Opinion
Cse No. 3:98-cv-084
09-17-2014
WARREN WADDY, Petitioner, v. NORMAN ROBINSON, Warden, Respondent.
District Judge Timothy S. Black
DECISION AND ORDER; REPORT AND RECOMMENDATIONS
This capital habeas corpus case is before the Court on Petitioner Waddy's Motion to Stay Consideration of the Amended Habeas Petition (Doc. No. 250). As the Court reads the Motion, it seeks a stay of all proceedings in this case "until at least sixty days after the next [Ohio] execution, or sixty days after a new [lethal injection] protocol, if any, is announced by which to file any new habeas claims that might arise." Id. at PageID 19423.
The Warden opposes the requested stay on the same grounds on which it opposed prior requests for stay and on the ground that "any changes to the execution protocol could at most impact only two of Waddy's present habeas claims." (Warden's Opposition, Doc. No. 251, PageID 19430.) In the body of his Opposition, Warden Robinson reargues his position that Waddy, along with the many other death row inmates who have filed parallel petitions, should not be permitted to litigate their lethal injection claims in habeas corpus. Id. at PageID 19434-39.
This Court previously rejected Waddy's request to stay these proceedings pending his exhaustion of the state court remedy of a delayed motion for new trial. (Doc. Nos. 219, 234; adopted Doc. No. 244.) The Court has further rejected, in this and other capital cases, the Warden's position that lethal injection claims are not cognizable in habeas corpus (Doc. No. 182, PageID 1599, citing Adams v. Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011); objections overruled at Doc. No. 206). See also Gapen v. Bobby, No. 3:08-cv-280, 2012 U.S. Dist. LEXIS 5619, *9, 12 (S.D. Ohio Jan. 18, 2012).
Waddy gives no reason for a stay except the likelihood that Ohio will again amend its lethal injection protocol. There are twenty-two grounds for relief pled in the [Second] Amended Petition, but only Grounds Seventeen and Eighteen attack the lethal injection protocol. Petitioner relies on the stay granted in Raglin v. Mitchell, Case No. 1-00-cv-767, 2014 U.S. Dist. LEXIS 15605 (S.D. Ohio Feb. 7, 2014), but only consideration of the lethal injection claims was stayed in that case. All other claims in Raglin's case have been litigated. Raglin v. Mitchell, 2013 U.S. Dist. LEXIS 141199 (S.D. Ohio Sept. 29, 2013).
There is no sound reason to delay litigation of Waddy's non-lethal-injection claims pending the ripeness of those claims. The Motion for Stay is therefore DENIED.
In his Reply in support of amendment, Waddy said the lethal injection claims he wished to add were related to the lethal injection protocol adopted by the State of Ohio on September 18, 2011 (Doc. No. 181, PageID 1588). The Court cautioned "[c]are should be taken in specifying the correct protocol in any amended petition since a challenge to an abandoned protocol would plainly be moot." (Decision and Order, Doc. No. 182, PageID 1598, n. 2.) Despite that caution, Waddy pled his lethal injection claims as follows:
SEVENTEENTH GROUND FOR RELIEF:([Second] Amended Petition, Doc. No. 208, PageID 1995, 1997.) The [Second] Amended Petition refers to the "State of Ohio's current lethal injection protocol," but also at various places to "Ohio's lethal injection protocol" or "written execution protocol" without specifying which protocol is being referenced. Id. at ¶ 178, see also, e.g., ¶¶ 188, 189, 191. Because of the limitations in the Reply, however, the Court reads the Seventeenth and Eighteenth Grounds for Relief as referring to the September 18, 2011, lethal injection protocol.
MR. WADDY'S EXECUTION WILL VIOLATE THE EIGHTH AMENDMENT BECAUSE OHIO'S LETHAL INJECTION PROTOCOL WILL RESULT IN CRUEL AND UNUSUAL PUNISHMENT.
EIGHTEENTH GROUND FOR RELIEF:
MR. WADDY'S EXECUTION WILL VIOLATE THE FOURTEENTH AMENDMENT BECAUSE OHIO'S LETHAL INJECTION PROTOCOL WILL DEPRIVE HIM OF EQUAL PROTECTION OF THE LAW.
As Waddy indicates in his Motion, the September 18, 2011, lethal injection protocol has been superseded by a new protocol announced October 13, 2013 (Motion, Doc. No. 250, PageID 19423). The new protocol renders Waddy's Seventeenth and Eighteenth Grounds for Relief moot. Therefore, in keeping with the precedent set in Raglin, supra, the Magistrate Judge sua sponte recommends Grounds Seventeen and Eighteen be dismissed without prejudice as MOOT. September 17, 2014.
/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 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).