[JURIST] A judge for the US District Court for the Southern District of Ohio [official website] on Friday denied a motion to dismiss [order text] a challenge to the constitutionality of a second execution attempt filed by death row inmate Romell Broom [JURIST news archive]. The challenge was filed in September following a failed execution attempt, in which officials failed to find a vein to administer the injection over the course of two hours. The challenge, filed as a 42 USC § 1983 [text] action, alleges that the failed attempt and any future attempts would violate the Eighth Amendment prohibition against cruel and unusual punishment, the Fifth Amendment prohibition against double jeopardy, the Sixth Amendment right to counsel and the Fourteenth Amendment requirements of due process and equal protection [Cornell LII backgrounders]. In addressing the state’s motion to dismiss, Judge Gregory Frost found that the claims regarding cruel and unusual punishment, equal protection and right to counsel should be allowed to proceed. In dismissing Broom’s double jeopardy claims, Frost found:

In this instance, “§ 1983 must yield to the more specific federal habeas statute, with its attendant procedural and exhaustion requirements.” The end result is that Plaintiff’s claims “fall within the ‘core’ of habeas corpus and are thus not cognizable when brought pursuant to § 1983.” This means that Plaintiff’s Fifth Amendment and Eighth Amendment no-multiple-attempts challenges are not properly before this Court. Defendants concede that habeas presents the proper vehicle to address the constitutional issues arising from the failed execution attempt and Ohio’s intent to try again, and they are correct. The proper mechanism in which to assert both claims is a habeas corpus action and not under § 1983.

Frost also dismissed Broom’s claims that the procedure used in his execution, as well as the revised procedure implemented following his failed execution, were unconstitutional.

In September, Frost delayed [JURIST report] Broom’s execution shortly after the failed attempt. Frost issued the order following claims that the multiple attempts to find a vein during the two-hour procedure constituted cruel and unusual punishment and violated state law [ORC 2949.22 text], which requires lethal injections to “quickly and painlessly cause death.” Earlier that month, the US Court of Appeals for the Sixth Circuit rejected [opinion, PDF] Broom’s challenge to the method of execution on timeliness grounds. The same court denied [opinion text] Broom’s request for habeas relief in 2006. Broom was convicted of the 1984 rape and murder of a 14-year-old girl. Following Broom’s failed execution, Ohio became the first state to adopt a single-drug protocol [JURIST report] following a review of its lethal injection practices in September. The new protocol consists of the intravenous injection of a single anesthetic, and provides for the intramuscular injection of two other drugs if an appropriate vein cannot be found.