Reply Brief — Alva E. Campbell, Jr., Petitioner v. Charlotte Jenkins, Warden

No. 17-6688 / 17-4505

IN THE SUPREME COURT OF THE UNITED STATES

October Term 20L7

ALVA CAMPBELL,

Petitíoner,

V

CHARLOTTE JENKINS, WARDEN, CHILLICOTHE CORRECTIONAL

INSTITUTION

Respondent.

PETITIONER'S REPLY IN SUPPORT OF PETITION FOR CERTIORARI

AND APPLICATION FOR STAY OF EXECUTION

CAPITAL CASE: EXECUTION DATE NOVEMBER L5,2OL7

DAVID C. STEBBINS (OH 000583e)

Member of the Bar of This Court

Counsel of Record,

Assistant Federal Public Defender

Office of the Federal Public Defender

Southern District of Ohio

L0 West Broad Street, Suite 1020

Columbus, OH 43215-3469

Telephone: (614) 469-2999

Facsimile: (614) 469-5999

david_stebb ins@fd. org

Counsel for Petítioner AIua Campbell

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES

ll

PETITIONER,S REPLY II.{ SUPPORT OF HIS PETITION FOR

CERTIORARI AND APPLICATION FOR STAY OF EXECUTION

1

ARGUMENT...

..J

CONCLUSION

10

I

TABLE OF AUTHORITIES

Cases

Adq,ms u. Bradshaw,644 F.3d 481 (6th Cir. 2011).......

1

Adams u. Bradshaw, 826 F.3d 306 (6th Cir. 2016).......

.......1

Ford u. Wainwright, 477 U.S. 399 (1986)

8

Glossip u. Gross,135 S. Ct.2726 (2015)......

passlm

Hill u. McDonough,547 U.S. 573 (2006)

,.........8

In re Campbell, No. 17-3855,

Oct.2õ,20L7)

-

F.3d

-,

2017 WL 4800122 (6t};' Cir.

2

In, re Campbe\l, No. 17-3855, (6th Cir. Nov. 9,2017)

7, 8

In re Ohio Execution Protocol,860 F.3d 881 (6th Cír.2017) (en banc)

9

Nelson u. Campbell, S4l U.S. 637 (2004)

1

Panetti u. Quartern'Lcr,n, 55 1 U.S. 930 (2007) ................

State u. Broom,51 N.E.3d 620 (Ohio 2016)

4, 8

1

Statutes

28 U.S.C. s 12e2(b)

6

28 U.S.C. s 2244þ)

..........3

28 U.S.C. s 2254

3

42 U.S.C. s 1e83

passlm

Ohio Rev Code S 2949.22

6

ll

PETITIONER'S REPLY IN SUPPORT OF HIS PETITION FOR

CERTIORARI AND APPLICATION FOR STAY OF EXECUTION

The State of Ohio intends to execute AIva Campbell on November 15, 2017,

notwithstanding the medical assessments of its own professionals, which indicate

that Campbell has an allergy to the very drugs Ohio proposes to use, and that

Campbell's veins are unsuitable for IV access. This latter concern is especially

troubling in light of Ohio's "long, problematic history with IV catheters in lethalinjection procedures," State u. Broom,51 N.E.3d 620, 635 (Ohio 2016) (French, J.,

dissenting).

Despite these grave concerns, Campbell has been frustrated in his every

attempt to invoke the protection of the federal courts. First, because these and

other serious medical issues would render his death sentence effectively invalid,

since Ohio authorizes no other means of execution besides lethal injection,

Campbell had sought to raise his claim in habeas corpus. Since 20IL, the Sixth

Circuit had instructed Campbell that he could bring such claims, see Ada,ms u.

Bradshaw, 644 F.3d 481, 483 (6th Cir. 2011), following this Court's invitation in

Nelson u. Cørnpbell, that "method-of-execution challenges [] fall at the margins of

habeas," 541 U.S. 637, 646 (2004). This Sixth Circuit reaffirmed this understanding

as recently as mid-2016. See Adams u. Bradshaw,826 F.3d 306 (6th Cir. 2016). Yet

on October 25,20L7, a panel of the Sixth Circuit, in the per curiam opinion under

review here, gratuitously reexamined this previously settled question and concluded

that Campbell's challenge was not cognizable in habeas, and could properly be

1

raised only in a challenge under 42 U.S.C. S 1983. In re Campbell, No. 17-3855,

-

F.3d

-,2017

WL 4800122, at *4 (6th Cir. Oct. 25,20L7).

The very next day, accordingly, Campbell sought to amend and supplement

his pending complaint under S 1983, to expand upon the allegations he had earlier

made related to issues of vein access, and to the adverse, paradoxical reaction to

Ohio's execution drugs that he is likely to suffer. He sought specifically to

supplement his complaint to include details of the vein-access concerns that had

been disclosed to him by the Department of Rehabilitation and Correction only on

October 24, two days prior.

He was again rebuffed. See Decision & Order, In re Ohio Execution Protocol

Litig., No. 2:11-cv-1016, R. 1356, PageID 50501 (S.D. Ohio Nov. 7, 2017)

(hereinafter "Amend. Denial"). The district court concluded that Campbell was too

late in raising these concerns, despite his earlier pleading of claims embracing

precisely these issues; and that his attempted amendment would be futile, since he

had pleaded an alternative-firing squad-that is not presently permitted under

Ohio law. Amend. Denial at PageID 50499-500.

Campbell has been left without a forum to consider the evidence he has

offered to show that Ohio's implementation of the death penalty is, as to him,

unconstitutional. In light of the signifi.cant constitutional question posed to the

federal courts, and in the interests of justice, certiorari is warranted, and stay of

execution is appropriate.

2

ARGUMENT

Several factors weigh in favor of granting certiorari in this case, and militate

in favor of a stay of execution. Campbell concurs with Respondents that this Court

is presented with a simple question: "May a condemned prisoner challenge his

capital sentence under 28 U.S.C. S 2254 by attacking the method by which it will be

carried out?" Br. in Opp. at i. But Campbell proposes an addition: May a

condemned prisoner mount such a challenge when success would render his own,

individual death sentence invalid? Further, the Court should consider that, absent

relief, no avenues exist for hearing Campbell's challenge to the validity of his death

sentence. This Court should act to forestall Ohio's rush to put to death this ailing

man, the constitutional execution of whom has been called into doubt by only

recently-disclosed evaluations from the State's own medical personnel. Campbell's

ominous yet seemingly ignored medical problems, combined with his substantial

legal challenges presenting serious unresolved constitutional questions, and his

frustrated efforts to obtain relief, should give this Court pause.

As explained in his Petition for certiorari, Campbell's second-in-time habeas

petition, alleging that Ohio is incapable of constitutionally executing Campbell

through the use of lethal injection, was rejected by the Sixth Circuit, on the basis

that Campbell's method-of-execution challenge is not cognizable in habeas. In re

Cørnpbell, No. 17-3855,

2017 WL 4800122 (6t};- Cir. Oct. 25,2017).

F.3d

-

-,

This Court has recognized that a habeas corpus petition is not second or successive

under 28 U.S.C. S 2244þ) if it raises claims that were not ripe when the first

3

petition was being litigated. See Pa,netti u. Quarternxan,551 U.S. 930,944-46

(2007). Indeed, the panel majority in Campbell's case agreed that Campbell's

claims were newly ripe. Campbell,

WL 4800122, at *6-7. The

F.3d

-

-,20L7

court nevertheless dismissed Campbell's case by reaching the unnecessary

conclusion that, under Glossíp u. Gross,135 S. Ct.2726 (2015), his claims simply

are not cognizable in habeas corpus and can instead only be raised in a civil rights

proceeding under 42 U.S.C. S 1983, reversing its long-standing holdings to the

contrary. Campbell,

2017 WL 4800122, at *4-5, 8.

F.3d

-

-,

As Judge Moore described in dissent, however, Campbell has detailed an

"extraordinary list of ailments," id. at *9 (A{oore, J., dissenting), and there is no

dispute that lethal injection is the only method of execution that is prescribed under

Ohio law. Under these circumstances, Campbell has made a prima facie showing

that Ohio simply cannot execute him because the only available method would

violate the Eighth Amendment. As Judge Moore explained

There are situations in which ki[ing a person whose

mental biolog¡r has deteriorated would be an exercise in

mindless vengeance, and there are situations in which

killing a person whose physical biology has deteriorated

would be an exercise in mindless vengeance. Whether the

biological facts asserted here arc ultimately adequate to

justify relief is, of course, for the district court to decide in

the first instance-perhaps they are not. But because

Campbell has directed us to sufficiently specific and recent

biological facts that make his petition newly ripe and that

could potentially make his personal death sentence

unconstitutional, I would remand for further proceedings

to assess whether Campbell's assertions in fact rise to that

level. I therefore respectfully dissent.

Id. at *L0 (Moore, J. dissenting) (emphasis in original)

4

At the same time, Campbell's attempts to have his claim heard by other

means have also been thwarted. As explained above, the day after the Sixth

Circuit's novel conclusion that Campbell cannot bring his claim in habeas, Campbell

sought to amend his complaint in his $ 1983 litigation to present the full extent of

his medical deterioration, to expand upon the pending medical claims that were still

under consideration by the court in that case. He sought leave particularly to

supplement his complaint to present evidence detailing the newly-revealed medical

assessments by medical professionals employed by the Ohio Department of

Rehabilitation and Correction. These assessments expressed solemn concerns over

Campbell's possible allergy to midazolam, the first drug in Ohio's execution

protocol. Furthermore, Campbell's medical records document extreme difficulties in

obtaining vein access. The recent assessments show no suitable IV insertion sites

in either arm or leg, with possible sites located in only one leg after extensive

searching, the aid of ultra-violet light, and the application of tourniquets.

In moving to amend and supplement his $ 1983 complaint, Campbell

specifically sought to take up the Sixth Circuit's directive, where it instructed that

challenges to Ohio's method of execution cannot be brought in habeas, but must

instead proceed under S 1983. The Sixth Circuit worried that even a successful

assault on Ohio's only currently-prescribed method of execution could be vitiated by

a simple amendment to Ohio's statutes: "The fact that Ohio currently permits

execution only by lethal injection does not change that fact. The Ohio legislature

5

could, tomorrow, enact a statute reinstating the firing squad as an alternative

method of executiott." In re Campbell,

-

F.3d

-,

2017 WL 4800122, at *6.

To be sure, in an action under S 1983, Campbell must plead and prove a

reasonably available alternative method of execution. See Glossíp,135 S. Ct. at

2739. Under Ohio's current execution statute, only lethal injection is provided for

as a method of execution. Ohio Rev. Code S 2949.22. Given the unsuitability of any

injection-based method of execution as to Campbell specifically because of his

problems with vein access, Campbell explained to the district court in his S 1983

case that he must necessarily offer a non-IV alternative method of execution. He

did so, alleging firing squad in his proposed amendment and supplement.

The district court rejected as futile Campbell's request to add such an

"unlawful" alternative. Campbell sought leave for interlocutory appeal under 28

U.S.C. S 1292(b), but the court also denied this entreaty. The court announced that,

because of the imminence of Campbell's execution, "[c]ertifiiing an interlocutory

appeal on this question would [ ] commandeer appellate time," and, "[u]nless the

Court of Appeals stayed the execution pendente lite, Mr. Campbell's execution would

render the appeal moot." Decision & Order, In, re Ohio Executíon Protocol Litig., No.

2:1l-cv-1016, R. 1366, PageID 51690-91 (S.D. Ohio Nov. 7, 20L7).

Campbell now asks this Court for the time needed, and for the chance for

some court to address the discord created by the district court's rejection of

Campbell's firing-squad alternative and the Sixth Circuit's holding ín In re

Carnpbell recognizing that any method of execution that the Ohio legislature could

6

enact is effectively "available." Absent resolution of this conflict, owing to his

particular, acute medical issues, Campbell will be denied any forum to litigate his

method-of-execution claim.

Critically, Campbell's claim does not ask this Court to invalidate Ohio's

entire death penalty scheme. Cf. fu. in Opp. at 23-24. Rather, as Judge Moore

noted in her dissent from the Sixth Circuit's denial of Campbell's application for

stay of execution, Campbell, "by contrast, is challenging only the validity of his

death sentence, which would have no effect whatsoever on the overall operation of

the death penalty in Ohio or elsewhere. That individualized challenge to

particulars affecting Campbell's punishment, as I see it, is distinguishable from

Glossip and cannot logically be barred from habeas." In re Campbell, No. 17-3855,

Slip Op. at 9 (6th Cir. Nov. 9,20L7) (Moore, J., dissenting) (internal citations and

quotation marks omitted).

Indeed, this Court's decision in Glosslp did not consider the situation where

the inmate's cause of action alleges that there ís no reasonably available

alternative. See 135 S. Ct. at 2738 (noting that the inmates argued for a singledrug barbiturate execution in their S 1983 complaint); see also íd. øt 2795

(Sotomayor, J., dissenting).1 In such circumstances, habeas proceedings are

1As Justice Sotomayor explained, "[U]nder the Court's new rule, it would not

matter whether the State intended to use midazolam, or instead to have petitioners

drawn and quartered, slowly tortured to death, or actually burned at the stake:

because petitioners failed to prove the availability of sodium thiopental or

pentobarbital, the State could execute them using whatever means it designated . . .

The Eighth Amendment cannot possibly countenance such a result."

7

appropriate, because the inmate is essentially alleging that the impending

execution will be unconstitutional, and that there is no way of providing a remedy

short of vacating his death sentence. Because "a grant of relief to the inmate would

necessarily bar the execution," Hill u. McDonough,547 U.S. 573, 583 (2006), habeas

corpus is the proper forum for litigating the inmate's claims

This result harmonizes with this Court's logic in Pønetti and Ford u.

Wainwright,4TT U.S. 399 (1986). As Judge Moore further explained,

[a]fter all, a Ford-Panetti claim is also a challenge to the

particulars of one's death sentence: it asserts that the

defendant may not constitutionally be executed in any rü¡ay,

requires no theoretical alternative method, is plainly

available in habeas, and in no way undermines the

operation of the death penalty as an institution. Glossip,

meanwhile, did nothing to undermíne Ford. See, e.g., Dunn

u. Madison, No. 17-193, 20L7 WL 5076050, at *1-B (2017)

Qter curiam) (reversing federal court of appeals's grant of

habeas petition on a Ford-Panetti claim but taking as a

given the underlying doctrine). It is thus one thing, as in

Glossip, to challenge the state's entire system of execution

without presenting an alternative, and quite another to

challenge its applicability to you alone. And Campbell's

claim, as discussed in my dissent to this court's October 25

order, is fairly analogized to a Ford-Panetti claim.

In re Campbell, No. 17-3855, Slip Op. at 9-10 (6th Cir. Nov. 9, 2017) (Moore, J.,

dissenting) (some internal citations omitted)

This is precisely the type of situation Justice Sotomayor warned of in her

dissent in Glossip. See 135 S. Ct. at 2795 (Sotomayor, J., dissenting). If Campbell's

claims cannot be raised in habeas corpus proceedings, the State will be free to

execute him irrespective of whether or not the use of lethal injection will cause

8

severe pain in violation of the Constitution. "The Eighth Amendment cannot

possibly countenance such a result." -Id.

The State of Ohio's rush to execute Campbell while these legal challenges

remain pending and unresolved is particularly troubling in light of the multitude of

medical issues from which Campbell suffers. As explained in his Petition, Campbell

suffers from lung cancer, COPD, respiratory failure, prostate cancer, hip

replacement, and severe pneumonia. Campbell must take oxygen treatments four

times a day in order to function, and he relies on a walker for very limited mobility.

These conditions only further heighten, for Campbell specifically, the risk that

Ohio's Execution Protocol "is sure or very likely to cause serious pain and needless

suffering," in comparison with an "available" and "feasible" alternative method of

execution that can be "readily implemented." In re Ohio Execution Protocol,860

F.3d 881, 886, 890 (6th Cir. 2017) (en, banc), cert. denied, sub noftL. Otte u. Morgan,

137 s. Ct.2238

Campbell's attempt to raise his newly revealed medical concerns has been

impeded by every court to which he has applied. The Sixth Circuit ruled he cannot

challenge Ohio's method of execution in habeas. In his S 1983 litigation, he has

been denied leave to amend and supplement his complaint to address these newly

arising concerns, because he is medically unable to offer an alternative method of

execution that is presently prescribed under Ohio law. This Court should enter a

stay to prevent the unconstitutional execution of an inmate who has been unjustly

I

denied the ability to litigate his concerns in any forum. And this Court should

resolve the conflict created by the lower court's incompatible rulings.

I

CONCLUSION

This Court should grant Campbell's Petition for Certiorari, and Application

for stay of execution.

Respectfully submitted,

à1 (Ø.-

DAVrD C. STEBBINS (OH 0005839)

Member of the Bar of This Court

Counsel of Record

Assistant Federal Public Defender

Office of the Federal Public Defender

Southern District of Ohio

10 West Broad Street, Suite 1020

Columbus, OH 43215-3469

Telephone: (614) 469-2999

Facsimile: (6la) 469-5999

david-stebbins@fd. org

Counsel for Petitioner AIua Campbell

November 13,2017

10

No. 17-6688 / 17-4505

IN THE SUPREME COURT OF THE UNITED STATES

October Term 2017

ALVA CAMPBELL,

Petitioner,

V

CHARLOTTE JENKINS, WARDEN, CHILLICOTHE CORRECTIONAL

INSTITUTION

Respondent.

PETITIONER'S REPLY IN SUPPORT OF PETITION FOR CERTIORARI

AND APPLICATION FOR STAY OF EXECUTION

CERTIFICATE OF SERVICE

I certify that on this 13th day of lr{ovember, 201'7 , in accordance with Sup. Ct.

R.29, copies of the Reply in Support of Petition for Certiorari and Application for

Stay of Execution \¡r/ere filed electronically and were served by third party

commercial carrier for delivery within three days upon the following individuals:

Stephen Maher

Criminal Justice Section, Capital Crimes Unit

Office of the Ohio Attorney General

150 East Gay Street, 16th Floor

Columbus, Ohio 43215-3428

Eric Murphy

State Solicitor

Office of the Ohio Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

11

Respectfully submitted,

zlrWL

DAVrD C. STEBBINS (OH ooo5839)

Member of the Bar of This Court

Counsel of Record

Assistant Federal Public Defender

Ofnice of the Federal Public Defender

Southern District of Ohio

10 West Broad Street, Suite 1020

Columbus, OH 432L5-3469

Telephone: (614) 469-2999

Facsimile: (614) 469-5999

david_stebbins@fd. or g

Counsel for Petitioner AIua Campbell

November 13,20L7

t2