Opinion
Case No. 3:02-cv-512
12-13-2017
DAVEL CHINN, Petitioner, v. CHARLOTTE JENKINS, Warden, Chillicothe Correctional Institution, Respondent.
Chief Judge Edmund A. Sargus, Jr.
SUPPLEMENTAL MEMORANDUM
This capital habeas corpus case is before the Court on Petitioner's Appeal (ECF No. 187) of the Magistrate Judge's Decision and Order ("Decision," ECF No. 186) denying Petitioner's Motions to Amend to add lethal injection invalidity claims and claims under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016). The Warden has responded to the Appeal (ECF No. 188) and Chief Judge Sargus has recommitted the matter for a supplemental memorandum analyzing the Appeal (ECF No. 189).
The Magistrate Judge denied amendment to add lethal injection invalidity claims on the basis 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). Adding a claim under Hurst was denied on the basis of In re Coley, 871 F.3d 455 (6th Cir. 2017).
Petitioner first argues that, although a motion to amend is non-dispositive, review of a Magistrate Judge's legal conclusions is de novo (Appeal, ECF No. 187, PageID 10265-66). The Magistrate Judge agrees. Claim under Hurst
Chinn argues the Magistrate Judge's reliance on Coley to deny an amendment to add a claim under Hurst is "misplaced" because the "relevant issue in Coley was whether the petitioner could pursue a second or successive habeas petition under 28 U.S.C. § 2244(b)(2)." (Appeal, ECF No. 187, PageID 10266).
In Coley the Sixth Circuit expressly decided that the District Court correctly found Coley's petition was second-or-successive and thus subject to the § 2244(b)(2) bar. 471 F.2d at 457-58. It found Coley's second-in-time petition did not fit within either of the two exceptions to § 2244(b)(2) recognized in Panetti v. Quarterman, 551 U.S. 930 (1998)(lack of ripeness of claim at the time of the first petition) and Slack v. McDaniel, 529 U.S. 473 (2000)(mixed petition dismissed for lack of exhaustion without merits decision). The Coley court found there was no exception for a claim under a rule adopted after the first petition was adjudicated. It rejected the suggestion made in Judge Merritt's dissent and repeatedly argued by capital habeas petitioners in this Court that a new rule is a newly arising factual predicate, allowing a second petition without satisfying § 2244(b)(2). 471 F.3d at 457, citing In re Tibbetts, 869 F.3d 403 (6th Cir. 2017).
The Coley panel assumed Hurst announced "a new rule of constitutional law," but found the Supreme Court had not made that rule retroactively applicable to cases on collateral review. 471 F.3d at 457. This does not count as a holding that Hurst is not retroactive, Chinn argues, because "[t]he statutory framework [of § 2244(b)(2)] is substantially more restrictive than the general retroactivity framework set out in Teague [v. Lane, 489 U.S. 288 (1989)], which governs Chinn's present proceedings." (Appeal, ECF No. 187, PageID 10266.)
The Magistrate Judge agrees that this case is Chinn's first habeas application related to his death sentence and he therefore does not have to satisfy § 2244(b)(2). The question of whether Hurst applies retroactively is therefore governed by Teague which requires the lower courts to decide retroactivity questions in the first instance rather than requiring, as 2244(b)(2) does, an initial decision on that question by the Supreme Court itself. See Wiegand v. United States, 380 F.3d 890, 892 (6th Cir. 2004).
Although Teague governs the retroactivity question, a number of judges of this Court have already held that Hurst is not to be applied retroactively. In Smith v. Pineda, 2017 WL 631410 (S.D. Ohio Feb. 16, 2017) and McKnight v. Bobby, 2017 U.S. Dist. LEXIS 21946 (S.D. Ohio Feb. 15, 2017), the undersigned held that under Teague, Hurst does not apply retroactively. In Gapen v. Robinson, 2017 U.S. Dist. LEXIS 130755 (S.D. Ohio Aug. 15, 2017), District Judge Rice reached the same conclusion. In Davis v. Bobby, 2017 U.S. Dist. LEXIS 157948 (S.D. Ohio Sep. 25, 2017), Chief Judge Sargus reached the same conclusion, as he did in Lindsey v. Jenkins, Case No. 1:03-cv-702 (S.D. Ohio Sep. 25, 2017) as well. District Judge Marbley reached the same conclusion in Myers v. Bagley, Case No. 3:04-cv-174 (S.D. Ohio Sep. 12, 2017)(unreported; available in that case at ECF No. 126), and Robb v. Ishee, Case No. 2:02-cv-535 (S.D. Ohio Sep. 12, 2017)(unreported; available in that case at ECF No. 213).
Without discussing Teague, the Sixth Circuit applied Hurst retroactively in Hutton v. Mitchell, 839 F.3d 486 (2016), but that decision was summarily reversed by the Supreme Court, Jenkins v. Hutton, 582 U.S. ___, 137 S.Ct. 1769 (2017)(GVR), also without discussing Teague.
In all seven of these cases, the death row inmate is represented by one or more attorneys employed by the Federal Public Defender for the Southern District of Ohio. Therefore, each of those attorneys had notice - without doing any legal research - of these seven in-point precedents that reject the argument made in the Appeal. Moreover, all of those precedents are recent, having been handed down this year. And yet none of these precedents is cited in the Appeal. In any objections to this Supplemental Memorandum, Petitioner's counsel shall explain why failure to cite these cases is not a violation of Rule 3.3 of the Ohio Rules of Professional Conduct.
The Magistrate Judge agrees Coley does not address the question of Teague retroactivity. But under the reasoning of these seven cited decisions, Hurst is not retroactive under Teague. Petitioner has cited no authority to the contrary, i.e., no Ohio case holding Hurst does apply retroactively.
In Gapen, Judge Rice disagreed that Hurst announced a new rule, despite the fact that the Supreme Court had overruled two of its precedents in deciding Hurst. Nonetheless, he agreed the case did not apply retroactively.
Nor does Petitioner offer any argument as to why, apart from precedent, Hurst should apply retroactively under Teague. To summarize the argument made in the cited cases, Hurst is new because it was not dictated by precedent; the Supreme Court overruled two precedents to reach the result in Hurst, Spaziano v. Florida, 468 U.S. 447 (1984 ), and Hildwin v. Florida, 490 U.S. 638 (1989), were expressly overruled. Hurst is not "substantive" in the Teague sense because it does not place certain conduct or a certain class of defendants beyond the power of the State to punish. It is also not a watershed procedural rule, but rather an application of Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000).
Chinn argues that lack of retroactivity under Teague is an affirmative defense "subject to waiver by the Warden." (Appeal, ECF No. 187, PageID 10266, citing Buck v. Davis, 137 S.Ct. 759, 780 (2017).) In Buck, the Court noted language in Danforth v. Minnesota, 552 U.S. 264 (2008), which characterized Teague as providing a defense that could be waived by failure to timely raise it. In Buck, however, the Teague argument had been raised only at the "eleventh hour," i.e., at briefing on the merits in the Supreme Court after certiorari had been granted. Id. The Supreme Court acknowledged it had discretion to reach the Teague issue, but declined to do so because it had granted certiorari to decide other important issues in the case.
In Buck the Court on this point elides a distinction between waiving an issue by affirmatively and voluntarily giving it up, and forfeiting an issue by not timely raising it. Compare Day v. McDonough, 547 U.S. 198, 207-8 (2006),where the Court held 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, 547 U.S. at 207-8 (upholding sua sponte raising of defense even after answer which did not raise it); Scott v. Collins, 286 F.3d 923 (6th Cir. 2002). In Wood v. Milyard, 566 U.S. 463, 473 (2012), the Court held courts of appeals also have authority to consider timeliness defense sua sponte, but only if the defense is forfeited, not if it is waived. The Court further noted that "the distinction between defenses that are 'waived' and those that are 'forfeited.' A waived claim or defense is one that a party has knowingly and intelligently relinquished; a forfeited plea is one that a party has merely failed to preserve." Wood, 566 U.S. at 470 n.4, citing Kontrick v. Ryan, 540 U.S. 443, 458 n.13 (2004); United States v. Olano, 507 U.S. 725, 733 (1993). The Warden insists that she has "never waived any defense under Teague v. Lane." (Response, ECF No. 188, PageID 10273.) Teague is cited in the Return of Writ as barring application of Crawford v. Washington, 541 U.S. 36 (2004) to this case. (Return, ECF No. 24, PageID 200.)
Even if no federal authority holds Hurst to be retroactively applicable to cases on collateral review, Chinn argues the Ohio courts might do so and notes that he is currently litigating a Hurst claim in state court. Chinn correctly notes that state courts are not prevented from finding Supreme Court cases retroactive "as a matter of state law." (Appeal, ECF No. 187, citing Danforth v. Minnesota, 552 U.S. 264, 266 (2008). True enough. If the Ohio courts find Hurst retroactively applicable and thereupon grant Chinn relief from his conviction, this Court will speedily dismiss this case as moot. But in this Court the question of Teague retroactivity is and will remain a question of federal law. Danforth does not suggest that a finding of retroactivity by a state court becomes a federal precedent.
Lethal Injection Invalidity Claims
In the Decision, the Magistrate Judge found that In re Campbell, supra, precludes litigating lethal injection invalidity claims in this habeas corpus case. The reasons why this Court should follow Campbell, despite Petitioner's argument that Adams v. Bradshaw, 826 F.3d 306 (6th Cir. 2016), cert. denied sub. nom. Adams v. Jenkins, 137 S.Ct. 814, 196 L. Ed. 2d 60 (2017), remains binding precedent despite Campbell are discussed at length in the Decision (ECF No. 186, PageID 10256-61) and will not be repeated here. The same analysis was followed in rejecting lethal injection invalidity claims in capital habeas cases in Bays v. Warden, No. 3:08-cv-076, 2017 U.S. Dist. LEXIS 183511 (S.D. Ohio Nov. 6, 2017), and 2017 U.S. Dist. LEXIS 200400 (S.D. Ohio Dec. 6, 2017), and in Turner v. Hudson, 2017 U.S. Dist. LEXIS 202425 (S.D. Ohio Dec. 8, 3017).
Conclusion
Having reconsidered the matter in light of the Appeal, the Magistrate Judge remains convinced that Chinn's lethal injection invalidity and Hurst claims are not cognizable in habeas corpus. It is therefore respectfully recommended that the Chief Judge overruled the Appeal and adopt the original Decision. December 13, 2017.
s/ Michael R. Merz
United States Magistrate Judge