ROMELL BROOM, Petitioner-Appellant, v. TIM SHOOP, Warden, Respondent-Appellee.
No. 19-3356
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Argued: April 7, 2020
Decided and Filed: June 23, 2020
File Name: 20a0188p.06
Before: BATCHELDER, MOORE, and GIBBONS, Circuit Judges.
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)
Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 1:10-cv-02058—Christopher A. Boyko, District Judge.
COUNSEL
ARGUED: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Timothy F. Sweeney, LAW OFFICE OF TIMOTHY FARRELL SWEENEY, Cleveland, Ohio, S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant. Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
KAREN NELSON MOORE, Circuit Judge. In an infamous September 2009 incident, the state of Ohio tried to execute death-row inmate Rommel Broom, and failed. More specifically, the state tried to execute Broom by way of lethal injection, but was forced to abandon the effort when the execution team concluded—two hours into the process—that it could not maintain a viable IV connection to Broom‘s veins. The state then returned Broom to his cell, to await a second execution attempt on another day. That second execution attempt has not yet happened, however, because the parties have spent the last eleven years litigating whether the U.S. Constitution bars Ohio from ever trying to execute Broom again—Broom relies on both the
We in no way condone Ohio‘s treatment of Broom; that it took two hours of stabbing and prodding for the state to realize that it could not maintain a viable IV connection to Broom‘s veins is disturbing, to say the least. But because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“) permits us to reverse state court merits decisions in only a narrow set of circumstances, and because the Ohio Supreme Court‘s decision rejecting Broom‘s constitutional claims on the merits does not fall within that set of circumstances here, we AFFIRM the district court‘s judgment denying Broom habeas relief.
I. BACKGROUND
Ohio‘s lethal injection protocol has been the subject of federal litigation for over a decade. See generally In re Ohio Execution Protocol (Fears), 860 F.3d 881 (6th Cir. 2017) (en banc); Cooey v. Strickland (Biros), 589 F.3d 210 (6th Cir. 2009); In re Ohio Execution Protocol Litig. (Hartman), 906 F. Supp. 2d 759 (S.D. Ohio 2012). Most of this litigation has consisted of death-row inmates bringing lawsuits pursuant to
Romell Broom‘s case is different. Unlike the typical death-row inmate, Broom is not challenging the state‘s lethal injection protocol writ large (at least in this proceeding). Rather, Broom makes the novel argument that his forthcoming execution is unconstitutional because Ohio has already tried—and failed—to execute him once before. The facts of that failed execution are described by the Ohio Supreme Court as follows:
Broom was transported to the Southern Ohio Correctional Facility (“Lucasville“) on September 14, 2009, in anticipation of his execution scheduled for the next day. Upon his arrival at Lucasville, a nurse and a phlebotomist conducted a vein assessment and found that Broom‘s right-arm vein appeared accessible, but his left-arm vein seemed less so. Prison officials communicated this information to Edwin C. Voorhies Jr., the regional director for the Office of Prisons of the Ohio Department of Rehabilitation and Correction (“ODRC“), and the medical team assured him that this would not present a problem.
At 1:59 p.m. on September 15, the warden finished reading the death warrant to Broom. One minute later, Team Members 9 (a female) and 21 (a male) entered the holding cell to prepare the catheter sites.
Team Member 9 made three attempts to insert a catheter into Broom‘s left arm but was unable to access a vein. At the same time, Team Member 21 made three unsuccessful stabs into Broom‘s right arm. After a short break, Member 9 made two more insertions, the second of which caused Broom to scream aloud from the pain.
Member 21 managed to insert the IV catheter into a vein, but then he lost the vein and blood began running down Broom‘s arm. When that occurred, Member 9 rushed out of the room, saying “no” when a security officer asked if she was okay.
Director Voorhies testified that he could tell there was a problem in the first 10 to 15 minutes. Warden Phillip Kerns saw the team make six or seven attempts on Broom‘s veins during the same 10-to-15-minute period. According to Kerns, the team members did hit veins, but as soon as they started the saline drip, the vein would bulge, making it unusable.
About 15 minutes into the process, Kerns and Voorhies saw Member 9 leave the holding cell. Voorhies described
her as sweating “profusely” and heard her say that she and Member 21 had both accessed veins, but the veins “blew.” Member 17 then entered the holding cell and made “several attempts” to access a vein in Broom‘s left arm. Simultaneously, Member 21 continued his attempts on Broom‘s right arm. Terry Collins, who was then the director of the ODRC, called a break about 45 minutes into the process to consult with the medical team. The break lasted 20 to 25 minutes. The medical team reported that they were gaining IV access but could not sustain it when they tried to run saline through the line. They expressed “clear concern” about whether they would get usable veins. But because they said that there was a reasonable chance of establishing venous access, the decision was made to continue.
By this time, Broom was in a great deal of pain from the puncture wounds, which made it difficult for him to move or stretch his arms. The second session commenced with three medical team members—9, 17, and 21—examining Broom‘s arms and hands for possible injection sites. For the first time, they also began examining areas around and above his elbow as well as his legs. They also reused previous insertion sites, and as they continued inserting catheter needles into already swollen and bruised sites, Broom covered his eyes and began to cry from the pain. Director Voorhies remarked that he had never before seen an inmate cry during the process of venous access.
After another ten minutes or so, Warden Kerns asked a nurse to contact the Lucasville physician to see if she would assess Broom‘s veins and offer advice about finding a suitable vein. Broom later stated that he saw “an Asian woman,” whom he erroneously identified as “the head nurse,” enter the chamber. Someone handed her a needle, and when she inserted it, she struck bone, and Broom screamed from the pain. At the same time, another team member was attempting to access a vein in Broom‘s right ankle.
The Lucasville physician confirmed that she came to Broom‘s cell, examined his foot, and made one unsuccessful attempt to insert a needle but quickly concluded that the effort would not work. By doing so, she disobeyed the warden‘s express instructions to observe only and not get involved. The physician examined Broom‘s foot but could see no other vein.
After the physician departed, the medical team continued trying to establish an IV line for another five to ten minutes. In all, the second session lasted approximately 35 to 40 minutes.
During the second break, the medical team advised that even if they successfully accessed a vein, they were not confident that the site would remain viable throughout the execution process. The governor‘s office had signaled its willingness to grant a reprieve, and so the decision was made to halt the execution for the day.
State v. Broom, 51 N.E.3d 620, 623-25 (Ohio 2016).
Shortly after this failed execution attempt Broom filed a Section 1983 lawsuit in federal court, claiming that any attempt to execute him again would violate
In the state trial court, Broom argued that Ohio‘s conduct during the failed execution attempt was reckless at best, malicious at worst. And as evidence of this contention, Broom pointed both to eyewitness testimony recounting the state‘s prolonged and painful effort to execute him (which we set forth above), and to expert testimony stating, among other things, that the execution team failed to abide by its own protocols and that Broom‘s veins “should have been easily accessed.” Cooey v. Strickland (Biros), 2009 WL 4842393, at *70 (S.D. Ohio Dec. 7, 2009), aff‘d, 589 F.3d 210 (6th Cir. 2009).1 Therefore, Broom reasoned, his first execution attempt was analogous to purposeful torture, and it would be cruel and unusual to allow the state to subject him to its lethal injection protocol again. The state trial court, however, rejected Broom‘s arguments, and denied Broom‘s request for an additional evidentiary hearing. Although the trial court acknowledged “that repeated needle
Broom‘s case then went to the Ohio Supreme Court. In a 4–3 decision, the court held that neither the
Three justices dissented. In the principal dissent, Justices French and Pfeifer argued that, because there was “an unresolved dispute of fact at the heart of the case, namely, the reason for the state‘s inability to establish IV access at the start of Broom‘s attempted execution,” Ohio law entitled Broom to at least an evidentiary hearing. Id. at 634 (French, J., dissenting). “If the state cannot explain why the Broom execution went wrong,” the dissent reasoned, “then the state cannot guarantee that the outcome will be different next time.” Id. at 637. The justices did not, however, take a position on the merits of either of Broom‘s constitutional claims.
Justice O‘Neill also dissented. And, in his dissent, he contended that a second execution attempt would violate the
His state remedies exhausted, Broom resumed litigating his (still-pending) habeas petition in federal court. After first rejecting Broom‘s request for permission to conduct additional discovery—a decision that is not on appeal here—the district court determined, in a thoughtful and thorough 71-page order, that Broom‘s
This appeal followed.
II. DISCUSSION
When a habeas petitioner raises a claim that has already been adjudicated on the merits by a state court, AEDPA requires federal courts to defer to the state court‘s decision unless the court‘s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”
A.
At the outset, the parties dispute a threshold matter. Was the Ohio Supreme Court‘s ruling “on the merits,” such that it is entitled to deference under
Regardless of what one thinks of the Ohio Supreme Court‘s decision, there is no doubt that the court in fact adjudicated Broom‘s
B.
With this threshold question resolved, we now turn to the parties’ chief dispute: whether the Ohio Supreme Court unreasonably applied “clearly established” Supreme Court precedent when it ruled that Ohio could attempt to execute Broom a second time without running afoul of the
For starters, we first clarify what the clearly established Supreme Court precedent governing Broom‘s claim is, exactly. Ohio argues that Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), is the only such precedent, because it is the only Supreme Court precedent dealing with a factual scenario even remotely analogous to the one presented here, i.e., the constitutionality of a second execution attempt. Broom, by contrast, argues that a later Supreme Court decision, Trop v. Dulles, 356 U.S. 86 (1958), is the most on-point precedent because, although Trop‘s facts are nothing like the facts here—Trop concerned the constitutionality of using denationalization as a punishment—that decision established the important principle that the
Ohio is right. For a Supreme Court precedent to be “clearly established” the decision‘s holdings must “squarely address[] the issue in [the] case,” Wright, 552 U.S. at 125; “abstract” constitutional principles, or dicta more broadly, do not suffice, see Lopez v. Smith, 574 U.S. 1, 6 (2014) (per curiam) (reversing circuit court for holding that certain Supreme Court decisions provided “clearly established” law when the cited decisions did not “address[], even remotely, the specific question presented by [the] case” (emphasis added)); White v. Woodall, 572 U.S. 415, 419 (2014)
With this issue clarified, our inquiry becomes twofold: First, what did Resweber hold, as a matter of
1.
Resweber‘s facts are straightforward. In 1945, a Louisiana jury convicted a young African-American man named Willie Francis of murder and sentenced him to death.2 Consequently, on May 3, 1946, the state‘s execution team read Francis his last rites and strapped him into the electric chair. Similar to the case at hand, however, when “[t]he executioner threw the switch... death did not result“; this was “presumably because of some mechanical difficulty.” Resweber, 329 U.S. at 460. Francis was then “removed from the chair and returned to prison.” Id. The question thus became whether the Constitution permitted Louisiana to attempt to execute Francis by electric chair again, despite the fact that the state had not only put Francis “through the difficult preparation for execution,” to no avail, but had also sent “through [Francis‘s] body a current of electricity intended to cause death,” also to no avail. Id. at 461.
The Court said yes, the Constitution did not prohibit Louisiana from attempting to execute Francis a second time. Its opinion, however, was a fractured one.
The plurality opinion. Justice Reed—writing for himself, Chief Justice Vinson, Justice Black, and Justice Jackson—ruled that a second execution attempt would not violate the
of electricity” rendered “his subsequent execution any more cruel in the constitutional sense than any other execution.” Id. at 464. “The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely,” the Court added. Id. The Court then emphasized that this conclusion
The Frankfurter opinion. Justice Frankfurter took a different approach. In his view, the
The dissent. Justice Burton—writing for himself, Justice Douglas, Justice Murphy, and Justice Rutledge—dissented. Like Justice French‘s principal dissent here, see supra at 7, the Resweber dissenters did not argue that a second execution attempt would necessarily violate the
current of electricity was caused to pass through [Francis‘s] body,” intentionally subjecting Francis to that pain again would be cruel and unusual, if not “torture,” and would “present[] more tha[n] a case of mental anguish.” Id. at 476-77 (emphasis added). “The contrast,” the dissenters observed, “is that between instantaneous death and death by installments—caused by electric shocks administered after one or more intervening periods of complete consciousness of the victim.” Id. at 474.
2.
With this context, and AEDPA‘s demanding standard of review, in mind, we now ask whether the Ohio Supreme Court reasonably applied Resweber when it rejected Broom‘s
Whatever one may think of that conclusion, it was not an “unreasonable” application of Supreme Court precedent. If anything, it was a direct application of Supreme Court precedent (albeit of a precedent that may have since outlived its usefulness).
Broom‘s two principal counterarguments do not persuade us otherwise.
First, Broom at times emphasizes the views of the Resweber dissent, as if to argue that that opinion, not the plurality, would constitute the “clearly established” law today, were the Supreme Court to review the issue afresh. See, e.g., Appellant Br. at 57. On one level this argument makes sense. Justice Frankfurter‘s fifth vote hinged on an outdated understanding of constitutional procedure, see supra at n.3, and Justice Frankfurter himself suggested that, but-for that understanding, he might have voted with the dissenters, see, e.g., Resweber, 329 U.S. at 471 (Frankfurter, J., concurring) (“Strongly drawn as I am to some of the sentiments expressed by my brother Burton... .“). But not only does this argument make Resweber even more ambiguous than it already is, which does not help Broom‘s case on AEDPA review, see Mitchell, 540 U.S. at 17, but also it is far from clear that Broom would prevail even under the Resweber dissenters’ understanding of the
Recall the key fact emphasized by the Resweber dissenters: Louisiana had (allegedly, at least) caused a “current of electricity... to pass through the body of [Francis]” during its first attempt at electrocution. Resweber, 329 U.S. at 477 (Burton, J., dissenting). Consequently, the dissenters reasoned, a second execution attempt would not only cause Francis needless “mental anguish,” but it would physically be akin to “death by installments [of electricity],” or, more bluntly, “torture.” Id. at 474, 476-77. Here, by contrast, however inept Ohio‘s treatment of Broom was during the first execution attempt, at no point during the two-hour ordeal did the state actually inject Broom with any part of its three-drug cocktail. As a result, Ohio is not requesting that it be allowed “two injections per prisoner,” the way Louisiana was requesting “two electrocutions per prisoner” with Francis. This distinction may seem trite, but it is the distinction that the Resweber dissenters found dispositive, and it would not help Broom here.
That the Ohio Supreme Court did not have the opportunity to consider these new developments is notable, to be sure. But that fact alone cannot justify habeas relief. For one, this kind of “challenge to the protocol” argument is indistinguishable from the “method of execution” arguments this court reserves for section 1983 suits, see supra at 5, and so it is unclear the extent to which this argument is even cognizable on habeas review. After all, the question Broom asked us to answer is whether the
All of that said, we emphasize that we do not address the merits of any future “method of execution” challenge Broom may bring. See supra n.5. Nor do we suggest that we would reach this same conclusion were Ohio to try and fail to execute Broom again. Rather, we hold simply that the Ohio Supreme Court did not unreasonably apply clearly established Supreme Court precedent when it rejected Broom‘s “no second execution” Eighth Amendment claim in this instance.
C.
This leaves Broom‘s
The Supreme Court has long held, however, that the Clause also protects criminal defendants “against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 (1969) (emphasis added) (citing, among other cases, Ex parte Lange, 85 U.S. 163, 168 (1873)). Although this additional protection is enigmatic, and the source of some controversy, see, e.g., Dep‘t of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 798-805 (1994) (Scalia, J., dissenting) (arguing that the Clause prohibits only successive prosecutions, not successive punishments), in more recent times the Court has clarified that this facet of double jeopardy serves a “limited” purpose: to “ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments.” Jones v. Thomas, 491 U.S. 376, 381 (1989); see, e.g., Ex Parte Lange, 85 U.S. at 175-76 (holding that the sentencing court violated the Double Jeopardy Clause when it punished a criminal defendant with imprisonment and a fine when the criminal statute explicitly stated that such a defendant could be punished only with imprisonment or a fine). In other words, “if a legislature permits multiple punishments, a court can impose such punishments; if a legislature prohibits multiple punishments, a court cannot impose such punishments.” Palmer v. Haviland, 273 F. App‘x 480, 484 (6th Cir. 2008).
The Supreme Court has never applied the Double Jeopardy Clause in the particular context of a second execution. Although Willie Francis raised a double jeopardy concern in Resweber, the Court declined to apply the
Nonetheless, we need not reach a definitive conclusion regarding the scope of the Double Jeopardy Clause in the second-execution context because, regardless of the correctness of the Ohio Supreme Court‘s reasoning, that court plainly did not misapply clearly established Supreme Court precedent. Indeed, not only is the Ohio Supreme Court‘s conclusion consistent with the Supreme Court‘s general double jeopardy jurisprudence, as outlined above, but also the Ohio Supreme Court reached its conclusion without the benefit of any on-point Supreme Court guidance, thus rendering AEDPA deference particularly appropriate. See, e.g., Litschewski v. Dooley, 792 F.3d 1012, 1016-17 (8th Cir. 2015) (rejecting petitioner‘s novel double jeopardy claim on AEDPA review and deferring to state court‘s decision, in large part because the Supreme Court had addressed the issue at only a “high level of generality“); see also Wright, 552 U.S. at 126 (“Because our cases give no clear answer to the question presented, let alone one in [the petitioner‘s] favor, it cannot be said that the state court unreasonably applied clearly established Federal law.” (citations omitted)).6
Broom makes two arguments to the contrary. Neither convinces.
First, Broom makes a textualist argument that, because the state put his life “in jeopardy” once (during the first execution), it would violate the plain language of the Clause to put his life “in jeopardy” again (during a second execution).
Second, Broom latches onto the phrase “no man can be twice lawfully punished for the same offence“—a double jeopardy maxim dating back to Ex parte Lange—to argue that, if Ohio attempts to execute him again, it would run afoul of this well-established command (presumably because a second execution attempt would constitute a verboten “second punishment“). Appellant Reply Br. at 16. But just as Broom‘s prior argument read the term “jeopardy” out of its definitional context, this argument reads the Lange maxim out of its precedential context. As the Supreme Court explained in Jones v. Thomas, Lange “stands for the uncontested proposition that the Double Jeopardy Clause prohibits punishment in excess of that authorized by the legislature... not for the broader rule suggested by its dictum.” 491 U.S. at 383 (emphasis added). And because allowing Ohio to complete its execution of Broom would not go beyond what Ohio‘s legislature has authorized—for better or for worse, Ohio still permits capital punishment—the Lange maxim cannot help Broom here.
III. CONCLUSION
For these reasons, we AFFIRM the district court‘s judgment.