UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANIEL LEE BEDFORD,

Plaintiff,

Case No.: 2:11-cv-351

-v- JUDGE SMITH

Magistrate Judge King

JOHN R. KASICH, GOVERNOR, et al.,

Defendants.

OPINION AND ORDER

Plaintiff Daniel Lee Bedford, a state prisoner sentenced to death by the State of Ohio, has filed

a civil rights action under 42 U.S.C. § 1983 asserting a single claim for relief for violation of his

Procedural Due Process rights as guaranteed by the Fourteenth Amendment to the United States

Constitution (Doc. 11). Plaintiff Bedford brings this action against Defendants John R. Kasich,

Governor of the State of Ohio, Gary C. Mohr, Director of the Ohio Department of Rehabilitation and

Correction (“ODRC”), Donald Morgan, Warden of the Southern Ohio Correctional Facility, David

Bobby, Warden of the Ohio State Penitentiary, Mike Dewine, Attorney General of the State of Ohio,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald Springman, Assistant Hamilton

County Prosecuting Attorney/Chief of the Appellate Division. 

This matter is before the Court on Plaintiff Bedford’s Motion for Temporary Restraining

Order and Preliminary Injunction seeking a stay of his execution currently scheduled for May 17,

2011 (Doc. 2). Defendants have filed a Response in Opposition to Plaintiff’s Motion (Doc. 8) and

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have also filed a Motion to Dismiss Plaintiff’s Complaint for Failure to State a Claim (Doc. 7).

Responses and replies have been filed to the respective motions. (Docs. 16, 17 and 20). The Court

held a hearing on the Motions on May 2, 2011. Both sides were given the opportunity to present

their arguments and rebuttals. For the reasons that follow, the Court DENIES Defendants’ Motion

to Dismiss and DENIES Plaintiff’s Motion for Temporary Restraining Order and Preliminary

Injunction.

I. BACKGROUND

Plaintiff Daniel Lee Bedford is currently scheduled to be executed by the State of Ohio on

May 17, 2011. Plaintiff Bedford was sentenced to death on November 6, 1984, for the aggravated

murder of Gwen Toepfert.

The facts presented at trial indicate that in 1978, Bedford met Gwen Toepfert, whose father

owned the bar where Bedford worked. For the next several years, the two were involved in an “onagain, off-again” relationship. By 1984, they were estranged. On April 21, 1984, Bedford visited

Toepfert’s apartment bearing a gift and hoping to make amends, but instead learned that her new

boyfriend John Smith was there. In the early morning hours of April 24, 1984, Bedford gained entry

into Toepfert’s apartment, and shot and killed both her and her new boyfriend, John Smith. At the

time of the murders, Ms. Toepfert’s roommate, JoAnn Funk was present in the apartment and

observed most of what transpired in the apartment. Bedford then fled to Tennessee and visited a

former acquaintance, to whom Bedford eventually confessed that he had killed two people.

Bedford’s acquaintance turned him in and he was arrested by the Tennessee police. Bedford gave

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 The full details of the underlying case are not included as they have been fully set forth in the

state courts decisions and this Court and the Sixth Circuit’s orders on Bedford’s habeas corpus

petition and as they are not relevant to the instant proceedings. 

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a statement admitting to the crimes and later gave a similar statement to the Cincinnati authorities.1

II. PROCEDURAL HISTORY

Following a jury trial, Bedford was convicted of the aggravated murder of Toepfert and the

murder of Smith. After a mitigation hearing, the jury recommended the death penalty, and the trial

court agreed. Bedford’s conviction and death sentence were upheld by the state court of appeals and

the Ohio Supreme Court. See State v. Bedford, No. C-840850, 1986 Ohio App. LEXIS 8608 (Ohio

Ct. App. Oct. 8, 1986); State v. Bedford, 39 Ohio St.3d 122 (1988). Bedford sought state

post-conviction relief, which the Ohio courts denied. See State v. Bedford, 1991 Ohio App. LEXIS

4252 (1st Dist. Ct. App. 1991) (per curiam), appeal denied, State v. Bedford, 583 N.E.2d 1320 (Ohio

1992). Bedford then filed a motion for reconsideration and another seeking reinstatement of his

direct appeal, both to no avail. See State v. Bedford, 626 N.E.2d 957 (Ohio 1994); State v. Bedford,

622 N.E.2d 656 (Ohio 1993). 

In 1992, Bedford filed a petition for habeas corpus relief. (Case No.: 1:92-cv-00547). This

Court denied his habeas petition. Bedford v. Collins, 2007 U.S. Dist. LEXIS 33875 (S.D. Ohio

2007) (Smith, J.). The judgment was affirmed by the Sixth Circuit Court of Appeals. Bedford v.

Collins, 567 F.3d 225 (6th Cir. 2009). Thereafter, Bedford was denied a writ of certiorari by the

United States Supreme Court. Bedford v. Collins, 130 S. Ct. 2344 (2010).

On August 11, 2010, Bedford filed a petition in the Hamilton County Court of Common Pleas

asserting that pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), he was mentally retarded and

therefore ineligible for the death penalty. On August 17, 2010, the State filed a motion to dismiss the

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petition, arguing that it was untimely. On October 18, 2010, the trial court issued a final order

summarily dismissing the petition. Bedford thereafter filed a timely appeal to the Ohio Court of

Appeals, which remained pending at the time Bedford filed his complaint.

On April 29, 2011, however, the state appellate court issued a decision affirming the trial

court’s judgment “as modified.” (Doc. 14-1, at 2). Specifically, the state appellate court held that

the state trial court was without jurisdiction to entertain Bedford’s petition under Ohio Rev. Code

§ 2953.21 because Bedford had filed his petition “well after the 180 days prescribed by R.C.

2953.21(A)(2)...[.]” (Doc. 14-1, at 6). As for the jurisdictional requirements for filing a successive

and/or untimely petition, set forth in Ohio Rev. Code § 2953.23, the state appellate court held that

Bedford plainly satisfied the §2953.23(A)(1)(a) requirement of demonstrating the existence of a new,

retrospectively applicable constitutional right–Atkins–but that Bedford could not satisfy the

§2953.23(A)(1)(b) requirement of demonstrating by clear and convincing evidence that but for

constitutional error at the sentencing, no reasonable factfinder would have found Bedford eligible for

the death penalty. (Doc. 14-1, at 7). In so holding, the state appellate court examined the mental

health evidence that Bedford had submitted in support of his petition–albeit, evidence adduced in

connection with Bedford’s 1984 trial and sentencing and prior to the Atkins and Lott decisions–and

concluded that the evidence was insufficient to establish “by clear and convincing evidence the

claimed Eighth Amendment violation.” (Id. at 14). Bedford’s counsel indicated at the May 2, 2011

hearing that Bedford is represented by different counsel in his state-court Atkins litigation and that

those attorneys are preparing to initiate an appeal of the court of appeals’ decision to the Ohio

Supreme Court.

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On February 8, 2011, while Bedford’s appeal was pending before the intermediate appellate

court, the Supreme Court of Ohio issued an order setting Bedford’s execution for May 17, 2011. On

February 15, 2011, Bedford moved the Supreme Court of Ohio to stay his execution, citing in part

his pending post conviction litigation. On April 6, 2011, the Supreme Court of Ohio denied

Bedford’s motion. On April 25, 2011, Bedford initiated this case by filing his Complaint under 42

U.S.C. §1983 and a Motion for a Temporary Restraining Order and Preliminary Injunction.

III. STANDARD OF REVIEW

Rule 65(b) of the Federal Rules of Civil Procedure permits a party to seek injunctive relief to

prevent immediate and irreparable injury. A temporary restraining order is an extraordinary remedy

whose purpose is to preserve the status quo. The factors considered in granting a temporary

restraining order or a preliminary injunction are similar in nature. In the Sixth Circuit, it is

well-settled that the following factors are to be considered in determining whether a temporary

restraining order is necessary:

(1) whether the movant has a strong or substantial likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the relief requested;

(3) whether issuance of the injunction will cause substantial harm to others; and (4)

whether the public interest will be served by issuance of the injunction.

Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432 (6th Cir.

2004). The factors are not prerequisites; rather, they must be balanced. Capobianco, D.C. v.

Summers, 377 F.3d 559, 561 (6th Cir. 2004); see also Michigan Bell Tel. Co. v. Engler, 257 F.3d

587, 592 (6th Cir. 2001) (no single factor is determinative.); Monongahela Power Co. v. Schriber,

322 F. Supp. 2d 902, 918 (S.D. Ohio 2004).

The decision whether or not to issue a preliminary injunction falls within the sound discretion

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of the district court. See Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th

Cir. 1982). “The purpose of a preliminary injunction is always to prevent irreparable injury so as to

preserve the court’s ability to render a meaningful decision on the merits.” United Food &

Commercial Workers Union, Local 1099 v. Southwest Ohio Reg’l Transit Auth., 163 F.3d 341, 348

(6th Cir. 1998) (citing Stenberg v. Checker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978)).

IV. DISCUSSION

As a threshold matter, the Court must address whether it has jurisdiction. This requires the

Court to determine whether Plaintiff Bedford alleges an actionable ground for relief under 42 U.S.C.

§ 1983 and a violation of due process. The Court must also determine whether Bedford’s Complaint

alleges facts sufficient to overcome the bar of Eleventh Amendment Immunity. Assuming that

Bedford has adequately pled a §1983 action, the Court will address the merits of Bedford’s Motion

for a Temporary Restraining Order and Preliminary Injunction. 

A. Motion to Dismiss

1. Jurisdiction

Before entertaining the merits of Plaintiff Bedford’s request for a temporary restraining order

and preliminary injunction staying his execution, the Court must determine whether or to what extent

it has jurisdiction. See, e.g., American Telecom Co., L.L.C. v. Republic of Lebanon, 501 F.3d 534,

537 (6th Cir. 2007) (“Subject matter jurisdiction is always a threshold determination.”) (citing Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 1010 (1998)). This determination favors Bedford

and compels the Court to find that his claims are properly asserted under 42 U.S.C. § 1983.

In Skinner v. Switzer, 562 U.S. __, 131 S.Ct. 1289 (2011), the United States Supreme Court

considered the following question: “May a convicted state prisoner seeking DNA testing of crimeCase: 2:11-cv-00351-GCS-NMK Doc #: 23 Filed: 05/04/11 Page: 6 of 26 PAGEID #: <pageID>
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scene evidence assert that claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim

cognizable in federal court only when asserted in a petition for a writ of habeas corpus under 28

U.S.C. § 2254?” 131 S.Ct. at 1293. The Supreme Court concluded that “a postconviction claim for

DNA testing is properly pursued in a § 1983 action.” Id. The Supreme Court explained that

Skinner’s claim sounded under § 1983, rather than in habeas corpus, because “[s]uccess in the suit

gains for the prisoner only access to the DNA evidence, which may prove exculpatory, inculpatory,

or inconclusive.” Id. “In no event,” the Supreme Court continued, “will a judgment that simply

orders DNA tests ‘necessarily impl[y] the unlawfulness of the State’s custody.’ ” Id. (quoting

Wilkinson v. Dotson, 544 U.S. 74, 81 (2005)).

Bedford, like Skinner, alleges that the state courts’ interpretation and/or application of a state

rule has deprived Bedford of his Fourteenth Amendment right to procedural due process. He seeks

the right to develop and present evidence in the state courts to establish that he is mentally retarded

and therefore ineligible for the death penalty. As in Skinner, success in Bedford’s suit would gain for

Bedford only an opportunity to develop evidence that may or may not, ultimately, establish that he

is mentally retarded and ineligible for execution. Further, as in Skinner, success in Bedford’s suit will

not necessarily imply the unlawfulness of the state’s death sentence against him.

In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that the

Eighth Amendment prohibits states from executing mentally retarded individuals. In so holding,

however, the Supreme Court left to the states the tasks of not only establishing the standard for

finding that a person is mentally retarded, but also fashioning procedures for pursuing an “Atkins”

claim.

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The Ohio Supreme Court in State v. Lott, 97 Ohio St. 3d 303 (2002), set forth the substantive

standards and procedural guidelines for pursuing an Atkins claim in Ohio. According to Lott, an

individual is mentally retarded for Atkins’ purposes if he or she demonstrates all three of the

following: (1) significantly subaverage intellectual functioning; (2) significant limitations in two or

more adaptive skills, such as communication, self-care, and self-direction; and (3) onset before the

age of 18. Id. at 305. The Ohio Supreme Court relied on the fact that the United States Supreme

Court in Atkins cited the same standard with approval and that both the American Association of

Mental Retardation and the American Psychiatric Association define the standard as such. The Ohio

Supreme Court also held “that there is a rebuttable presumption that a defendant is not mentally

retarded if his or her IQ is above 70.” Id. With respect to procedural guidelines, the Ohio Supreme

Court held that the procedures set forth in Ohio Rev. Code § 2953.21 et seq. were suitable for

pursuing at Atkins claim and that such claims are to be adjudicated through a bench trial, not a jury

trial. Id. at 305-06. The Ohio Supreme Court also held that the accused bears the burden of proving

an Atkins claim by a preponderance of the evidence, that the trial court shall conduct a de novo

review of the evidence presented, and that the trial court must issue written findings setting forth the

rationale for its decision. Id. at 306-07. At the conclusion, the Ohio Supreme Court clarified that

defendants who already had been sentenced to death had 180 days from the date of the Lott decision

to file their postconviction petitions alleging at Atkins claim, but that “[p]etitions filed more than 180

days after this decision must meet the statutory standards for untimely and successive petitions for

postconviction relief.” Id. at 307.

In the instant case, as noted in the procedural history above, Bedford filed a petition in the

Hamilton County Court of Common Pleas on August 11, 2010 asserting he was ineligible for

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execution under Atkins v. Virginia, 536 U.S. 304 (2002). On August 17, 2010, the State filed a

motion to dismiss, arguing that the petition was untimely. On October 18, 2010, the trial court issued

a final order summarily dismissing the petition without findings of fact, conclusions of law, or any

reasoning at all. Bedford thereafter filed a timely appeal to the Ohio Court of Appeals, which

remained pending at the time that Bedford filed his complaint. On April 29, 2011, however, the state

appellate court issued a decision affirming the trial court’s judgment “as modified.” (Doc. 14-1, at

2).

Specifically, the state appellate court held that the state trial court was without jurisdiction

to entertain Bedford’s petition under Ohio Rev. Code § 2953.21 because Bedford had filed his

petition “well after the 180 days prescribed by R.C. 2943.21(A)(2)...[.]” (Doc. 14-1, at 6). As for

the jurisdictional requirements for filing a successive and/or untimely petition, set forth in Ohio Rev.

Code § 2953.23, the state appellate court held that Bedford plainly satisfied the (A)(1)(a) requirement

of demonstrating the existence of a new, retrospectively applicable constitutional right–Atkins–but

that Bedford could not satisfy the (A)(2) requirement of demonstrating by clear and convincing

evidence that but for constitutional error at the sentencing, no reasonable factfinder would have found

Bedford eligible for the death penalty. (Doc. 14-1, at 7). In so holding, the state appellate court

examined the mental health evidence that Bedford had submitted in support of his petition–albeit,

evidence adduced in connection with Bedford’s 1984 trial and sentencing and prior to the Atkins and

Lott decisions–and concluded that the evidence was insufficient to establish “by clear and convincing

evidence the claimed Eighth Amendment violation.” (Id. at 14).

Bedford argues herein that “[t]he State of Ohio has denied Mr. Bedford access to the state

processes by which it is determined whether he is mentally retarded and therefore ineligible for capital

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punishment.” (Doc. 11, at 2, ¶ 3). Bedford reasons that he “is scheduled to be executed without any

determination made as [to] whether or not he is mentally retarded” and that “[t]his deprivation of Mr.

Bedford’s liberty interest in receiving a determination regarding mental retardation is in violation of

his procedural-due-process right.” (Id.). In so asserting, Bedford emphasizes that he is not seeking

to challenge the merits of the trial court’s or appellate court’s disposition. “Instead,” Bedford

explains, “this is an independent federal claim, challenging the constitutionality of the state rule (the

exclusive procedure for pursuing Atkins claims set out in Lott) as construed by the state court.” (Id.

at 10, ¶ 39).

In his response to Defendants’ motion to dismiss, Bedford expands upon his arguments.

Specifically, Bedford takes aim at various aspects of the state appellate court’s decision, which the

state appellate court had not issued at the time that Bedford filed his complaint. Bedford complains

that the state appellate court “purported to evaluate the merits of Mr. Bedford’s mental-retardation

claim, but did so only on the basis of the statement of his claim in his Atkins petition and material

from his trial generated under a pre-Atkins standard, still without permitting Mr. Bedford to develop

and present evidence of his claim, as he had requested.” (Doc. 16, at 4). “Thus,” Bedford reiterates,

he “continues to be denied his liberty interest ‘in receiving a full and adequate determination as to

mental retardation before he is executed.’ ” (Id. (quoting Complaint, Doc. 11, at ¶ 31)).

The Court is satisfied that under Skinner v. Swtizer, Bedford’s complaint alleges a cause of

action under 42 U.S.C. § 1983. To reiterate: Bedford, like Skinner, alleges that the state courts’

interpretation and/or application of a state rule–State v. Lott and Ohio Rev. Code § 2953.23–has

deprived Bedford of his Fourteenth Amendment right to procedural due process. He seeks the right

to develop and present evidence in the state courts establishing that he is mentally retarded and

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therefore ineligible for the death penalty. As in Skinner, success in Bedford’s suit would gain only

an opportunity for Bedford to develop evidence that may or may not establish that he is mentally

retarded and ineligible for execution. As in Skinner, success in Bedford’s suit will not necessarily

imply the unlawfulness of the state’s death sentence against him. Bedford made clear in his pleadings

and during oral argument that he is not challenging the merits of the state courts’ disposition of his

Atkins petition and is not asking this Court to address the merits of his claim that he is mentally

retarded and ineligible for the death penalty. The only judgment that Bedford seeks is a judgment

finding that the Ohio courts’ application of State v. Lott violated Bedford’s Fourteenth Amendment

right to procedural due process. Such a judgment would entitle Bedford only to a full hearing and

process on his Atkins petition before he could be executed. It in no way would speak to the validity

of Bedford’s conviction or death sentence.

Defendants argued at the hearing that Bedford had failed to state a claim upon which this

Court could grant relief because this Court could neither legally or logically command any of the

named Defendants not to make certain arguments against Bedford’s Atkins petition nor legally or

logically direct the state courts about the manner in which they are to apply Lott to Bedford. The

Court disagrees. The very essence of a constitutional violation asserted under color of 42 U.S.C. §

1983 authorizes federal courts to issue a variety of reliefs, including a declaratory judgment that

particular state rule or execution protocol is constitutionally inadequate. Such relief does not imply

the underlying criminal judgment against the petitioner; in this case, it would simply prohibit the state

courts from carrying out the criminal judgment against Bedford until the state corrects the

constitutionally inadequate process.

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Because the Court concludes that Bedford’s claim sounds in 42 U.S.C. § 1983, the Court

DENIES Defendants’ motion to dismiss the complaint for the failure to state a claim upon which

relief may be granted.

2. Eleventh Amendment Immunity

Defendants argue that Bedford’s § 1983 claim is barred by the Eleventh Amendment to the

United States Constitution. The Eleventh Amendment establishes that:

The Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. Amend. XI. Under the Eleventh Amendment, federal courts lack jurisdiction to hear

suits by private citizens against a State unless the State explicitly consents to the suit or unless

Congress, pursuant to a valid exercise of power, indisputably consents its intent to abrogate state

immunity. Port Auth. Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990). Furthermore,

“[s]tates are protected by the Eleventh Amendment from suits brought under section 1983, because

the statute only creates a cause of action against a ‘person’ who causes the deprivation of another’s

Constitutional rights.” Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, n.8 (6th Cir. 2007)

(citing Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)).

 Plaintiff Bedford’s claim is against various officials of the State of Ohio and Hamilton

County in their individual and official capacities seeking an injunction staying his execution currently

scheduled for May 17, 2011. Bedford argues that Ex parte Young permits his claim against the

Defendants who are proper parties because they are acting under color of state law in allegedly

violating Bedford’s procedural due process rights. 209 U.S. 123, 150-157 (1908). In Ex parte

Young, the United States Supreme Court established an exception to Eleventh Amendment immunity

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for claims for injunctive relief against individual state officials in their official capacities. The Ex parte

Young Court held that a suit challenging the constitutionality of the state official’s action in enforcing

state law is not considered to be against the State, and therefore Eleventh Amendment immunity does

not apply. Id. at 150-156. The test for determining whether the Ex parte Young exception applies

is a “straightforward” one. Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645

(2002). The court considers “whether [the] complaint alleges an ongoing violation of federal law and

seeks relief properly characterized as prospective.” Id. (alteration in original) (citation omitted);

Dubuc v. Mich. Bd. of Law Exam’rs, 342 F.3d 610, 616 (6th Cir. 2003). The focus of the inquiry

remains on the allegations only; it “does not include an analysis of the merits of the claim.” Verizon,

535 U.S. at 646; Dubuc, 342 F.3d at 616. Moreover, the Ex parte Young fiction does not apply

unless the officer sued has “some connection with the enforcement of the act.” Ex parte Young, 209

U.S. at 157. 

Defendants argue that Ex parte Young does not apply because they are enforcing a

presumptively valid state court judgment and not an allegedly unconstitutional time limitation for

bringing a timely Atkins claim. (Defs.’ Reply at 4). Defendants rely on Virginia Office for Protection

and Advocacy v. Stewart, 563 U.S. ___, 2011 U.S. LEXIS 3186 (2011), a recent United States

Supreme Court case that applied Ex Parte Young and provided a close examination of when it

applied. The Stewart Court held:

This doctrine has existed alongside our sovereign-immunity jurisprudence for more

than a century, accepted as necessary to “permit the federal courts to vindicate federal

rights.” Pennhurst, 465 U.S., at 105, 104 S. Ct. 900, 79 L. Ed. 2d 67. It rests on the

premise -- less delicately called a “fiction,” id., at 114, n. 25, 104 S. Ct. 900, 79 L.

Ed. 2d 67 -- that when a federal court commands a state official to do nothing more

than refrain from violating federal law, he is not the State for sovereign-immunity

purposes. The doctrine is limited to that precise situation, and does not apply “when

‘the state is the real, substantial party in interest,’” id., at 101, 104 S. Ct. 900, 79 L.

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Ed. 2d 67 (quoting Ford Motor Co. v. Department of Treasury of Ind., 323 U.S. 459,

464, 65 S. Ct. 347, 89 L. Ed. 389 (1945)), as when the “‘judgment sought would

expend itself on the public treasury or domain, or interfere with public

administration,’” 465 U.S., at 101, n. 11, 104 S. Ct. 900, 79 L. Ed. 2d 67 (quoting

Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963)).

Id. at *13-14.

Defendants assert that in order to trigger Ex parte Young, they must have some connection

to enforcement of the allegedly unconstitutional act. Yet, Defendants assert that this is impossible

as Bedford’s state court judgment is presumptively valid. It has been upheld in the Ohio courts and

in federal habeas corpus. While these named Defendants may not have actually done anything

preventing Bedford from meeting the requirements set forth in Ohio Rev. Code §§ 2953.21 or

2953.23, to file an Atkins claim, at least one named Defendant, the Ohio Attorney General, is charged

with the enforcement of Ohio’s laws. The Court therefore concludes that the allegations in Bedford’s

Complaint fall within the Ex parte Young exception. Bedford has alleged an ongoing violation of

federal law, specifically that Defendants continue to deny him the opportunity to fully and fairly

develop and present his Atkins claim before executing him, in violation of his procedural due process

rights. Further, Bedford is seeking an injunction staying his execution scheduled for May 17, 2011,

which constitutes prospective relief. The Court therefore finds that the Ex parte Young exception

applies to this case as a matter of law and Defendants are not entitled to immunity under the Eleventh

Amendment. 

Additionally, Defendants argue that “none of the named defendants are actively ‘violating

federal law.’” (Defs.’ Mot. at 6). Defendants assert that the named Defendants are not even capable

of depriving Plaintiff of his liberty interest in utilizing the state procedures set out in State v. Lott, 97

Ohio St. 3d 303, 779 N.E.2d 1011 (2002). Even assuming everything Bedford alleges is true,

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Defendants argue that it was not “the action or inaction of the named defendants that led to any

alleged ‘procedural due process’ violation.” (Defs.’ Mot. at 6). Defendants further argue that they

are doing nothing more than “attempting to enforce presumptively valid judgments of the state

courts.” (Id.). However, as set forth above, in evaluating whether the Ex parte Young exception

applies, the Court need only look to the allegations in the complaint, not the merits of the claim. See

Verizon, 535 U.S. at 646; Dubuc, 342 F.3d at 616. 

Based on the foregoing, Plaintiff Bedford’s claim against the Defendants in this case is not

barred by Eleventh Amendment immunity as it falls within the exception carved out by Ex parte

Young. 

3. Waiver

Defendants argue that Bedford waived his right to bring an Atkins claim and accordingly has

no claim here. Defendants assert that “[t]here is nothing unreasonable in placing a reasonable time

limitation on asserting claims, and in declining to review a claim that has not been timely presented.”

(Defs.’ Mot. at 9). Defendants rely on a number of state and federal courts that have held that claims

under Atkins may be waived or defaulted if not properly presented according to state procedures.

State v. Frazier, 115 Ohio St. 3d 139, 161-162 (2007); Hedrick v. True, 443 F.3d 342, 363-366 (4th

Cir. 2006); Bowling v. Commonwealth, 163 S.W.3d 361, 371 (Ky. 2005); Winston v. Commonwealth,

268 Va. 564, 617 (2004); Head v. Hill, 277 Ga. 255, 259 (2003). 

Plaintiff Bedford argued in his response and at the hearing that the waiver cases are not

appropriate in this case because the Lott decision provided for an alternative means of bringing an

Atkins claims, namely by following the requirements set forth in Ohio Rev. Code §2953.23, when the

claim in not timely filed in accordance with Ohio Rev. Code §2353.21. The Court agrees, as

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discussed in detail above, that Bedford failed to file a timely Atkins claim in accordance with Ohio

Rev. Code §2953.21, but that does not mean that he has waived his right to bring a claim. It just

means that he now has to meet the requirements set forth in Ohio Rev. Code §2953.23. Therefore,

the Court finds that Defendants’ waiver argument is not applicable in this case since Bedford did have

an avenue in which to raise his Atkins claim.

B. Temporary Restraining Order and/or Preliminary Injunction

As noted above, in the Sixth Circuit, the following factors are to be considered in determining

whether a temporary restraining order is necessary:

(1) whether the movant has a strong or substantial likelihood of success on the merits;

(2) whether the movant would suffer irreparable injury without the relief requested;

(3) whether issuance of the injunction will cause substantial harm to others; and (4)

whether the public interest will be served by issuance of the injunction.

Chabad of S. Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d at 432. As the Sixth

Circuit has explained, “ ‘[t]hese factors are not prerequisites that must be met, but are interrelated

considerations that must be balanced together.’ ” Cooey v. Strickland, 589 F.3d 210, 218 (6th Cir.

2009) (quoting Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150, 153

(6th Cir. 1991)). The Court will assess each of the factors, irrespective of whether or to what extent

the parties offer arguments on the factors.

1. Likelihood of success on the merits

This factor does not favor Bedford. Bedford brings his claims under 42 U.S.C. § 1983,

arguing that Defendants have violated his procedural due process rights in refusing to determine,

before executing him, whether he is mentally retarded. In so arguing, Bedford appears to take issue

with the constitutional adequacy of the procedures set forth in State v. Lott , as construed or applied

by the state courts to him.

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Section 1983 provides in relevant part:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to be

subjected, any citizen of the United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress. 

A § 1983 claim must satisfy two elements: “1) the deprivation of a right secured by the Constitution

or laws of the United States, and 2) the deprivation was caused by a person acting under color of

state law.” Ellison v. Garbarino, 48 F.3d 192, 194 (6th Cir. 1995). Liability under § 1983 requires

the defendant’s direct involvement in causing the alleged damages. “Because vicarious liability is

inapplicable to . . . [section] 1983 suits, a plaintiff must prove that each Government-official

defendant, through the official’s own individual actions, has violated the Constitution.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1948 (2009).

Bedford argues under color of § 1983 that he has a “liberty interest in having a determination

made as to whether or not he is mentally retarded before he is executed by the State of Ohio.”

(Plaintiff’s Motion, Doc. 2, at 7). He also argues that the state courts have denied him, wrongly, a

full and fair opportunity to litigate his Atkins claim. For the reasons that follow, the Court finds that

Bedford’s argument does not have a strong or substantial likelihood of succeeding on the merits.

Bedford did not receive a full hearing on his mental retardation claim because under State v. Lott, he

was not entitled to full hearing and process unless he first satisfied the procedural requirements in

Ohio Rev. Code § 2953.23(A) for the filing of an untimely Atkins petition.

One of Bedford’s arguments is that he was deprived of his procedural due process rights in

the Hamilton County Court of Common Pleas because that court failed to issue written findings and

set forth its rationale for finding the defendant mentally retarded or not. The Hamilton County Court

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of Common Pleas, in dismissing Bedford’s Atkins petition, stated only that “the petition is not well

taken and is overruled.” The State had argued in its motion to dismiss that Bedford’s petition was

not timely. Bedford does not have a strong or substantial likelihood of succeeding on this argument

for two reasons. First, the state trial court was not required to issue findings of fact and conclusions

of law because Bedford’s complaint was before the state trial court pursuant to Ohio Rev. Code §

2953.23, not § 2953.21. Ohio law requires state trial courts to issue findings of fact and conclusions

of law on petitions brought under the latter, but not the former. See, e.g., State ex rel. Kimbrough

v. Greene, 98 Ohio St. 3d 116, 117 (2002) (“a trial court need not issue findings of fact and

conclusions of law when it dismisses an untimely petition.”); cf. Easley v. Hurley, No. 2:03-cv-460,

2005 WL 2250682, at * 12 (S.D. Ohio Sep. 15, 2005) (“A trial court’s decision that a motion for

post-conviction relief is untimely renders unnecessary any further inquiry into its merits.”).

Second, the state appellate court’s decision cured any alleged deficiency in the state trial

court’s decision. In the wake of the state appellate court’s decision explaining in detail why the trial

court did not have jurisdiction to entertain Bedford’s Atkins’ petition due to his failure to satisfy the

“clear and convincing” jurisdictional requirement set forth in Ohio Rev. Code § 2953.23(A)(2),

Bedford will not be heard to complain that he has not been provided with the state courts’ rationale

underlying its conclusion that the trial court did not have jurisdiction to entertain his Atkins’ petition.

Thus, any argument that Bedford was deprived of his procedural due process rights in the Hamilton

County Court of Common Pleas because that court failed to issue written findings and set forth its

rationale for denying Bedford’s Atkins’ petition does not have a strong or substantial likelihood of

succeeding on the merits.

The Court’s finding in this regard provides a segue for addressing another argument advanced

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by Bedford in his response to the Defendants’ motion to dismiss (Doc. 16) and during the May 2,

2011 hearing. Bedford complains that , “[a]lthough the trial court’s judgment and both parties’ briefs

to the appellate court concerned only the procedural issue of timeliness, (see id. at PAGEID #: 27-53;

57), the Court of Appeals adjudicated the merits of Mr. Bedford’s claim by referencing evidence and

testimony presented at Mr. Bedford’s 1984 trial (see Doc. No. 14-1 at PAGEID #: 219-225).

Bedford does not have a strong or substantial likelihood of succeeding on this argument because it

is based on a misreading of the state appellate court’s decision. The state appellate court did not

adjudicate Bedford’s mental retardation claim on the merits. Rather, the state appellate court

examined at length the mental retardation criteria set forth in Atkins and Lott, as well as the evidence

that Bedford had submitted in support of his Atkins petition, and concluded that Bedford failed to

satisfy the “clear and convincing” jurisdictional requirement set forth in Ohio Rev. Code §

2953.23(A)(2) for filing an untimely petition. The state appellate court’s decision, however detailed,

cannot be characterized as an adjudication on the merits of Bedford’s mental retardation claim. The

only adjudication made by the state appellate court was that the state trial court had no jurisdiction

to entertain Bedford’s late petition “because Bedford failed to satisfy the R.C. 2953.23 jurisdictional

requirement of outcome-determinative constitutional error in the imposition of his death sentence[,]”

and that the petition was accordingly subject to dismissal without an evidentiary hearing or findings

of fact and conclusions of law. (Doc. 14-1, at 15). Thus, any argument that Bedford was deprived

of procedural due process because the state appellate court, improperly, adjudicated his mental

retardation claim on the merits, does not have a strong or substantial likelihood of succeeding on the

merits.

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The essence of Bedford’s due process claim, as this Court understands it, is that the state

courts violated his procedural due process rights by the manner in which they applied State v. Lott

to deny him an opportunity to fully and fairly litigate his Atkins claim. This argument does not have

a strong or substantial likelihood of succeeding on the merits. By way of reminder, in State v. Lott,

the Ohio Supreme Court set the time limit for death row inmates to bring claims under Atkins v.

Virginia, based on Ohio’s recognition that this new rule of constitutional law should apply

retroactively to prisoners whose sentences were imposed before the Atkins decision. Lott ordered

that any petition for postconviction relief specifically raising an Atkins claim “must be filed within 180

days from the date of judgment in this case.” Lott, 97 Ohio St. 3d at 308. Lott further held that

“[p]etitions filed more than 180 days after this decision must meet the statutory standards for untimely

and successive petitions for postconviction relief.” Id. at 307. Bedford was sentenced to death in

1984. Lott was decided on December 11, 2002. Bedford filed his Atkins petition in the state trial

court on August 11, 2010. Bedford obviously filed his Atkins petition well outside the deadline set

by Lott. Thus, he was required to satisfy the statutory standards for untimely and successive petitions

for postconviction relief in order to litigate his Atkins petition.

Those statutory standards are set forth in Ohio Rev. Code § 2953.23(A) and they are

jurisdictional in nature. Section 2953.23(A) provides:

(A) Whether a hearing is or is not held on a petition filed pursuant to section 2953.21

of the Revised Code, a court may not entertain a petition filed after the expiration of

the period prescribed in division (A) of that section or a second petition or successive

petitions for similar relief on behalf of a petitioner unless both of the following apply:

(1) Either of the following applies:

(a) The petitioner shows that the petitioner was unavoidably prevented from discovery

of the facts upon which the petitioner must rely to present the claim for relief.

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(b) Subsequent to the period prescribed in division (A)(2) of section 2953.21 of the

Revised Code or to the filing of an earlier petition, the United States Supreme Court

recognized a new federal or state right that applies retrospectively to persons in the

petitioner’s situation, and the petition asserts a claim based on that right.

(2) The petitioner shows by clear and convincing evidence that, but for constitutional

error at trial, no reasonable factfinder would have found the petitioner guilty of the

offense of which the petitioner was convicted or, if the claim challenges a sentence of

death that, but for constitutional error at the sentencing hearing, no reasonable

factfinder would have found the petitioner eligible for the death sentence.

Ohio Rev. Code § 2953.23(A). Bedford plainly satisfied the (A)(1)(b) requirement; subsequent to

180 days from the 1984 judgment against him, the United States Supreme Court issued the Atkins

decision holding that the Eighth Amendment prohibits the execution of individuals who are mentally

retarded. The state appellate court concluded that Bedford could not satisfy the (A)(2) component

of demonstrating by clear and convincing evidence that but for constitutional error at his sentencing,

no reasonable factfinder would have found Bedford eligible for the death sentence. Bedford takes

issue with numerous facets of the state appellate court’s conclusion, none of which has a strong or

substantial likelihood of succeeding on the merits.

A major argument that Bedford advances is that he was entitled to a full hearing and process

in order to demonstrate that he can satisfy the “clear and convincing” jurisdictional requirement set

forth in Ohio Rev. Code § 2953.23(A)(2). No such provision is contained in or even suggested by

the statute. And Bedford offers no other persuasive authority in support of this novel argument.

Thus, it does not have a strong or substantial likelihood of succeeding on the merits.

For the same reasons, Bedford’s argument that the state appellate court’s decision deprived

him of due process by treating him differently than other similarly situated death row inmates who

have filed Atkins’ petitions does not have a strong or substantial likelihood of succeeding on the

merits. Bedford suggests that the state appellate court’s application of § 2953.23(A)(2)’s “clear and

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convincing” standard to him was “unprecedented” and “unexpected.” Bedford’s argument is curious.

The state appellate court followed Lott to the letter. As noted above, Lott stated in clear,

unambiguous, and simple language that “[p]etitions filed more than 180 days after this decision must

meet the statutory standards for untimely and successive petitions for postconviction relief.” Lott,

97 Ohio St. 3d at 307. Bedford will not be heard to argue that the state appellate court’s application

of those statutory standards to his untimely Atkins petition was unprecedented, novel, or

unwarranted. Bedford’s argument characterizing as “unprecedented” the state appellate court’s

invocation of §2953.23(A)(2)’s “clear and convincing” standard does not have a strong or substantial

likelihood of succeeding on the merits.

Similarly, Bedford asserts that the “treatment of other Ohio death-row inmates who have filed

Atkins petitions since Lott differs markedly from the Ohio appellate court’s treatment of Mr. Bedford

in its April 29, 2011 decision.” (Doc. 16, at 9). Bedford’s argument pushes the limits of credulity,

to say nothing of not possessing a strong or substantial likelihood of succeeding on the merits. The

very example provided by Bedford defeats his argument. Bedford points to State v. Hughbanks,

where the state appellate court held that Hughbanks was entitled to a hearing, discovery, and experts

to present his Atkins claim, even in the face of a pre-Atkins finding by the Ohio Supreme Court that

there was no evidence of mental retardation and evidence that Hughbanks registered a full-scale IQ

score of 82. Bedford’s reliance on Hughbanks is entirely misplaced because Bedford is not similarly

situated to Hughbanks. Hughbanks filed a timely Atkins petition. Bedford did not. That the state

appellate court concluded that Hughbanks was entitled to a hearing, discovery, and experts to prove

his Atkins claim when he, according to Bedford, made far less of a showing of mental retardation than

Bedford, is wholly irrelevant to Bedford’s arguments here. Hughbanks received different

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consideration because he was in a different procedural posture–a timely one. Thus, Bedford’s

argument that the state appellate court violated his due process rights by treating him differently than

other similarly situated death row inmates pursuing Atkins claims does not have a strong or

substantial likelihood of succeeding on the merits.

In a related argument, Bedford suggested at the hearing that there is a difference between an

Atkins postconviction petition and a “regular” postconviction petition for purposes of the manner in

which the petitions are to be adjudicated. Neither Atkins, nor Lott, nor any authority of which this

Court is aware supports that contention. To this point, Bedford’s reliance on Panetti v. Quarterman,

551 U.S. 930, 948, 950 (2007), and Rivera v. Quarterman, 505 F.3d 349 (5th Cir. 2007), is

misplaced. Those cases were in too different a procedural and legal posture–namely, habeas

corpus–to support Bedford’s argument that Atkins or Lott conferred a substantial procedural due

process right to death row inmates claiming mental retardation from which it would follow that an

Atkins postconviction petition is entitled to different treatment under state rules than a “regular”

postconviction petition. That being so, Bedford’s argument does not have a strong or substantial

likelihood of succeeding on the merits.

To the extent that Bedford is challenging the constitutional adequacy of Lott, his argument

does not have a strong or substantial likelihood of succeeding on the merits because Lott has been

discussed with apparent approval by the United States Supreme Court and the Sixth Circuit. Cf.

Bobby v. Bies, 129 S.Ct. 2145, 2150 (2009) (characterizing Lott as heeding Atkins’ call to establish

procedural and substantive guidelines for filing mental retardation claims); Murphy v. Ohio, 551 F.3d

485, 505-10 (6th Cir. 2009) (discussing and applying Lott). To the extent that Bedford is challenging

the constitutional adequacy of Ohio Rev. Code § 2953.23(A), either on its face or as the state courts

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applied it to him (or any death row inmate seeking to file an untimely Atkins petition), his argument

does not have a strong or substantial likelihood of succeeding on the merits. The Sixth Circuit has

discussed that statutory provision with apparent approval. See Landrum v. Mitchell, 625 F.3d 905,

919 (6th Cir. 2010) (recognizing that “Ohio law permits second, successive, or untimely petitions only

under limited circumstances.”) (citing Ohio Rev. Code § 2953.23); see also Davie v. Mitchell, 547

F.3d 297, 311 (6th Cir. 2008); Broom v. Mitchell, 441 F.3d 392, 399-401 (6th Cir. 2006).

For the foregoing reasons, and even indulging Bedford every benefit of the doubt, the Court

cannot find that Bedford’s arguments have a strong or substantial likelihood of succeeding on the

merits. This factor militates against granting Bedford a temporary restraining order or preliminary

injunction to stay his May 17, 2011 execution.

2. Irreparable harm

Bedford argues and the Court cannot disagree that the failure to grant a temporary restraining

order and preliminary injunction before he has a chance to attempt to litigate his Atkins-based mental

retardation claim would cause him irreparable harm. Bedford is scheduled to be executed on May

17, 2011. 

3. Harm to others

Bedford argues that allowing him the opportunity to exercise his substantive right not to be

executed if mentally retarded will not result in harm to others. The State has an interest in finality

by enforcing its sentences and is harmed when execution of valid criminal judgments is delayed

without just cause. For that reason, the Supreme Court has consistently upheld the denial of stays

of execution sought in connection with otherwise valid § 1983 actions where there is evidence of

undue delay on the part of the death row inmate. See, e.g., Hill v. McDonough, 547 U.S. 573, 584

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(2006); Nelson v. Campbell, 541 U.S. 637, 649-50 (2004); Gomez v. U.S. Dist. Court for Northern

Dist. of California, 503 U.S. 653, 653-54 (1992) (per curiam).

4. Public interest

Bedford argues that “[t]here is no downside to the public in allowing Mr. Bedford to avail

himself of the procedural safeguards guaranteed to him by the United States and Ohio constitutions

and supreme courts and in fact the public interest is served by upholding these rights.” (Doc. 2, at

6). Although the protection of constitutional rights is always in the best interests of the public, this

Court has not found a violation of constitutional rights here. By his own assertion, Bedford is not

litigating here the substance of his claim that he is mentally retarded and therefore ineligible for the

death penalty. He is asserting only a procedural due process violation for the manner in which the

state courts addressed his petition for postconviction relief, arguments in support of which this Court

has found have no strong or substantial likelihood of succeeding on the merits. Against that

backdrop, the Court likewise finds that the public interest is not served by ordering a stay of

execution for claims that are unlikely to prevail. 

Examining and balancing the four preliminary and permanent injunction factors together, the

Court concludes that the issuance of a temporary restraining order and preliminary injunction is not

warranted in this instance. For the foregoing reasons, the Court DENIES Bedford’s request for a

temporary restraining order and preliminary injunction to stay his May 17, 2011 execution.

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V. CONCLUSION

Based on the foregoing reasons, the Court DENIES the Defendants’ Motion to Dismiss (Doc.

7) and DENIES Bedford’s Motion for Temporary Restraining Order and Preliminary Injunction

(Doc. 2).

The Clerk shall remove Documents 2 and 7 from the Court’s pending motions list.

IT IS SO ORDERED.

 /s/ George C. Smith 

GEORGE C. SMITH, JUDGE

UNITED STATES DISTRICT COURT

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