In re Campbell, No. 17-3855 (Gibbons, McKeague) (per curiam) (Moore, dissenting).

In re Campbell, No. 17-3855 (Gibbons, McKeague) (per curiam) (Moore, dissenting).

An Ohio prisoner sentenced to death filed a § 2254 habeas petition challenging Ohio’s lethal injection protocol. His petition was sent to the Sixth Circuit for initial review because the district court held that the petition was a successive habeas petition. The prisoner moved the Sixth Circuit to remand his petition to the district court.

After reviewing the law and history relating to method-of-execution habeas challenges to death sentences, the Court held that after the Supreme Court’s opinion in Glossip v. Gross, 135 S. Ct. 2726 (2015), no habeas petition can properly challenge a particular application of a particular execution protocol to a particular person as unconstitutionally painful. Those challenges are properly made by seeking an injunction under § 1983 prohibiting the state from taking certain actions, rather than a writ of habeas corpus that vacates the sentence entirely. The Sixth Circuit held, “[I]f a petitioner’s legal theory would not inherently require the nullification of his death sentence, he has no business proceeding in a habeas court,” reasoning that “[t]he Great Writ is not concerned with the piecemeal reformation of an imperfect criminal justice system.” In so holding, the Court declared as dicta language in a previous case that suggested that habeas claims are permitted even when the claims refuse to concede the possibility of an acceptable means of execution.

The majority therefore found that the habeas petitioner did not raise any proper habeas claims, and dismissed his petition as successive.

Judge Moore dissented, arguing that the petitioner raised sufficient newly present biological facts to render his own death sentence potentially unconstitutional and thus to render his habeas petition not “second or successive.” She disagreed with the majority’s conclusion about Supreme Court and Sixth Circuit precedent in this area. She concluded that it is permissible in habeas to make the argument that, because of newly developed biological facts, the state cannot constitutionally execute the petitioner by lethal injection, and because the state cannot execute him by any means other than lethal injection under Ohio law, his death sentence cannot now be carried out in a way that is consistent with the Eighth Amendment.