposition (ECF No. 89), Respondent filed a Reply arguing for the first time that those claims should be dismissed on the basis of Glossip v. Gross. (ECF No. 90.) Petitioner filed a sur-reply on August 10, 2015. (ECF No. 93.) The Court is of the view that the parties should be permitted to address the impact of Adams II on the viability of Petitioner's method-of-execution claims before the Court resolves Respondent's motion to dismiss grounds twenty-four through thirty-three.
For the foregoing reasons, Respondent's Motion to Dismiss Grounds Twenty-Four through Thirty-Three (ECF No. 88) is DENIED WITHOUT PREJUDICE, subject to renewal, as appropriate, following briefing on the impact of Adams II. Respondent shall have fourteen (14) days from the date the mandate in Adams II issues to file a supplemental memorandum addressing the impact of Adams II on Respondent's motion to dismiss grounds twenty-four through thirty-three. Petitioner may respond to Respondent's supplemental memorandum not later than fourteen (14) days after it is filed.
IT IS SO ORDERED.
/s/ 3-25-2016
EDMUND A. SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE