Rommell Broom v. Tim Shoop, 963 F.3d 500

Sept. 15, 2009: Ohio’s execution team spent ~2 hours attempting IV access on Romell Broom, making numerous punctures (photographs showed ≥18 sites); no execution drugs were ever injected and the attempt was halted.
Broom sued, arguing (1) a second execution would violate the Eighth Amendment as cruel and unusual given the pain he endured, and (2) the Fifth Amendment’s Double Jeopardy Clause barred a second attempt.
State courts denied relief; the Ohio Supreme Court (4–3) held a second attempt was permissible, reasoning the state did not intentionally inflict unnecessary pain and jeopardy had not attached because no lethal injection occurred.
Broom returned to federal court on habeas; the district court denied relief under AEDPA, finding the Ohio Supreme Court’s rulings not objectively unreasonable.
Sixth Circuit affirms: AEDPA deference applies; Resweber is the controlling Supreme Court precedent on second executions and the Ohio court reasonably applied it here.
The court did not resolve future method-of-execution claims and made clear its decision does not foreclose relief if Ohio attempts and fails again.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was the Ohio Supreme Court’s ruling "on the merits" for AEDPA?	Broom: decision relied on extra-record materials and an incomplete record, so not a merits adjudication.	Ohio: the state court evaluated the intrinsic rights and wrongs, so §2254(d) deference applies.	Held: The Ohio Supreme Court adjudicated the claims on the merits; AEDPA deference applies.
Eighth Amendment: Does a failed first attempt bar a second execution?	Broom: the prior two-hour, painful IV attempts amount to torture; a repeat attempt would be cruel and unusual.	Ohio: under Resweber a second attempt is permissible if the first failure was not intentional and the second will not inflict unnecessary pain.	Held: The Ohio Supreme Court reasonably applied Resweber; no Eighth Amendment violation shown here.
Fifth Amendment Double Jeopardy: Does the Clause forbid a second execution attempt?	Broom: literal "twice put in jeopardy of life or limb"—his life was put in jeopardy once, so it cannot be again.	Ohio: jeopardy (in the constitutional sense) did not attach because no lethal injection occurred; allowing completion does not impose a second punishment beyond legislative authorization.	Held: The Ohio Supreme Court did not unreasonably apply Supreme Court precedent; double jeopardy does not bar a second attempt in this circumstance.

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (plurality holding a second execution after a failed attempt does not necessarily violate the Eighth Amendment if the first was not intentionally cruel)
Trop v. Dulles, 356 U.S. 86 (1958) (Eighth Amendment adopts evolving standards of decency—a broad principle but not dispositive here)
Glossip v. Gross, 135 S. Ct. 2726 (2015) (modern standard for Eighth Amendment method-of-execution challenges)
Baze v. Rees, 553 U.S. 35 (2008) (plurality treatment of lethal-injection constitutionality)
Harrington v. Richter, 562 U.S. 86 (2011) (AEDPA imposes highly deferential standard to state-court merits rulings)
Jones v. Thomas, 491 U.S. 376 (1989) (Double Jeopardy prevents multiple punishments beyond legislative authorization)
Ex parte Lange, 85 U.S. 163 (1873) (historical rule against twice punishing the same offense)
Palko v. Connecticut, 302 U.S. 319 (1937) (earlier limiting view on incorporation of Double Jeopardy; later overruled)
Benton v. Maryland, 395 U.S. 784 (1969) (incorporation of Double Jeopardy against the states)