MICHAEL R. MERZ, Magistrate Judge.
District Judge Timothy S. Black.
This capital habeas corpus case is before the Court on Petitioner's Motion for Leave to File an Amended Petition to Address Newly Ripe Claims under Hurst v. Florida (ECF No. 82). The Warden opposes the Motion (ECF No. 83) and Petitioner has filed a Reply in Support (ECF No. 84).
The Parties' Positions
Petitioner seeks to add the following two Grounds for Relief to this case:
(ECF No. 82-1, PageID 1279, 1295).
Petitioner asserts Ohio's capital sentencing scheme is unconstitutional under Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016), because
(Motion, ECF No. 82, PageID 1266). Sheppard also insists that Hurst makes unconstitutional the appellate reweighing that the Ohio Supreme Court did in this case to attempt to cure the prosecutorial misconduct it found occurred at Sheppard's trial. Id.
The Warden opposes the amendment on the ground that Ohio's capital sentencing scheme does not violate the Constitution as interpreted in Hurst (Memo in Opp., ECF No. 83). The Warden also asserts that the instant case involves a second-or-successive habeas corpus petition attacking the same judgment as Sheppard's prior case, Case No. 1-00-cv-493, in which this Court's denial of the writ was affirmed on appeal. Sheppard v. Bagley, 657 F.3d 338 (6
Petitioner replies that the amendment would not make this a second-or successive habeas case because he has not committed an abuse of the writ. (Reply, ECF No. 84, PageID 1330-31, citing In re Bowen, 436 F.3d 699 (2006), and In re Jones, 652 F.3d 603 (6
Does Not Invalidate Ohio's Capital Sentencing Scheme
In Hurst, supra, the Supreme Court was called upon to decide whether its prior decisions upholding Florida's capital punishment scheme in Spaziano v. Florida, 468 U.S. 447 (1984) and Hildwin v. Florida, 490 U.S. 638 (1989), survived its holding in Ring v. Arizona, 536 U.S. 584 (2002). The Florida Supreme Court had relied on Spaziano and Hildwin, but the United States Supreme Court expressly overruled those two decisions. 136 S.Ct. at 623. In Ring the Court had applied the Apprendi line of cases to conclude "that Arizona's capital sentencing scheme violated Apprendi's rule because the State allowed a judge to find facts necessary to sentence a defendant to death." Hurst, 136 S. Ct. at 621. In Arizona, "a judge could sentence Ring to death only after independently [of the jury] finding at least one aggravating circumstance." Id., quoting Ring, 536 U.S. at 591. Had Ring's judge not engaged in the independent factfinding of an aggravating circumstance, the maximum sentence Ring could have received would have been a life sentence. Hurst, 136 S.Ct. at 620. Justice Sotomayor continued:
Id. at 621-22.
The Warden reads Hurst narrowly as just overruling Spaziano and Hildwin and allowing a capital sentencing scheme where the jury merely finds the facts necessary to make a defendant death eligible, e.g., the existence of an aggravating circumstance (ECF No. 83, PageID 1323-25 ). In contrast, Petitioner asserts that Hurst requires the trial jury to be "free to fully consider and give effect to all relevant mitigating evidence, and the jury is free to decide whether Sheppard demonstrated the existence of any mitigating factors, the weight to be given to those mitigating factors, and whether the statutory aggravating circumstances outweigh those mitigating factors." (Motion, ECF No. 82, PageID 1272-73.)
This Court believes the correct reading of Hurst is that the relative weight of aggravating circumstances and mitigating factors is a question of fact akin to an element under the Apprendi line of cases, that is, a fact necessary to be found before a particular punishment can be imposed, e.g., a mandatory minimum sentence as in Alleyne v. United States, 570 U.S. ___, 133 S.Ct. 2151, 186 L. Ed. 2d 314 (2013).
Hurst, however, does not invalidate Ohio's capital sentencing scheme because Ohio's scheme is materially different from Florida's. At the time of Sheppard's trial, Ohio law required that, before a sentence of death could be imposed, the jury must find, beyond a reasonable doubt, that the aggravating circumstances outweighed the mitigating factors. That is to say, every fact necessary for imposition of a death sentence, including the fact that the proved aggravating circumstances outweigh the mitigating factors, had to be proved to the jury beyond a reasonable doubt. Ohio Rev. Code § 2929.03(D)(1); State v. Stallings, 89 Ohio St.3d 280, 284, 2000-Ohio-164 (2000); State v. Beuke, 38 Ohio St.3d 29, 32-33 (1988); State v. Jenkins, 15 Ohio St.3d 164, 171-72 (1984). In Ohio, unlike Florida, the trial judge could not find an aggravating circumstance the jury had not already found beyond a reasonable doubt in the culpability phase of the capital trial.
It is true, of course, that the Ohio trial judge has to weigh the aggravating circumstances against the mitigating factors and that weighing is independent of the jury's weighing in the sense that the judge must do it himself or herself. But that weighing is, so to speak, on top of the jury's weighing: if the jury does not find the aggravating circumstances outweigh the mitigating factors, the judge cannot overrule that finding.
Nothing in the United States Constitution forbids a State from giving a defendant the extra protection from a capital sentence that Ohio provides. The protection is parallel to that provided by a motion for judgment of acquittal: a judge can acquit even if a jury has convicted if the judge determines the evidence is insufficient. Likewise, in Ohio's death penalty scheme, a judge may conclude that the aggravating circumstances do not outweigh the mitigating factors in a capital case and may sentence a defendant to a life term despite the jury's finding on relative weight and recommendation of death.
Hurst does not mandate jury sentencing in capital cases, the position Justice Breyer believes the Eighth Amendment requires. Hurst, supra, at 624 (Breyer, J., concurring in the judgment). It requires only that the jury take the penultimate step: make the necessary factual finding that the aggravating circumstances outweigh the mitigating factors.
Petitioner believes Hurst has also effectively overruled Clemons v. Mississippi, 494 U.S. 738 (1990), and its approval of appellate reweighing of aggravating circumstances and mitigating factors. Whatever impact Hurst may have on Clemons is for the Supreme Court itself to say. It may have appeared inevitable to the death penalty bar that the Florida capital sentencing scheme was unconstitutional under Ring, supra. But Spaziano and Hildwin were controlling precedents until Hurst said they weren't.
Because Hurst does not invalidate Ohio's capital sentencing scheme, the proposed amendment would be futile. If this Court had jurisdiction to decide the Motion, it would deny amendment on that basis.
Does Not Apply to Cases on Collateral Review
Subject to two narrow exceptions, a case that is decided after a defendant's conviction and sentence become final may not provide the basis for federal habeas relief if it announces a new rule. Graham v. Collins, 506 U.S. 461 (1993); Stringer v. Black, 503 U.S. 222 (1992); Teague v. Lane, 489 U.S. 288 (1989).
A Supreme Court decision announces a new rule where the issue addressed was susceptible to debate among reasonable minds. Butler v. McKellar, 494 U.S. 407, 412-15 (1990). A new rule is "a rule that . . . was not dictated by precedent existing at the time the defendant's conviction became final." Saffle v. Parks, 494 U.S. 484, 488 (1990), quoting Teague v. Lane, 489 U.S. 288, 301 (1989)(emphasis in original). For instance, the rule in Crawford v. Washington, 541 U.S. 36 (2004), is a new rule, but does not fall within the "watershed" exception to Teague. Whorton v. Bockting, 549 U.S. 406 (2007). As of February 28, 2007, the date Whorton was decided, the only rule the Supreme Court had identified as qualifying under the "watershed" exception is that adopted in Gideon v. Wainwright, 372 U.S. 335 (1963). Furthermore, the Court has not found any new procedural rule to be a "watershed" rule since Whorton.
Whether a Supreme Court decision applies retroactively should be decided by the district court in the first instance. Wiegand v. United States, 380 F.3d 890, 892 (6
The rule announced in Hurst is plainly new within the meaning of Teague. It was not dictated by precedent. Indeed Hildwin and Spaziano, overruled by Hurst, were the relevant precedents. Hurst does not create a new substantive rule. Compare Atkins v. Virginia, 536 U.S. 304 (2002)(the intellectually disabled may not be executed), and Johnson v. United States, 135 S.Ct. 2551 (2015)(declaring unconstitutionally vague the "residual" clause of the Armed Career Criminal Act). Nor is it a watershed new rule of procedure. See Beard v. Banks, 542 U.S. 406, 415-16 (2004)(Gideon v. Wainwright might qualify under Teague's second exception, but Batson v. Kentucky, for example, would not).
Petitioner argues he has good cause to amend in that the Florida and Delaware Supreme Courts have held Hurst to be applicable retroactively (ECF No. 215, PageID 16643). But both of those decisions were based on state law retroactivity doctrine. Nothing in Teague prohibits state courts from giving retroactive effect, as a matter of state law, to new constitutional rules such as Crawford v. Washington, 541 U.S. 36, 53-54 (2004). Danforth v. Minnesota, 552 U.S. 264, 280 (2008).
Because Hurst does not apply to cases in which the conviction became final on direct appeal before January 2016, it has no application here and the requested amendment would therefore be futile. If this Court had jurisdiction to decide the Motion, it would deny amendment on this basis as well.
Second or Successive Petition
The Warden asserts that the Motion to Amend "must be treated as a second petition over which this Court lacks jurisdiction and which should be transferred to the Sixth Circuit." (Memo in Opp. ECF No. 83, PageID 1319-21, relying on Moreland v. Robinson, 813 F.3d 315 (6
813 F.3d at 322-23.
A year ago the Magistrate Judge decided that the original Petition in this case was second-or-successive (ECF No. 75, PageID 1220).
When originally faced with this question, the Magistrate Judge concluded "the habeas claims initially pled in this case were not second-or-successive because Sheppard had newly-arising habeas claims when Ohio adopted a new lethal injection protocol in September 2011." Id. That conclusion was based on Adams v. Bradshaw, 644 F.3d 481 (6
However, in March 2016 the Sixth Circuit held that Adams I remained good law in spite of Glossip. Adams v. Bradshaw, 817 F.3d 284 (6
On its face the original Petition in this case is second-or-successive in that it attacks the same judgment of conviction and sentence to death which were the subject of Sheppard's prior habeas corpus case which is now final on appeal. Sheppard v. Bagley, 657 F.3d 338, 348 (6
The Magistrate Judge had previously ordered this case transferred to the Sixth Circuit but stayed the effective date of the transfer until review of the transfer by Judge Frost (ECF No. 75, PageID 1222). Judge Frost never completed that review before his retirement and stayed the briefing on the question (ECF No. 80). Sheppard's objections were based on the fact that Adams II had issued, making the Magistrate Judge's conclusions based on Glossip contrary to law (ECF No. 79).
Adams III appears to contemplate lethal injection habeas corpus claims substantially narrower than those Sheppard proposed to plead in this case. It also appears that the Magistrate Judge's actually ruling on Sheppard's Renewed Motion to Amend (ECF No. 70) was in error in light of Moreland, supra.
Accordingly, the stay of transfer previously entered in this case (ECF No. 77) is VACATED and the Clerk is ordered to TRANSFER this case to the Sixth Circuit Court of Appeals for a decision from that Court on whether this case may proceed either on the amendments previously proposed by Petitioner or on his claim(s) under Hurst v. Florida, supra.
Petitioner's pending Motion to Amend (ECF No. 82) is TERMINATED for lack of jurisdiction to decide it without circuit court permission.