NOT RECOMMENDED FOR PUBLICATION File Name: 20a0295n.06
No. 17-4090
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 26, 2020 DEBORAH S. HUNT, Clerk ) In re: KENNETH W. SMITH ) ) ORDER Movant. ) )
Before: MOORE, CLAY, and STRANCH, Circuit Judges.
PER CURIAM. Kenneth Smith, an Ohio death-row inmate represented by counsel, argues
that his Second Amended and Supplemental Petition for Writ of Habeas Corpus (“Second
Amended Petition”) is not second or successive under 28 U.S.C. § 2244(b) and that he does not
need authorization from us to file his Second Amended Petition in the district court.
An Ohio jury convicted Smith of two counts of aggravated felony-murder and two counts
of aggravated robbery and sentenced him to death. Smith appealed his convictions and sentence,
and the Supreme Court of Ohio affirmed. State v. Smith, 684 N.E.2d 668, 678 (Ohio 1997). In
1999, he filed in federal court a petition for a writ of habeas corpus, which the district court denied,
and this court affirmed. Smith v. Mitchell, 567 F.3d 246, 254, 263 (6th Cir. 2009). Smith filed
another habeas petition in 2012, which the district court transferred to this court to determine
whether the petition was second or successive, and we then remanded to the district court to
determine in the first instance whether the petition was second or successive. In re Smith, 690
F.3d 809, 810 (6th Cir. 2012). The district court concluded that Smith’s petition was not barred Case No. 17-4090, In re Smith
as second or successive. Smith v. Pineda, No. 1:12-cv-196, 2012 WL 6021467, at *1 (S.D. Ohio
Dec. 4, 2012).
In March 2017, Smith filed a motion seeking leave to file his Second Amended Petition,
which raises four claims challenging his execution by lethal injection. The district court
determined that the motion was the equivalent of a second or successive petition and transferred it
to this court. See Smith v. Pineda, No. 1:12-cv-196, 2017 WL 2153898, at *5 (S.D. Ohio May 17,
2017); R. 113 (D. Ct. Transfer Order July 17, 2017). Smith moved this court to set a briefing
schedule so that he could explain why his Second Amended Petition was not second or successive.
We denied his request, concluding that In re Campbell, 874 F.3d 454 (6th Cir.), cert. denied, 138
S. Ct. 466 (2017), foreclosed his proposed claims. In re Smith, No. 17-4090 (6th Cir. Mar. 29,
2018) (order). Later, Smith filed a motion to reconsider based on Bucklew v. Precythe, 139 S. Ct.
1112 (2019). After determining that the warden’s opposition to Smith’s motion lacked merit, we
granted Smith’s motion for reconsideration and his motion for a briefing schedule. In re Smith,
No. 17-4090 (6th Cir. July 25, 2019) (order). The issue is now fully briefed.
Smith does not attempt to satisfy § 2244(b)’s requirements, and he does not argue that his
petition is a permissible second-or-successive petition. Instead, he asserts that he is attacking a
new sentencing judgment and that his factual predicates arose after he filed his initial petition, thus
his Second Amended Petition is not second or successive, and he does not need this court’s
authorization to file it in the district court. Smith’s argument is based on his claims that we
previously held were prohibited by Campbell, which held that challenges to a state’s method of
execution must be brought under 42 U.S.C. § 1983. 874 F.3d at 464. Smith argues that Bucklew
abrogated Campbell, and so he is free to bring his as-applied, lethal-injection invalidity claims in
habeas because they attack the validity of his death sentence. Movant Br. at 22–26. Specifically,
-2- Case No. 17-4090, In re Smith
he claims that his unique characteristics are such that he can never be executed in a constitutionally
valid manner in Ohio, which allows executions only by lethal injection. See R. 100 (Mot. for
Leave to File Second Am. Pet. at 11–15) (Page ID #2361–65).
In Bucklew, the question before the Supreme Court was whether a plaintiff bringing an as-
applied, Eighth Amendment method-of-execution challenge in a § 1983 action must satisfy the
test from Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion), and Glossip v. Gross, 135 S. Ct.
2726 (2015), for analogous facial challenges. 139 S. Ct. at 1122–29.1 First, the Court analyzed
“the original and historical understanding of the Eighth Amendment” and its precedent, Baze and
Glossip. Id. at 1122–26. It then considered “whether . . . it would be appropriate to adopt a
different constitutional test for as-applied claims” in light of the Eighth Amendment, Baze, and
Glossip, and concluded that it would not. Id. at 1122, 1126–29.
In reaching this conclusion, the Supreme Court posited that a prisoner’s burden under the
test to identify an alternative method of execution “can be overstated,” in part because a prisoner
could point to another method that the state has already authorized or “a well-established protocol
in another State” to demonstrate that the method is readily available. Id. at 1128. That said, the
Court noted that “the Eighth Amendment is the supreme law of the land, and the comparative
assessment it requires can’t be controlled by the State’s choice of which methods to authorize in
its statutes,” meaning that a prisoner asserting a method-of-execution claim is free to look outside
of already authorized methods as well. Id.2
1 This test requires a prisoner to identify “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” Bucklew, 139 S. Ct. at 1125. 2 As noted in Justice Kavanaugh’s concurrence, Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring), this discussion was intended to abrogate Arthur v. Commissioner, Alabama Department of Corrections, 840 F.3d 1268 (11th Cir. 2016), which erroneously restricted Glossip alternatives to methods currently permitted by state law, id. at 1316–17; see also Arthur v. Dunn, 137 S. Ct. 725, 729 (2017) (Sotomayor, J., dissenting from the denial of certiorari).
-3- Case No. 17-4090, In re Smith
Because of this potential conflict between a state’s current death penalty law and the
Glossip alternative alleged by a prisoner, the Court noted that:
existing state law might be relevant to determining the proper procedural vehicle for the inmate’s claim. See Hill v. McDonough, 547 U.S. 573, 582–83 (2006) (if the relief sought in a 42 U.S.C. § 1983 action would “foreclose the State from implementing the [inmate’s] sentence under present law,” then “recharacterizing a complaint as an action for habeas corpus might be proper”).
Id. (alteration in original). Smith relies entirely on the explanatory parenthetical above in arguing
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0295n.06
No. 17-4090
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 26, 2020 DEBORAH S. HUNT, Clerk ) In re: KENNETH W. SMITH ) ) ORDER Movant. ) )
Before: MOORE, CLAY, and STRANCH, Circuit Judges.
PER CURIAM. Kenneth Smith, an Ohio death-row inmate represented by counsel, argues
that his Second Amended and Supplemental Petition for Writ of Habeas Corpus (“Second
Amended Petition”) is not second or successive under 28 U.S.C. § 2244(b) and that he does not
need authorization from us to file his Second Amended Petition in the district court.
An Ohio jury convicted Smith of two counts of aggravated felony-murder and two counts
of aggravated robbery and sentenced him to death. Smith appealed his convictions and sentence,
and the Supreme Court of Ohio affirmed. State v. Smith, 684 N.E.2d 668, 678 (Ohio 1997). In
1999, he filed in federal court a petition for a writ of habeas corpus, which the district court denied,
and this court affirmed. Smith v. Mitchell, 567 F.3d 246, 254, 263 (6th Cir. 2009). Smith filed
another habeas petition in 2012, which the district court transferred to this court to determine
whether the petition was second or successive, and we then remanded to the district court to
determine in the first instance whether the petition was second or successive. In re Smith, 690
F.3d 809, 810 (6th Cir. 2012). The district court concluded that Smith’s petition was not barred Case No. 17-4090, In re Smith
as second or successive. Smith v. Pineda, No. 1:12-cv-196, 2012 WL 6021467, at *1 (S.D. Ohio
Dec. 4, 2012).
In March 2017, Smith filed a motion seeking leave to file his Second Amended Petition,
which raises four claims challenging his execution by lethal injection. The district court
determined that the motion was the equivalent of a second or successive petition and transferred it
to this court. See Smith v. Pineda, No. 1:12-cv-196, 2017 WL 2153898, at *5 (S.D. Ohio May 17,
2017); R. 113 (D. Ct. Transfer Order July 17, 2017). Smith moved this court to set a briefing
schedule so that he could explain why his Second Amended Petition was not second or successive.
We denied his request, concluding that In re Campbell, 874 F.3d 454 (6th Cir.), cert. denied, 138
S. Ct. 466 (2017), foreclosed his proposed claims. In re Smith, No. 17-4090 (6th Cir. Mar. 29,
2018) (order). Later, Smith filed a motion to reconsider based on Bucklew v. Precythe, 139 S. Ct.
1112 (2019). After determining that the warden’s opposition to Smith’s motion lacked merit, we
granted Smith’s motion for reconsideration and his motion for a briefing schedule. In re Smith,
No. 17-4090 (6th Cir. July 25, 2019) (order). The issue is now fully briefed.
Smith does not attempt to satisfy § 2244(b)’s requirements, and he does not argue that his
petition is a permissible second-or-successive petition. Instead, he asserts that he is attacking a
new sentencing judgment and that his factual predicates arose after he filed his initial petition, thus
his Second Amended Petition is not second or successive, and he does not need this court’s
authorization to file it in the district court. Smith’s argument is based on his claims that we
previously held were prohibited by Campbell, which held that challenges to a state’s method of
execution must be brought under 42 U.S.C. § 1983. 874 F.3d at 464. Smith argues that Bucklew
abrogated Campbell, and so he is free to bring his as-applied, lethal-injection invalidity claims in
habeas because they attack the validity of his death sentence. Movant Br. at 22–26. Specifically,
-2- Case No. 17-4090, In re Smith
he claims that his unique characteristics are such that he can never be executed in a constitutionally
valid manner in Ohio, which allows executions only by lethal injection. See R. 100 (Mot. for
Leave to File Second Am. Pet. at 11–15) (Page ID #2361–65).
In Bucklew, the question before the Supreme Court was whether a plaintiff bringing an as-
applied, Eighth Amendment method-of-execution challenge in a § 1983 action must satisfy the
test from Baze v. Rees, 553 U.S. 35 (2008) (plurality opinion), and Glossip v. Gross, 135 S. Ct.
2726 (2015), for analogous facial challenges. 139 S. Ct. at 1122–29.1 First, the Court analyzed
“the original and historical understanding of the Eighth Amendment” and its precedent, Baze and
Glossip. Id. at 1122–26. It then considered “whether . . . it would be appropriate to adopt a
different constitutional test for as-applied claims” in light of the Eighth Amendment, Baze, and
Glossip, and concluded that it would not. Id. at 1122, 1126–29.
In reaching this conclusion, the Supreme Court posited that a prisoner’s burden under the
test to identify an alternative method of execution “can be overstated,” in part because a prisoner
could point to another method that the state has already authorized or “a well-established protocol
in another State” to demonstrate that the method is readily available. Id. at 1128. That said, the
Court noted that “the Eighth Amendment is the supreme law of the land, and the comparative
assessment it requires can’t be controlled by the State’s choice of which methods to authorize in
its statutes,” meaning that a prisoner asserting a method-of-execution claim is free to look outside
of already authorized methods as well. Id.2
1 This test requires a prisoner to identify “a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” Bucklew, 139 S. Ct. at 1125. 2 As noted in Justice Kavanaugh’s concurrence, Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring), this discussion was intended to abrogate Arthur v. Commissioner, Alabama Department of Corrections, 840 F.3d 1268 (11th Cir. 2016), which erroneously restricted Glossip alternatives to methods currently permitted by state law, id. at 1316–17; see also Arthur v. Dunn, 137 S. Ct. 725, 729 (2017) (Sotomayor, J., dissenting from the denial of certiorari).
-3- Case No. 17-4090, In re Smith
Because of this potential conflict between a state’s current death penalty law and the
Glossip alternative alleged by a prisoner, the Court noted that:
existing state law might be relevant to determining the proper procedural vehicle for the inmate’s claim. See Hill v. McDonough, 547 U.S. 573, 582–83 (2006) (if the relief sought in a 42 U.S.C. § 1983 action would “foreclose the State from implementing the [inmate’s] sentence under present law,” then “recharacterizing a complaint as an action for habeas corpus might be proper”).
Id. (alteration in original). Smith relies entirely on the explanatory parenthetical above in arguing
that Bucklew abrogated Campbell and permits his challenges to the lethal-injection method to be
raised in habeas petitions. See Movant Br. at 22–26.
Campbell is the law of this circuit and remains binding law “unless an inconsistent decision
of the United States Supreme Court requires modification of the [circuit] decision or this Court
sitting en banc overrules the prior decision.” Gor v. Holder, 607 F.3d 180, 188 (6th Cir. 2010)
(quoting Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009)). A Supreme Court
decision “need not be precisely on point, if the legal reasoning is directly applicable,” Ne. Ohio
Coal. for the Homeless v. Husted, 831 F.3d 686, 720–21 (6th Cir. 2016) (collecting cases), but
Smith stretches Bucklew too far. Whether an as-applied method-of-execution claim may be
brought in habeas is not implicated by the question presented in Bucklew, its holding, or its primary
legal reasoning. The Court in Bucklew held that prisoners bringing as-applied method-of-
execution challenges under § 1983 must satisfy the Baze-Glossip test, and the Court’s analysis of
the Eighth Amendment, Baze, and Glossip reflects this focus. Furthermore, Hill v. McDonough
was decided before and extensively discussed in Campbell, 874 F.3d at 460–63, meaning that the
new law to implicitly overrule Campbell would have to come from Bucklew itself. And we cannot
say that the parenthetical, combined with the Court’s statement that the question of state law “might
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be relevant to determining the proper procedural vehicle for the inmate’s claim,” Bucklew, 139 S.
Ct. at 1128 (emphasis added), meaningfully alters the analysis in Campbell.
Given this context, Smith places too much weight upon the explanatory parenthetical in
Bucklew, and we cannot say that Campbell was abrogated by that case. For this reason, we must
once again conclude that Smith’s proposed amendment presents claims that are not cognizable in
habeas in light of Campbell.3
Accordingly, for the reasons explained above, we hold that Campbell controls, even after
Bucklew, and Campbell does not permit Smith to file his proposed Second Amended Petition in
the district court. We note that this Order has no effect on Smith’s challenge to Ohio’s execution
protocol brought pursuant to 42 U.S.C. § 1983.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
3 Bailey v. Wainwright, 951 F.3d 343 (6th Cir. 2020), which Smith points to in his recent Rule 28(j) letter, does not alter this conclusion. No. 17-4090, Rule 28(j) Letter (Feb. 26, 2020). In Bailey, the majority and dissenting opinions cited Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011) (per curiam) (Adams II), while considering whether the petitioner had sufficiently demonstrated that his due-process claim regarding his parole sheets challenged the fact of his custody, either his life sentence or his chance of obtaining parole, pursuant to 28 U.S.C. § 2254(a). Bailey, 951 F.3d at 346–47 (noting that the Adams II court “treated a state prisoner’s” claim as one that “if successful, could render his death sentence effectively invalid” (quoting Adams II, 644 F.3d at 483)); id. at 347–48 (Stranch, J., dissenting) (quoting Adams II, 644 F.3d at 483) (relying on Adams II to conclude that the petitioner had demonstrated the requisite degree of “probabilistic change to custody” to satisfy the “in custody” requirement of § 2254(a)). Bailey, however, was not a method-of-execution case. There both the majority and dissent employed Adams II to discuss the broader proposition that Sixth Circuit precedent permits some claims to be brought under habeas and under § 1983. While Campbell “close[d] the final path into habeas court left open by Hill and Adams II” for method-of-execution claims, it did “not intend to diminish the importance or correctness of the holding in Adams II that § 1983 and habeas are not mutually exclusive as a per se rule.” Campbell, 874 F.3d at 462–64.
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