On September 15, 2009, the State of Ohio attempted to execute Petitioner Romell Broom by lethal injection. Broom was sentenced to death in 1985 for the rape and murder of Tryna Middleton. However, the execution team could not access a vein to administer the lethal drugs - despite more than a dozen attempts over two hours - and the procedure was aborted. The State intends to try again in June 2020. Broom has filed in this Court a second-in-time Petition and Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his death sentence and seeking to bar a second execution attempt. (Docs. 1, 18.) Respondent Warden Charlotte Jenkins has filed a Return of Writ to the Amended Petition (Doc. 21.) and Broom has filed a Traverse. (Doc. 30.) For the following reasons, the Court denies Broom's Amended Petition.
RELEVANT PROCEDURAL HISTORY
A. Broom's Conviction and Initial State and Federal Challenges Broom was convicted by a jury and sentenced to death in October 1985 in an Ohio state court for the rape and murder of Tryna Middleton. See State v. Broom, 40 Ohio St. 3d 277, 277-80 (Ohio 1988) (providing a detailed account of Broom's crimes and prosecution). Broom's conviction and sentence were affirmed on direct appeal. See State v. Broom, No. 51237, 1987 WL 14401 (Ohio Ct. App. July 23, 1987); Broom, 40 Ohio St. 3d at 280; Broom v. Ohio, 490 U.S. 1075 (1989). He was unsuccessful in state post-conviction proceedings. See State v. Broom, No. 72581, 1998 WL 230425 (Ohio Ct. App. May 7, 1998); State v. Broom, 83 Ohio St. 3d 1430 (Ohio 1998).
Broom then sought federal habeas relief. In June 1999, he filed a Petition for Writ of Habeas Corpus in this Court, asserting thirty grounds for relief. (See Case No. 1:99 CV 30 ("Habeas 1"), Doc. 13.) After conducting an evidentiary hearing on certain of his claims in January 2002 (see Habeas 1, Docs. 100-05), another judge on this Court denied Broom's Petition in August 2002 (Habeas 1, Doc. 113).1 The Sixth Circuit Court of Appeals affirmed that ruling. Broom v. Mitchell, 441 F.3d 392 (6th Cir. 2006), reh'g and reh'g en banc denied (Aug. 9, 2006). The United States Supreme Court denied certiorari. Broom v. Mitchell, 549 U.S. 1255 (2007), reh'g denied, 549 U.S. 1363 (2007).
Soon after, Broom returned to state court and filed a successor Petition for Post-Conviction Relief in the trial court in which he asserted among other things, a claim underBrady v. Maryland, 373 U.S. 83 (1963).2 See State v. Broom, No. 91297, 2009 WL 2263824, at *4 (Ohio Ct. App. July 30, 2009). Broom's Petition ultimately was denied. See id. (reversing trial court's dismissal of petition); State v. Broom, 123 Ohio St. 3d 114 (Ohio 2009) (reversing court of appeals), reconsideration denied, 123 Ohio St. 3d 1475 (Ohio 2009).
Broom then filed a Motion in this Court seeking relief from the Court's earlier judgment dismissing his Petition so that the Court could reopen the case and address the Brady claim that was the subject of his post-conviction review. (Habeas 1, Doc. 133.) The Court denied the Motion. (Habeas 1, Doc. 141.) The Sixth Circuit affirmed that judgment. (Habeas 1, Doc. 145.)
B. The Failed Execution Attempt In the midst of Broom's post-conviction proceedings, on April 22, 2009, the Ohio Supreme Court set Broom's execution date for September 15, 2009. See State v. Broom, 122 Ohio St. 3d 1497 (Ohio 2009).
The execution, however, was not carried out. Despite repeated attempts over two hours, the execution team could not access a vein to deliver the lethal injection. The Ohio Supreme Court set forth the following facts relating to the failed execution attempt:
Facts of September 15, 2009
Broom was transported to the Southern Ohio Correctional Facility ("Lucasville") on September 14, 2009, in anticipation of his executionscheduled 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.
Dr. Jonathan Groner examined and photographed Broom three or four days afterward. The photographs show 18 injection sites: one on each bicep, four on his left antecupital (forearm), three on his right antecupital, three on his left wrist, one on the back of his left hand, three on the back of his right hand, and one on each ankle. Prison officials later confirmed that he was stuck at least 18 times.
Dr. Mark Heath met with Broom one week after the event. Dr. Heath observed "considerable bruising" and a lot of "deep and superficial" tissue damage consistent with multiple probing. Dr. Heath also posited that the actual numberof catheter insertions was much higher than the number of needle marks, because according to what Broom told him, the medical team would withdraw the catheter partway and then reinsert it at a different angle, a procedure known as "fishing."
State v. Broom, 146 Ohio St. 3d 60, 61-63 (Ohio 2016).
C. Broom's Initial State and Federal Litigation Challenging Any Further Execution Attempt On September 18, 2009, three days after the failed execution, Broom filed a civil rights action under 42 U.S.C. § 1983 in the United States District Court for the Southern District of Ohio, challenging Ohio's lethal injection execution protocol and seeking to prevent the State from attempting to execute him again. (Case No. 2:09 CV 823 ("§ 1983 Case"), Doc. 3).3 In an Amended...
