Grayson v. Hamm(DEATH PENALTY)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

CAREY DALE GRAYSON, )

)

Plaintiff, )

)

v. ) Case No. 2:24-cv-00376-RAH-KFP

)

JOHN Q. HAMM, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Death penalty litigation is probably the most emotionally charged litigation

that comes before the Court. And because Alabama is one of the few states that

actively enforces the death penalty, that litigation is often filed in the Middle District

of Alabama. Lately, this District has become ground zero for challenges to a new

method of execution—Nitrogen Hypoxia—which the State of Alabama recently

sanctioned and has touted as a more humane method of execution. If that method

proves successful, it likely could become the default method in Alabama and other

states.

At present, there have been five Nitrogen Hypoxia executions1 in Alabama.

Lawsuits were filed in three. The condemned and their counsel have aggressively

opposed the execution method with everything they might raise, ranging from

complaints about the nitrogen gas, the number of pulse oximeters present in the

chamber, the medical monitor leads, the mask, the qualifications of individuals

1 The individuals executed by Nitrogen Hypoxia include Kenneth Smith, Alan Eugene Miller, Cary

Dale Grayson, Demetrius Frazier, and Gregory Hunt.

involved in the execution, sedatives, vomiting, edema, and undiagnosed airway

obstructions, to the time period to unconsciousness. The purpose is obvious.

Other than challenging the Nitrogen Hypoxia methodology under the Eighth

Amendment, the condemned and their counsel often come to the district courts to

micromanage aspects of the execution process, ranging from access to pens, paper,

watches, and phones, to—as the current motion presents—emergency requests for

the rationale behind a medical decision; all of which have little to do with the Eighth

Amendment.

Pending before the Court is the Defendants’ Motion for Attorneys’ Fees (doc.

114) which invokes 28 U.S.C. § 1927 and seeks attorneys’ fees and costs in

connection with the Federal Defenders for the Middle District of Alabama’s2 last-

minute filing of an emergency motion that was voluntarily withdrawn less than

twenty-four hours later. According to the Defendants, “Grayson filed an emergency

motion at 6:58 p.m. on November 20, the night before his execution, claiming that

Defendants had rejected his request for appropriate medical care (‘a therapeutic

sedative’) without reason, thus betraying their representations to this Court and

leaving a sick inmate to suffer.” (Doc. 114 at 1 (citation omitted).) They further

state that “[n]ot only was the basis for Grayson’s motion false, but all that happened

around 1:00 p.m., yet Grayson’s counsel waited six hours, until after the close of

business, to act.” (Id.) “Counsel made no attempt to confer, only emailing an ADOC

attorney and counsel for Defendants at 6:57 p.m.—one minute before creating a

judicial emergency. As a result, Defendants and their counsel had to scramble

overnight and in the early morning to uncover the facts, file a response, and prepare

2 The Federal Defenders for the Middle District of Alabama (“Federal Defenders”) is a private

corporation funded by a grant from the federal judiciary. The Federal Defenders regularly initiate

litigation before scheduled executions. And with respect to Grayson, they sued on his behalf twice.

for a conference with this Court while the case was pending in the U.S. Supreme

Court and Grayson’s execution was just hours away.” (Id. at 2.)

According to the Defendants, Grayson’s motion was false because 1) Grayson

did visit with and was assessed by medical professionals, including a prison

psychiatrist and nurse; 2) the motion omitted certain salient facts, such as the fact

that the Federal Defenders prompted the medical visit and instructed Grayson to

specifically ask prison medical staff for Midazolam (a drug that Grayson did not

want and would not take); 3) Grayson told the medical staff that he was “good”; 4)

prison medical staff gave Grayson reasons for not prescribing him Midazolam; and

5) Grayson expressed understanding and agreement with that medical decision. As

the Defendants characterize it, “[t]he [Midazolam] request was designed for

litigation, not driven by the client’s ‘medical necessity,’ as the motion presented it”

(id. at 15) (citation omitted) and was “calculated not only to disparage Defendants

but also to provoke a reaction from the courts” (id. at 17) (citation omitted). That is,

it was designed to threaten the State’s ability to carry out Grayson’s death sentence.

The Defendants seek sanctions under 28 U.S.C. § 1927.

The Court has read the parties’ submissions and has conducted a hearing. For

the reasons that follow, the motion will be denied. That notwithstanding, the Court

admonishes all counsel and reminds them of their obligations as Officers of the

Court to always conduct themselves according to the highest standards of the legal

profession, even in the face of high stakes, emotionally charged litigation such as

this.

LEGAL STANDARD

Under § 1927, any attorney who so multiplies the proceedings in any case

unreasonably and vexatiously may be required by the court to satisfy personally the

excess costs, expenses, and attorneys’ fees reasonably incurred because of such

conduct. A district court’s authority to issue sanctions for attorney misconduct under

§ 1927 is either broader than or equally as broad as the district court’s authority to

issue a sanctions order under its inherent powers. See Cordoba v. Dillard’s, Inc.,

419 F.3d 1169, 1178 n.6 (11th Cir. 2005).

BACKGROUND

A. Grayson’s Previous Lethal Injection Litigation

To understand the issues presently before the Court, a discussion of Grayson’s

litigation history, with help from the Federal Defenders, involving Alabama’s

execution protocols is necessary.

In 2012, several inmates represented by the Federal Defenders filed suit

against Alabama prison officials over the State’s then-existing lethal injection

protocol. See In re Alabama Lethal Injection Protocol Litig., No. 2:12-CV-00316,

2018 WL 3014802 (M.D. Ala. June 15, 2018) [hereinafter Lethal Injection Protocol

Litigation]. Grayson was one of the plaintiffs in that litigation. Through the Federal

Defenders, Grayson claimed the State’s lethal injection protocol constituted cruel

and unusual punishment and thus violated the Eighth Amendment. Grayson also

claimed it was a First Amendment violation for the State to refuse Grayson’s

attorney-witnesses direct and immediate access to and communication with the

courts during his execution. Through counsel, Grayson faulted the protocol’s use of

Midazolam as an anesthetic drug to prevent, what Grayson claimed, intolerable pain

associated with the other drugs used in the protocol. Grayson also alleged that for a

small percentage of people, Midazolam has the opposite effect from sedation in that

it causes agitation, not sedation. On his behalf, the Federal Defenders offered three

alternative methods of execution that passed constitutional muster, one of which was

execution by Nitrogen Hypoxia through the introduction of pure nitrogen via a mask

following the administration of an anxiolytic, such as Midazolam.

The litigation was later dismissed in July 2018 after the State of Alabama

passed a law, see Ala. Code § 15-18-82, making Nitrogen Hypoxia a statutorily

approved method of execution. At the time, the State had not developed a protocol

to conduct such an execution. As such, inmates who elected Nitrogen Hypoxia were

assured of no execution setting in the near future.

B. Nitrogen Hypoxia Protocol and Resulting Lawsuits

The new law gave already-condemned inmates thirty days to elect Nitrogen

Hypoxia. Id. § 15-18-82.1(b)(2). And during that election period, the Federal

Defenders drafted an election form and met with numerous inmates on death row to

assist them in understanding the new law and the form. See Smith v. Dunn, 568 F.

Supp. 3d 1244, 1251 (M.D. Ala. 2021) (discussing the opt-in election form). At

least fifty inmates timely elected Nitrogen Hypoxia, many with help from the

Federal Defenders. Additionally, two inmates who were scheduled for executions

by lethal injection filed lawsuits seeking tardy designations of Nitrogen Hypoxia

through arguments such as lost election forms, see Miller v. Hamm, 640 F. Supp. 3d

1220, 1233 (M.D. Ala. 2022), and non-ADA compliant election forms, see Reeves

v. Dunn, 580 F. Supp. 3d 1060, 1066–67 (M.D. Ala. 2022), aff’d sub nom. Reeves v.

Comm’r, Ala. Dep’t of Corr., 23 F.4th 1308 (11th Cir. 2022), and vacated sub nom.

Hamm v. Reeves, 142 S. Ct. 743 (2022).

C. Grayson’s Nitrogen Hypoxia Case

1. Complaint

On June 10, 2024, the State of Alabama sought a death warrant from the

Alabama Supreme Court as to Grayson. Since Grayson had elected an execution by

Nitrogen Hypoxia, if issued, his execution would be the third execution under

Alabama’s new method. As to the two previous Nitrogen Hypoxia executions, the

press, certain witnesses, and attorneys raised concerns about the duration of the

executions and the condemned inmates’ time-to-unconsciousness.

On June 28, 2024, Grayson, through the Federal Defenders, filed this lawsuit,

challenging the State’s Nitrogen Hypoxia protocol under the Eighth Amendment.3

The Complaint alleged the protocol would cause “conscious suffocation” and

therefore would violate the Eighth Amendment. The Complaint also offered two

allegedly feasible alternatives: (1) a Nitrogen Hypoxia protocol that included a

medical assessment for anxiety and airway obstruction issues and required the use

of Midazolam and Ketamine before the introduction of nitrogen gas to minimize

conscious suffocation, and (2) injection of a fatal amount of Ketamine and Fentanyl.

According to the Complaint, the medical assessment was needed because of possible

anxiety disorders such as “claustrophobia,” and the use of Midazolam and Ketamine

would render the inmate unconscious before the introduction of nitrogen gas. (Doc.

42 at 12.) The Complaint sought to prohibit Grayson’s execution under the State’s

then-existing Nitrogen Hypoxia protocol.

2. The Federal Defenders’ Accusation of Unethical Conduct by

the Attorney General’s Office

Several weeks into the case, in their briefing on their request for a preliminary

injunction, the Federal Defenders accused the Office of the Alabama Attorney

General of unethical conduct. (See doc. 20 at 1 n.1.) The Court instructed the

Federal Defenders to file a formal motion to disqualify if they thought the motion

was warranted. They did so.

On August 28, 2024, the Federal Defenders filed their Motion to Disqualify

Defendant Marshall from Representing His Co-Defendants. (Doc. 38.) In it, the

Federal Defenders accused the Attorney General’s Office of “serious conflict of

3 Grayson later amended his Complaint on August 30, 2024. The term “Complaint” refers to

operative Amended Complaint (doc. 42).

interest and ethical issues” and sought a court order “disqualify[ing] Defendant

Marshall from representing his co-defendants and controlling the representation of

Defendants Hamm and Raybon.” (Id. at 2.) The accusations largely stemmed from

the Office’s involvement in drafting the original Nitrogen Hypoxia protocol, claimed

conflicts between the Office and the Alabama Department of Corrections’

(“ADOC”) in-house counsel, and the possible witness status of several attorneys

from the Office who had previously testified about their use and testing of the type

of mask called for in the Nitrogen Hypoxia protocol. The Federal Defenders’ motion

asserted that the Attorney General’s Office was conflicted because the Attorney

General could not abide by the loyalty and wishes of his clients (Terry Raybon,

Warden at Holman Correctional Facility, and John Hamm, Commissioner of the

ADOC) in violation of Rule 1.2 of the Alabama Rules of Professional Conduct. (See

id. at 12–13.)

Needless to say, the Federal Defenders’ motion was vigorously opposed. On

September 18, 2024, the Court denied the Federal Defenders’ motion. (See doc. 61.)

The Court had hoped that the accusations of unethical conduct in the case were over.

They were not.

3. Designation of Spiritual Advisors

In 2020, the issue of the presence of spiritual advisors in the execution

chamber came to a head. Specific to Alabama, on February 11, 2021, the United

States Supreme Court refused to vacate an Eleventh Circuit order, see Smith v.

Comm’r, Ala. Dep’t of Corr., 844 F. App’x 286 (11th Cir. 2021), that required

ADOC to allow the presence of Willie B. Smith, III’s pastor in the execution

chamber with him.4 See Dunn v. Smith, 141 S. Ct. 725 (2021). Following that

4 Smith’s vehicle to have his pastor in the death chamber came by way of the Religious Land Use

and Institutionalized Person Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., and the Alabama

Religious Freedom Amendment to the Alabama Constitution, Ala. Const. art. I, § 3.01 (ARFA).

decision, ADOC modified its execution protocol to allow “spiritual advisors” in the

execution chamber, but it did not allow any other witnesses or attorneys in the

chamber. Since that time, spiritual advisors in the form of pastors and imams have

been allowed in the chamber.

After Grayson’s lawsuit was filed, on August 19, 2024, Kacey Keeton, an

attorney with the Federal Defenders and one of Grayson’s attorneys, sent a letter to

ADOC’s general counsel stating that “Mr. Grayson would like to have counsel with

him up until the time of execution in lieu of a spiritual advisor.” (Doc. 136-1 at 9

(emphasis added).) Keeton also stated in her letter that counsel would like “to wear

a watch to observe the execution,” and to bring a pen, paper, and activated cell phone

with her. (Id.)

The next day, ADOC’s general counsel responded by stating that Grayson

could not have an attorney present with him in lieu of a spiritual advisor but counsel

could attend the execution as a “witness” in the witness room, that there already was

a clock, and that a pen and paper would be available provided there was a timely

request but that no phones would be permitted. (Doc. 136-1 at 11.) In other words,

Keeton’s request to be present inside the chamber and to document the execution as

Grayson’s attorney was rejected.

Keeton, however, was not deterred. Ten days later, on August 29, 2024,

Keeton sent a letter to the ADOC warden in charge of Grayson’s execution. (See

doc. 84-24 at 1.) Despite being rebuffed in her initial efforts to attend the execution

in the chamber as an attorney in lieu of a spiritual advisor with a pen, paper, watch

and cell phone in hand, Keeton in her letter stated that Grayson was now designating

Keeton and fellow Federal Defender attorney Matt Schultz as his “designated

spiritual advisor” and “designated alternate.” (Id. at 1–2.) ADOC did not challenge

the designations.

4. Preliminary Injunction Motion

On August 20, 2024, the Federal Defenders filed a Motion for Preliminary

Injunction. (See doc. 30.) In their motion, the Federal Defenders sought to enjoin

Grayson’s looming execution under the current Nitrogen Hypoxia protocol. The

motion focused upon the claimed eye-witness observations from the recent Nitrogen

Hypoxia execution of Kenneth Smith.5 The Court set the motion for a hearing on

October 8, 2024.

In connection with his preliminary injunction request, Grayson sat for his

deposition on October 2, 2024, with two attorneys from the Federal Defenders

(Spencer Hahn and Matt Schultz) present and was asked about Midazolam, his

lawsuit, and Nitrogen Hypoxia. Concerning Midazolam, Grayson testified that “No,

I do not want midazolam,” that it is a “weak” and “half-assed” drug, and “that’s not

a drug I want.”6 (Doc. 81-1 at 8; Doc. 84-53 at 44.) Then, when asked about his

complaint allegations that called for an oral dose of Midazolam followed by an

injection of Ketamine, Grayson said, “This does not sound like my case. This sounds

like Miller . . . . [W]e never discussed that. That is Miller.”7 (Doc. 81-1 at 12; Doc.

84-53 at 64.)

5 The Federal Defenders also filed a motion requesting permission to videotape the upcoming

Nitrogen Hypoxia execution of Alan Miller. (See doc. 50.) The request was denied.

6 Grayson’s testimony was somewhat similar to the allegations the Federal Defenders made in the

Reeves litigation, where allegations were made that there is a high likelihood that Midazolam is

incapable of reliably causing the sustained anesthetic state of sufficient depth necessary to prevent

an inmate from experiencing intolerable pain associated with the second and third drugs, and that

because of the way it functions, Midazolam could sedate an individual to the point of being

incapable of communicating that he is in pain while doing nothing to prevent the experience of

that pain, and that a certain percentage of people become agitated, not sedated, because of it.

Complaint at 3–4, Reeves v. Dunn, 580 F. Supp. 3d 1060 (M.D. Ala. 2022), aff’d sub nom. Reeves

v. Comm’r, Ala. Dep’t of Corr., 23 F.4th 1308 (11th Cir. 2022), and vacated sub nom. Hamm v.

Reeves, 142 S. Ct. 743 (2022).

7 Kenneth Smith also had sued over the State’s Nitrogen Hypoxia protocol. See Smith v. Hamm,

No. 2:23-cv-656-RAH, 2024 WL 116303 (M.D. Ala. Jan. 10, 2024).

Concerning Nitrogen Hypoxia as an alternative method of execution that was

advanced by the Federal Defenders on his behalf in the lethal injection litigation

from years before, Grayson said the following about his and the Federal Defenders’

“plan”:

We had a plan. Our plan was to cost as much money, make it as easy

as it can be done, as expensive as it can be done, and as shockingly as

it could be done. So I went looking for shocking. And I found nitrous

gas. John8 went looking for something. And that’s what we came up

with. It was a stalling tactic. But if it didn’t stall well enough I didn’t

suffer at the end. They got me.

(Doc. 81-1 at 14–15; Doc. 84-53 at 75–76.)

At the preliminary injunction hearing, significant argument ensued on the use

of a sedative and other drugs before the introduction of nitrogen gas. The drug

discussed the most was Midazolam,9 which was the drug referenced in the

Complaint’s alternative Nitrogen Hypoxia execution protocol, the drug that Grayson

challenged in his previous lethal injection litigation, and the drug that Grayson said

he did not want and would not take.10 Testimony was provided about the risks

associated with Midazolam, such as suppressed breathing, airway obstruction,

edema, and nausea, that could complicate the introduction of nitrogen gas, as well

as the mechanisms in which it would be introduced, especially in the context of an

inmate who was unwilling to ingest a pill. (See, e.g., doc. 89 at 125.) Further, there

was discussion about the many lawsuits filed over execution protocols that included

the use of Midazolam.

8 “John” was John Palombi with the Federal Defenders.

9 Midazolam is a benzodiazepine which can act like a muscle relaxant.

10 Midazolam was mentioned at least 136 times during the preliminary injunction hearing, and

even Grayson’s counsel stated that “midazolam and Mr. Grayson have a history.” (Doc. 87 at 17.)

All medical experts acknowledged the fact that medical ethics precluded

licensed doctors from aiding an execution, thereby making it difficult for any

medical doctor to prescribe a drug in aid of an execution. Because of this position,

the Court queried ADOC’s Deputy Commissioner of Health Services about whether

a medical doctor could prescribe a sedative if therapeutically appropriate; that is, if

it was for therapeutic purposes and not in aid of the execution. That witness

responded that it was possible. (See doc. 87 at 116–17.)

On November 6, 2024, the Court issued its opinion that denied Grayson’s

preliminary injunction motion. See Grayson v. Hamm, No. 2:24-cv-00376, 2024

WL 4701875 (M.D. Ala. Nov. 6, 2024). In its opinion, the Court referenced the

possibility that Grayson could seek a sedative or anxiolytic medication for

therapeutic reasons and not in aid of an execution. Id. at *4, *20. On appeal, in its

November 18, 2024, opinion, the Eleventh Circuit also referenced this same

possibility. See Grayson v. Comm’r, Ala. Dep’t of Corrs., 121 F.4th 894, 899 (11th

Cir. 2024).

On November 19, 2024, the Federal Defenders file a certiorari petition with

the United States Supreme Court. The petition was denied at approximately 11:00

a.m. on November 21, 2024, thereby clearing the way for the execution to go forward

later that day. Grayson was executed early that evening via Nitrogen Hypoxia.

5. The Events of November 20, 2024

On November 20, 2024––the day before the execution—Grayson was visited

by several employees from the Federal Defender’s office, including Robin Konrad

(attorney), Christine Freeman (attorney), Kacee Keeton (attorney), Spencer Hahn

(attorney), Leslie Smith (attorney), Eric Brown (attorney), John Palombi (attorney),

Matt Schultz (attorney), Nancy Palombi (paralegal), Brandi Janus (paralegal), and

Miriam Bankston (paralegal) beginning at approximately 8:40 a.m. that day. (See

doc. 114-1 at 8–9.) Important to the events at issue in the Defendants’ sanctions

motion are the actions of Ms. Keeton and Mr. Hahn that day.

At approximately 12:45 p.m., Ashley Wall Andrews, a nurse at Holman

Correctional Facility, approached Grayson in the visitation yard window. (Doc. 114-

3 at 2–3.) Nurse Andrews reminded Grayson that he had a telehealth appointment

scheduled with Dr. Bradley Edmonds, a prison psychiatrist, that afternoon. (Id. at

3; Doc. 108-1 at 1; see doc. 114-2 at 2.) Grayson responded that he was “good” and

did not need to see Dr. Edmonds. (Doc. 114-3 at 3.) This was not the first time that

Grayson wanted to cancel a medical visit, as Grayson had previously refused visits

on November 13 and November 16. (Doc. 114-1 at 18; Doc. 114-2 at 4.) Nurse

Andrews then requested that Grayson sign a refusal form. (Doc. 114-3 at 3.)

Keeton then approached, asked Grayson about the refusal form, and told

Grayson that he needed to attend the telehealth visit and not refuse. (Doc. 108 at 1–

2.) Grayson changed course and said to Nurse Andrews that he did not want to

refuse and wanted to see Dr. Edmonds. (Id.) Afterwards, Nurse Andrews scheduled

the telehealth visit with Dr. Edmonds for around 1:00 p.m. (Doc. 114-1 at 19.)

Grayson attended the telehealth visit with Nurse Andrews and Dr. Edmonds

at approximately 1:00 p.m. (Id.) Keeton was not present, but she assumed that

Grayson was meeting with a doctor. (See doc. 120-1 at 5.) At the outset of the visit,

Grayson handed Nurse Andrews a handwritten note11 that Grayson said was from

his attorney. (Doc. 108-1 at 2; Doc. 114-3 at 4.) According to Nurse Andrews, the

note made a specific request for Midazolam––“You need midazolam.” (Doc. 114-3

at 4; see doc. 108-1 at 2.) Grayson held up the note and stated that his attorneys had

asked him to request Midazolam. (Doc. 114-3 at 4.) Keeton somewhat disputes this

testimony in that she acknowledges writing Midazolam on the note but states that

11 Unfortunately, the note cannot be located and has not been presented to the Court for inspection.

she struck it out when Grayson told her that he did not want Midazolam. (Doc. 142

at 17, 54.)

According to Dr. Edmonds, he already was familiar with Grayson, as he had

been managing Grayson’s medications for months. (See doc. 114-2 at 3–4.) During

the telehealth visit, he spoke with and assessed Grayson. (Id. at 4; Doc. 114-1 at

19.) Grayson told him that he only came to speak with him because his attorney

suggested it and that his attorney wanted him to ask for Midazolam. (Doc. 114-2 at

5.) Grayson also told Dr. Edmonds that he wanted a different medication for his

anxiety but that if Midazolam was prescribed, he would not take it. (Doc. 114-1 at

18.) Dr. Edmonds responded that he was unwilling to add another medication, let

alone Midazolam, to Grayson’s current medication regimen (Xanax) at that point.

(Id.) Grayson voiced his understanding and left. (Id.)

Nurse Andrews had a similar recollection of the interaction with Grayson.

(Doc. 108-1 at 1–2; Doc. 114-3 at 3.) According to Nurse Andrews, Dr. Edmonds

told Grayson he had never prescribed Midazolam (i.e., Versed) before and that if he

prescribed it to Grayson, he feared that Grayson stood a chance of having an adverse

reaction because he already was on a high dose of Xanax. (Doc. 108-1 at 2; Doc.

114-2 at 5.) Grayson then said that he was “good” and that his lawyer wanted him

to ask, but that if they prescribed it, he would not take it. (Doc. 108-1 at 2; Doc.

114-2 at 4; 114-3 at 4.) Grayson then thanked Dr. Edmonds and left, and the

telehealth visit was terminated. (Doc. 108-1 at 2; Doc. 114-3 at 4.)

Grayson returned to the visitation yard where he again visited with the Federal

Defenders. (Doc. 114-1 at 10.) Later that afternoon, Brown, Freeman, Smith,

Bankston, and Hahn left the prison; Keeton remained with Grayson for a while

longer. (Id.)

Around 4:00 p.m., Keeton drafted a Sick Call Request for Grayson. (Id. at

45.) In the request, Keeton wrote that Grayson struggled with “claustrophobia,” was

suffering “significantly higher anxiety,” and therefore wanted a “sedative” for the

execution tomorrow “in addition to [his] Xanax prescription.”12 (Id. at 17, 45.)

Grayson gave the request to Nurse Andrews when she passed by the visitation yard.

(Doc. 114-3 at 5.)

Nurse Andrews gave the request to Nurse Elaine Champion in the health care

unit and advised her that Grayson had previously requested a sedative, particularly

Midazolam, earlier in the day from Dr. Edmonds and that Dr. Edmonds had denied

the request. (Id.) The request was processed by Nurse Hendricks, who completed

an inmate body chart, intake form, and made a mental health referral to Dr. David

Estep. (Doc. 114-1 at 42–43.) Nurse Hendricks also noted that Grayson said that

his attorney told him to ask for Midazolam. (Id. at 43.)

Nurse Hendricks then contacted Dr. Estep. (See doc. 114-1 at 17, 44.)

According to Dr. Edmonds, he spoke with Dr. Estep that afternoon about Grayson’s

Sick Call Request and told him that Grayson already was prescribed an appropriate

dose of Xanax, that he did not want to create an adverse event, and that he could not

prescribe a medication that was not therapeutically warranted. (Doc. 114-2 at 5.)

As such, Grayson was not given any new prescriptions on top of what he already

was taking.

6. The Emergency Motion

At some point later that day, Keeton and Hahn spoke over the phone during

which they discussed Grayson’s two medical visits and that Grayson, according to

Keeton, had approved the filing of an emergency motion on his behalf.

12 Until Keeton wrote it in the Sick Call Request, there had been no previous assertion in the case

or in any medical record that Grayson suffered from “claustrophobia,” not even at the preliminary

injunction hearing when the Federal Defenders advanced a host of reasons as to why Grayson’s

execution could not go forward.

At 6:57 p.m., while Grayson’s appeal remained before the United States

Supreme Court and after Hahn returned to the Federal Defenders’ office in

Montgomery, Hahn emailed ADOC’s legal counsel. In his email, Hahn stated that

at 1:00 p.m. that day Grayson had a telehealth appointment with the prison health

provider for his “severe and increasing anxiety and distress about his execution by

nitrogen hypoxia and asked if a sedative could be provided prior to his execution.”

(Doc. 114-4 at 76.) Hahn added that “[t]he provider made no medical assessment,

but simply told him it was ‘too late’ to make such a request.” (Id. (emphasis added).)

Hahn then detailed that Grayson had also submitted a sick call slip to prison health

professionals about his increasing distress and had requested a medical assessment

of his need for a sedative before his execution because “his Xanax [wa]s no longer

providing relief.” (Id. at 76.) Hahn also stated that Grayson received a physical

exam at approximately 4:30 p.m. but was told that he would be referred back to the

mental health provider to address his request for a sedative. (Id. at 76–77.) Hahn

closed by stating, “We do not have time to wait, and I am filing an emergency motion

in the District Court case to ensure this is resolved.” (Id. at 77.)

Almost simultaneously, at 6:57 p.m., Hahn, with the approval of Christine

Freeman, Executive Director of the Federal Defenders, filed what he styled as an

Emergency Motion for Order Requiring Defendants to Provide a Reasoned Decision

on Mr. Grayson’s Request for a Therapeutic Sedative Prior to His Execution (doc.

105). Although the motion contained the electronic signatures of Palombi, Hahn,

Brown, Keeton, and Schultz, of that group only Hahn saw it beforehand because he

was the one who drafted it. In the motion, Hahn stated that because time was of the

essence, the motion was being filed immediately without having heard back from

ADOC’s counsel, though he had emailed ADOC only the minute prior. In the

motion, Hahn stated the following concerning that day’s events:

At approximately 1:00 p.m. on November 20, 2024, Mr. Grayson had

a telehealth appointment with the prison mental health care provider.

During that appointment, Mr. Grayson expressed his severe and

increasing anxiety and distress about his execution by nitrogen hypoxia

and asked if a sedative could be provided prior to his execution. The

provider made no medical assessment, but simply told him it was

“too late” to make such a request.

Mr. Grayson then submitted a “sick call” slip to prison health officials

noting his increasing distress about his pending execution by nitrogen

hypoxia and requesting a medical assessment of his need for a sedative

before his execution. He noted his Xanax is no longer providing relief

from the increasing anxiety he feels about his execution. He received

a physical exam shortly after 4:30 p.m. and was told he would be

referred to the prison mental health provider to address his request for

a sedative.

Given the prison mental health provider has already told him it is “too

late” to receive a medical determination of his need for a sedative

before his execution, this amounts to a non-denial denial by prison

health and mental health officials.

Before this Court, Defendants represented—through Deborah Crook of

ADOC Health Services and in argument—that a condemned prisoner

could receive a sedative via prison health services if it was

therapeutically appropriate before an execution. This Court relied on

that representation and testimony in denying a preliminary injunction.

Mr. Grayson is in a no man’s land—having been shuffled between

prison health services and prison mental health services—with no

medical assessment of his request having been made. He has, instead,

been told by prison health services that prison mental health services

will address his issue and has been told by prison mental health services

that it is “too late” for any sedative regardless of medical necessity.

For the foregoing reasons, Mr. Grayson respectfully requests this Court

issue an order directing Defendants to provide a reasoned decision on

his request for a therapeutic sedative. If the decision is to deny the

sedative, Mr. Grayson reserves the right to file a motion for preliminary

injunction requiring prison health officials to provide a therapeutic

sedative before his execution.

(Doc. 105 at 1–3 (emphasis added).)

7. The Defendants’ Response

The following morning at 7:10 a.m.––the day of the scheduled execution and

while Grayson’s appeal to the Supreme Court remained pending—the Court issued

a text order requiring the Defendants to show cause by 10:30 a.m. as to why the

emergency motion should not be granted. (Doc. 106.) The Court also set a

telephonic hearing for 11:30 a.m. (Doc. 107.)

At 9:36 a.m., counsel for the Defendants emailed Hahn about the statements

in his emergency motion. (Doc. 114-1 at 79.) In the email, counsel attached the

nurse’s summary of events from the day before concerning her interaction with

Grayson and stated that Hahn’s motion “does not provide a complete and correct

picture to the court and the grounds of your motion are frivolous at best. We

encourage you to withdraw the motion immediately.” (Id.)

Hahn responded two minutes later that he would review the email with his

team. (Id.) Then, two minutes after that, Hahn emailed counsel again, stating that

“We’ll be moving to withdraw the motion.” (Id. at 78.) Hahn also emailed the court

deputy stating that “[i]n light of new information received from counsel for

Defendants, we will be filing a motion to withdraw our emergency motion.” (Doc.

120-4 at 3.) Neither Hahn nor anyone from the Federal Defenders consulted with

Grayson before the emergency motion was withdrawn.

At 10:16 a.m., Hahn filed a motion to withdraw the emergency motion. (Doc.

109.) In it, Hahn stated that “[g]iven the information received from counsel for

Defendants this morning and what appears likely to be a factual dispute that cannot

be resolved on short notice,” he was withdrawing the emergency motion. (Id. at 1.)

Based on Hahn’s filing, the Court canceled the hearing. Again, Grayson was not

consulted; although, according to Keeton, Grayson, who had been “crying,”

“begging,” “yelling,” and suffering from severe anxiety, had purportedly approved

the emergency motion the day before. (Doc. 120-1 at 5.)

Later that day, Dr. Edmonds adjusted Grayson’s existing Xanax dosage before

the looming execution. (Doc. 114-2 at 6.) The Supreme Court also denied

Grayson’s certiorari request, and the execution went forward at approximately 6:00

p.m. Grayson was pronounced dead minutes later.

On December 16, 2024, the Defendants filed their Motion for Attorneys’ Fees.

(Doc. 114.) An in-person hearing was held on April 16, 2025, during which the

Court heard argument from counsel, including Hahn and Keeton.13

DISCUSSION

A. 28 U.S.C. § 1927

To begin, the Defendants invoke 28 U.S.C. § 1927 as the basis for their

motion, not Rule 11 or the Court’s inherent powers. In pertinent part, § 1927

provides as follows:

Any attorney . . . who so multiplies the proceedings in any case

unreasonably and vexatiously may be required by the court to satisfy

personally the excess costs, expenses, and attorneys’ fees reasonably

incurred because of such conduct.

28 U.S.C. § 1927.

Because § 1927 is penal in nature, it must be strictly construed. Peterson v.

BMI Refractories, 124 F.3d 1386, 1395 (11th Cir. 1997). To obtain a sanctions

award under § 1927, the moving party must show that “(1) an attorney . . . engage[d]

in unreasonable and vexatious conduct; (2) such unreasonable and vexatious conduct

. . . multipl[ied] the proceedings; and (3) the amount of the sanction cannot exceed

the costs occasioned by the objectionable conduct.” Norelus v. Denny’s, Inc., 628

13 Although Palombi was the first signatory on the emergency motion, he was excused from

attending the hearing due to health reasons. He has since passed away.

F.3d 1270, 1281 (11th Cir. 2010) (citation and internal quotation marks omitted).

As the Eleventh Circuit has explained, “[a]n attorney multiplies the proceedings

unreasonably and vexatiously ‘only when the attorney’s conduct is so egregious that

it is tantamount to bad faith.’” Peer v. Lewis, 606 F.3d 1306, 1314 (11th Cir. 2010)

(quoting Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir.

2007)). This standard “is satisfied when an attorney knowingly or recklessly pursues

a frivolous claim.” Id. (citation omitted). In this regard, “[t]he statute imposes a

‘high standard’ that requires the moving party to show that the other side engaged in

behavior that ‘grossly deviates from reasonable conduct.’” Hyde v. Irish, 962 F.3d

1306, 1310 (11th Cir. 2020) (quoting Amlong, 500 F.3d at 1240, 1242). Section

1927 “is not a ‘catch-all’ provision for sanctioning objectionable conduct by

counsel.” Schwartz v. Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003)

(citation omitted); see also Amlong, 500 F.3d at 1242.

Whether bad-faith conduct is sanctionable under § 1927 is determined by an

objective standard—the attorney’s subjective intent has no bearing on the analysis.

Amlong, 500 F.3d at 1239. In other words, the court “must compare the attorney’s

conduct against the conduct of a ‘reasonable’ attorney and make a judgment about

whether the conduct was [objectively] acceptable.” Id. at 1239–40. “‘Bad faith’ is

the touchstone. Section 1927 is not about mere negligence. A determination of bad

faith is warranted where an attorney knowingly or recklessly pursues a frivolous

claim or engages in litigation tactics that needlessly obstruct the litigation of non-

frivolous claims.” Schwartz, 341 F.3d at 1225 (citations omitted).

“Reckless” conduct is sufficient to justify sanctions under § 1927. Norelus,

628 F.3d at 1291 (citation omitted). Reckless conduct simply means conduct that

grossly deviates from reasonable conduct. See Schwartz, 341 F.3d at 1227

(describing recklessness as “a gross deviation from conduct that might be reasonable

in the circumstances”); W. Page Keeton et al., Prosser and Keeton on the Law of

Torts § 34 (5th ed. 1984) (stating that although the term “recklessness” seems to

suggest a certain state of mind, recklessness usually “can be proved only by the

conduct and the circumstances,” and “an objective standard must of necessity in

practice be applied”); Reckless, Black’s Law Dictionary (12th ed. 2024) (“Reckless

conduct is . . . a gross deviation from what a reasonable person would do.”). Under

the objective test, a district court may not excuse counsel’s reckless conduct because

she acted “with an empty head and a pure heart.” Braley v. Campbell, 832 F.2d

1504, 1512 (10th Cir. 1987) (internal quotation marks omitted) (quoting McCandless

v. Great Atl. & Pac. Tea Co., 697 F.2d 198, 200 (7th Cir. 1983)).

When scrutinizing counsel’s conduct after-the-fact and contemplating the

imposition of resulting sanctions, courts are expected to be mindful that they should

not punish counsel under § 1927 merely for zealous advocacy or for being on the

losing side of a case. Accordingly, in evaluating litigation conduct following the

resolution of a case, the Eleventh Circuit has advised courts to refrain from:

engag[ing] in post hoc reasoning by concluding that, because a plaintiff

did not ultimately prevail, his action[s] must have been unreasonable or

without foundation. This kind of hindsight logic could discourage all

but the most airtight claims, for seldom can a prospective plaintiff be

sure of ultimate success. No matter how honest one’s belief . . . [and]

no matter how meritorious one’s claim may appear at the outset, the

course of litigation is rarely predictable. Decisive facts may not emerge

until discovery or trial. The law may change or clarify in the midst of

litigation. Even when the law or the facts appear questionable or

unfavorable at the outset, a party may have an entirely reasonable

ground for bringing suit.

Cordoba, 419 F.3d at 1181–82 (emphasis added) (quoting Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 421–22 (1978)). In the same vein, it is judicious for

courts to remember that “§ 1927 does not distinguish between winners and losers”

and “is indifferent to the equities of a dispute and to the values advanced by the

substantive law.” Roadway Exp., Inc. v. Piper, 447 U.S. 752, 762 (1980).

If an attorney’s misconduct meets the high standard of § 1927, a district court

may order the attorney to pay the “costs, expenses, and attorneys’ fees reasonably

incurred” because of the attorney’s misconduct—that is, the excess costs that the

attorney’s multiplication of proceedings has added to the cost of the litigation. 28

U.S.C. § 1927; Peterson, 124 F.3d at 1396 (explaining that sanctions under § 1927

“must bear a financial nexus to the excess proceedings”).

B. The Federal Defenders’ Conduct

As the Defendants characterize it, “[t]he [Midazolam] request was designed

for litigation, not driven by the client’s ‘medical necessity,’ as the motion presented

it,” (doc. 114 at 15), and was “calculated not only to disparage Defendants but also

to provoke a reaction from the courts” especially given the last-minute, after-hours

nature of the filing over an issue known for hours (id. at 17). That is, it was designed

to threaten the State’s ability to carry out Grayson’s death sentence, like the last-

minute filings of the attorneys in the recent Price14 litigation. In other words, aside

from the claimed exigency of the motion manufactured by the Federal Defenders’

intentional delay in filing it, the emergency motion contained numerous false and

incomplete statements, the purpose of which was to manufacture a false narrative

and have this Court or the Eleventh Circuit revisit the grounds for previously

denying Grayson’s preliminary injunction request.

The Federal Defenders respond, largely stating that § 1927 is a penal statute;

that the Defendants’ factual assertions are inaccurate; that their conduct was

appropriate, responsible and reasonable15 given the pressures and time exigencies

14 Price v. Dunn, No. 1:19-cv-00057 (S.D. Ala. June 5, 2019).

15 The Federal Defenders also present a declaration from Professor Eric M. Freeman, Esq., who

states that, in his opinion, the actions of the Federal Defenders in filing the emergency motion

were in accordance with the norms and standards applicable to death penalty representation. (See

doc. 136-6.) The Court finds the declaration of little relevance here since it depended on a far too

narrow scope of facts.

associated with the looming execution of their client; that they did not lie to the

Court; that at worst their conduct was a mistake and negligent but not bad faith; that

they should not be punished for their zealous advocacy; that the discussions between

Grayson and Keeton about Midazolam are extraneous and irrelevant to the filing of

the emergency motion itself; and that the Federal Defenders promptly withdrew their

emergency motion when they received new information about Grayson’s medical

visits. They also assert that their emergency motion was successful in that it resulted

in a change of Grayson’s medication protocol on the day of his execution.16

To begin with, the Defendants’ sanctions motion is directed to all of the

attorneys whose names and signatures appear on the emergency motion: Palombi,

Hahn, Brown, Keeton, and Schultz. (See doc. 105.) The parties’ submissions and

the discussions at the hearing confirm that Hahn drafted the emergency motion,

which was reviewed and approved by Federal Defender Executive Director Christine

Freeman, and that the motion was filed, under the signatures of Hahn and Keeton,

after a discussion between Hahn and Keeton about the events involving Grayson and

Keeton at Holman Correctional Facility. As such, the Court finds that consideration

of the sanctions motion should focus on the actions of Hahn and Keeton. While Ms.

Freeman apparently was present at Holman Correctional Facility on November 20

and reviewed and approved the emergency motion before it was filed, the Court

concludes there simply is not enough evidence to find that she acted recklessly or in

bad faith for purposes of § 1927, especially since she did not sign the emergency

motion.

16 In their response, the Federal Defenders discuss issues concerning Grayson’s access to a tablet,

pen, and paper, and then present those issues as evidence of the issues that regularly arise in the

frantic hours before an execution. The Court sees little relevance to the matter at hand. If it is

offered to show that the Federal Defenders had many distractions that day, it does not prove the

point as the Federal Defenders had no less than eleven staff members at Holman Correctional

Facility with Grayson on November 20 including eight attorneys.

The Court will first address Keeton’s conduct. According to Keeton,

Grayson told her on November 20 that, due to increasing anxiety, he wanted to

request a sedative, that Grayson requested her assistance, that Keeton drafted a note

for Grayson to give to prison medical staff and initially suggested Midazolam

because she knew it was available, that Grayson rejected Keeton’s initial suggestion

of Midazolam, and that she then struck out the word Midazolam on the note. She

further states that after attending the mental health appointment, Grayson returned

and told her that medical staff told him that it was “too late” to put him on something

new, and that she and Grayson then decided to take another route by filling out a

formal Sick Call Request. Keeton filled out the Sick Call Request, and then later

that afternoon, Grayson told her that he had seen a nurse for the sick call, and they—

presumably medical staff—told him they would refer the request back to the same

mental health staff who had previously said it was too late. Keeton further states

that later that afternoon, she observed Grayson “crying,” “yelling,” and “begging”

for help because of his increasing anxiety, and therefore she then consulted with

Grayson about filing an emergency motion, obtained his permission to do so, and

then relayed this request and information to Hahn, who drafted and filed the

emergency motion. (Doc. 120-1 at 5–6.)

According to Hahn, when defense counsel emailed him on the morning of

November 21 with the nurse’s summary of the events, this information “was new,

unknown, and previously unavailable to Mr. Grayson’s counsel” and that the

information satisfied the relief they were seeking in terms of a reasoned decision.

(Doc. 120 at 10.) Hahn also states that he realized it would be a disputed factual

issue, and rather than remove the Federal Defenders from their final visits with

Grayson so that they could defend their motion, they withdrew it.

Keeton and Hahn close by saying that “Mr. Grayson’s counsel were operating

in circumstances which necessarily required that they rely upon the client for facts”

and “[t]hat is not sanctionable.” (Id. at 15.)

The Court agrees with the Defendants that, at a minimum, the emergency

motion was misleading and woefully short on very important details that, had they

been presented, would have undermined the characterization the emergency motion

was intended to make. The motion conveyed the narrative that ADOC simply shut

the window on a legitimate medical request from Grayson, without conducting an

examination and without determining whether a sedative was therapeutically

appropriate, thereby calling into doubt ADOC’s previous testimony at the

preliminary junction hearing.

And the Court notes its concerns that the Federal Defenders’ rendition of the

events and the basis for filing the emergency motion—last-minute and after-hours—

contains glaring contradictions and omissions of key facts important to the

emergency relief that the Federal Defenders claimed was necessary.

For starters, Keeton’s testimony about the note contradicts the medical

providers who read the note. The medical providers interpreted Keeton’s note as

specifically requesting Midazolam while Keeton says she struck the word

Midazolam out. Unfortunately, the note—the best evidence of what Keeton wrote

and whether she did strike out Midazolam as she now says—has not been provided.

Omitted in her version of events is a satisfactory explanation for why she would even

write down and suggest Midazolam in the first place. After all, she certainly was

aware of Grayson’s position about the drug and was aware of the significant debate

about the drug at the preliminary injunction hearing where it was offered by the

Federal Defenders as part of an alternative execution protocol. And it easily can be

inferred that Keeton’s suggestion of Midazolam was not for a true therapeutic need

but instead for purposes of challenging the ADOC’s preliminary injunction

testimony. In other words, the evidence suggests there was an ulterior motive at

play, and that it formed the basis for the emergency motion.

On this issue, the Defendants have presented medical records and affidavit

testimony from Nurse Andrews and Dr. Edmonds—two disinterested individuals—

that contradict the emergency motion’s assertion about the lack of a medical

assessment. That testimony shows that Grayson met with nursing staff and initially

declined a telehealth appointment and was about to sign an appointment refusal form

until Keeton intervened to instruct Grayson otherwise; that the handwritten note

Grayson gave to medical staff specifically requested Midazolam; that Grayson did

in fact participate in the telehealth visit with Dr. Edmonds and Nurse Andrews; that

Grayson told Dr. Edmonds and Nurse Andrews that his attorneys (Keeton) told him

to ask for Midazolam; that Grayson was already taking Xanax; that Dr. Edmonds

told Grayson that he was not comfortable prescribing Midazolam on top of what

Grayson was already taking; and that following this telehealth visit, Grayson

returned to the visitors’ yard where he continued to meet with the Federal

Defenders.17 The testimony also shows that Keeton drafted another medical form (a

Sick Call Request) for Grayson that afternoon; that Grayson again saw medical staff;

and that medical staff, including two doctors, discussed Grayson’s medication

requests and decided that no change was necessary given the medication Grayson

was already taking.

Keeton largely does not deny the above facts, claiming ignorance of what

Grayson told medical staff. She does not contest that Grayson told medical staff that

his attorney had instructed him to ask for Midazolam. Nor does she contest that

Grayson in fact was seen by Nurse Andrews and Dr. Edmonds. And she

17 The Federal Defenders argue the Court should only consider the statements in the emergency

motion itself and should ignore Keeton’s interactions with Grayson, Keeton’s note, and Grayson’s

statements to the medical providers, all because they are extraneous. The Court rejects this

proposition, as the actions and communications between Grayson, Keeton, and the medical

providers played a key role in the basis for the emergency motion’s filing, the statements contained

in it, the omissions from it, and the motivations of legal counsel.

acknowledges that she drafted the handwritten note that Grayson showed Nurse

Andrews and Dr. Edmonds. She denies, however, that it specifically requested

Midazolam. She also denies that she told Grayson to ask medical staff for

Midazolam.

As to what Grayson told Keeton about the telehealth visit, Keeton largely

places blame with Grayson, saying that as an attorney, she acted reasonably in

relying upon what Grayson told his attorneys about the telehealth visit. This position

assumes that Grayson told her virtually nothing about the visit, lied about it, or left

out key parts.

It is Keeton’s word against the two medical providers as to what exactly was

said to and by Grayson. And unfortunately, Grayson is not present to testify about

what was said to him, what he told the medical providers, or what he and Keeton

discussed. But there is credibility to the medical providers’ testimony about

Midazolam, given that Keeton acknowledges having written the word Midazolam

on the note that Grayson gave to the medical providers. And Keeton’s testimony is

vague about what Grayson told her about the visit, other than that Grayson told her

that the medical provider said it was “too late.” While the Court recognizes that

Keeton was not actually present at the telehealth visit and therefore does not know

first-hand what was discussed, the surrounding circumstances cast doubt on what the

Federal Defendants claim actually happened.

As to Hahn, he generally does not dispute what Grayson told or showed the

medical providers, or that Keeton told him that Grayson was crying, yelling and

begging and had instructed them to file an emergency motion. Calling it an

“innocent” error and negligence, Hahn responds that he made the statement in the

emergency motion about Grayson not receiving a medical assessment because he

believed the telehealth visit, even to address a psychiatric or mental health issue, did

not constitute such an assessment. In his opinion, Grayson should have had his blood

pressure checked in order to have received a proper medical assessment in response

to Grayson’s medical request for a sedative. Thus, what Grayson did receive from

Dr. Edmonds—their communications during the telehealth visit—did not rise to the

level of a medical assessment for purposes of medical staff properly considering his

request. In other words, according to Hahn, Grayson may have had a psychiatric

assessment, but he did not have a medical one and because he did not have a medical

one, then his requests for a sedative to address his claimed increasing anxiety were

not considered.

This of course has problems too. For example, Hahn’s position acknowledges

that Grayson received a psychiatric assessment by medical staff (Dr. Edmonds) and

that Hahn was aware of it. And Hahn acknowledges that the prescription of a

sedative and anxiolytic falls within the expertise of a psychiatrist. Yet Hahn did not

disclose this fact in his emergency motion, thereby leading to the misleading nature

of the pleading and the relief sought. Instead, the motion represented that Grayson

sought out medical care for a sedative because of his psychiatric-related condition

and that there was no assessment made by the appropriate medical provider for that

request. That was incorrect. In truth, Grayson, at Keeton’s urging, claimed he

needed a telehealth appointment with the prison doctor, Grayson participated in that

telehealth visit with a prison doctor, and Keeton and the Federal Defenders certainly

were aware and knew that he participated in it.

There is another troubling observation about the basis for filing the emergency

motion. Within three minutes of receiving defense counsel’s email on November 21

that contained the nurse’s summary and that demanded Hahn withdraw the motion,

Hahn withdrew the emergency motion. Hahn did not consult Grayson before he did

it. Nor did anyone with the Federal Defenders. One would think that if, on

November 20, Grayson was “crying,” “yelling,” and “begging” for a sedative and

suffering from “several anxiety” and “claustrophobia” so much so that he instructed

the Federal Defenders to file the emergency motion on his behalf, then the Federal

Defenders would at least attempt to consult him before they withdrew it. They did

not. Instead, they withdrew the motion within minutes, and before they were

questioned by the Court about their motion. This suggests the emergency motion

was attorney-driven, not client-driven.

But that is not all. In his motion to withdraw the emergency motion, Hahn

wrote that the Federal Defenders were withdrawing the motion because there were

“factual disputes,” and Grayson’s attorneys thought it was best that they devote the

last hours in the day to visiting with Grayson rather than litigating his emergency

request. This is inconsistent with the exigencies stated in the emergency motion and

the commonsense fact that any attorney filing a motion, especially an emergency

one, would know that it is very likely he or she would be called upon to argue the

motion before the court. As such, the stated grounds for withdrawing the motion

raise their own suspicions.

The Federal Defenders last make a Hail Mary pass and argue that they should

not be sanctioned because Dr. Edmonds did in fact alter Grayson’s Xanax

prescription the day of the execution. From this after-the-fact discovery, they argue

their emergency motion was not frivolous; it was successful because it brought about

the very relief that Grayson was seeking. The problem with this position is two-fold.

First, the change occurred well after the emergency motion was withdrawn. Second,

their emergency motion sought a sedative—the same sedative they were pushing for

in their preliminary injunction motion as part of an alternative execution protocol—

in addition to the Xanax that Grayson already was taking. And this change of course

could only have come after a medical assessment with a prescribing physician at

Holman, which again, was a medical assessment that the emergency motion

represented had not been performed.

All told, the Court finds the Federal Defenders’ after-the-fact narrative

suspect. The record suggests that Grayson’s medical visit in the claimed pursuit of

a sedative (Midazolam) and the resulting emergency motion about the lack of a

medical assessment was manufactured by the Federal Defenders for ulterior reasons,

and not because of the sincere therapeutic need by Grayson or because of improper

conduct by ADOC staff at Holman Correctional Facility.

Unfortunately, two key pieces of evidence are missing that would aid the

Court in fully investigating and assessing the circumstances presented to it via the

Defendants’ sanctions motion —the note and testimony from Grayson. Without that

evidence, the Court cannot say that the Federal Defenders’ conduct (particularly,

Keeton and Hahn), rises to the level of being vexatious and tantamount to bad faith.

Had that evidence been presented and had it confirmed the Defendants’ assertions

of misconduct, the Court’s conclusion very likely would be different. That said,

based on the current record, the Court concludes the filing of the emergency motion,

and the factual premise made in it, was indeed reckless but not so egregious as to be

tantamount to bad faith as required under § 1927.

And even if the Court were to conclude that bad faith exists, that itself is not

enough under § 1927 for a sanctions finding. Section 1927 also requires that the

attorney’s conduct multiply the proceedings. Here, the Federal Defenders filed an

emergency motion at 6:58 p.m. on November 20, notified counsel for the Defendants

that they were withdrawing the motion at 9:40 a.m. on November 21, and then

withdrew the emergency motion at 10:16 a.m., a period of about fourteen hours. The

Court acknowledges that the Federal Defenders promptly withdrew the motion

before the Court held a hearing and after the Defendants made their withdrawal

demand. Under these unique facts, the Court concludes that the Federal Defenders

did not sufficiently multiply the proceedings for purposes of sanctions under §1927

when they filed the emergency motion. See Peer, 606 F.3d at 1314; Michel v. United

States, 112 F. App’x 252, 255–56 (4th Cir. 2004) (“[W]e conclude that the filing of

a single motion by Michel, which necessitated only a routine response, did not so

‘multiply the proceedings’ as to violate section 1927.”); see also Boler v. Space

Gateway Support Co. LLC, 290 F. Supp. 2d 1272, 1285 (M.D. Fla. 2003); Reef Azul,

LLC v. Potter, No. 22-80815, 2022 WL 17583747 (S.D. Fla. Aug. 22, 2022), report

and recommendation adopted, No. 22-CV-80815, 2022 WL 17583750 (S.D. Fla.

Sept. 8, 2022) (denying § 1927 sanctions where the offending pleading was pending

for only eleven days and voluntarily withdrawn). After all, if the Defendants’

sanctions motion came by way of Rule 11, sanctions would not be awarded because

of the safe harbor provision. Fed. R. Civ. P. 11(c)(2); see also Peer, 606 F.3d at

1315 (“The purpose of Rule 11(c)(2)’s safe harbor provision is to allow an attorney

who violates Rule 11 to correct the alleged violation within twenty-one days without

being subject to sanctions.”). Simply put, the Court finds it significant that the

Federal Defenders acted promptly when asked to withdraw the motion. As a result,

the Court cannot conclude that Hahn and Keeton have multiplied the proceedings

unreasonably and vexatiously within the meaning of 28 U.S.C. § 1927.

Finally, under §1927, sanctions are intended to cover “excess costs, expenses,

and attorneys’ fees reasonably incurred” because of such conduct. Here, there has

been no evidence provided of “excess costs, expenses, and attorneys’ fees” that have

been “reasonably incurred.” 28 U.S.C. § 1927. The Defendants were, and are,

represented by the Attorney General’s Office, not outside attorneys. As such, there

have been no incurred attorneys’ fees.

The Defendants argue that nevertheless there were approximately eleven

hours of attorney time devoted to investigating the Federal Defenders’ emergency

motion, and that should count for something. True. And the Court also devoted

time that evening and the next morning to this ill-filed emergency motion as well.

But the statute refers to “excess costs, expenses and attorneys’ fees” with the

additional requirement that they be “incurred.” No such incurred excess fees exist.

Looking to Rule 11 and its general provision for an award of “reasonable fees,” as

the Defendants suggest, is unhelpful, as the current motion proceeds under the more

limiting language of § 1927.

C. Spiritual Advisor Issue

Although not explicitly made the basis of the Defendants’ sanctions motion,

the Court finds it necessary to address another concern as it relates to the conduct of

the attorneys here since it does bear on the issue of the attorneys’ motives in filing

the emergency motion. And that is, spiritual advisors.

Until 2021, no one was allowed in the execution chamber except for ADOC

representatives. That changed in 2021 with litigation filed in the Middle District of

Alabama. Since then, spiritual advisors have been permitted in the execution

chamber itself; attorneys however have not been permitted. And understandingly

so. That changed here with the actions of the same attorneys involved in filing the

emergency motion. And the timeline of events suggests a possible misuse of the

spiritual advisor process in an effort to put an attorney in the chamber.

After the Court commented upon the gamesmanship18 at play in this litigation,

Keeton filed an affidavit stating that between the date that the Alabama Supreme

Court authorized Grayson’s execution (August 12, 2024) and the date that Governor

Ivey set it (August 19, 2024), Grayson asked Keeton to serve as his spiritual advisor

(doc. 120-1 at 2; doc. 136-1 at 3) which, according to Keeton, came as no real

surprise since she and Grayson had often talked about their spiritual faith and had

prayed together (doc. 120-1 at 2).

18 The Court also mentioned gamesmanship from the Attorney General’s Office in having

attorneys serve as witnesses to the use and effect of the mask and in calling as a witness at the

preliminary injunction hearing an attorney from its office who viewed the Smith execution after

previously opposing the Federal Defenders’ motion to videorecord the Smith execution.

Keeton’s affidavit testimony however contradicts the August 19, 2024, letter

that she sent to ADOC’s general counsel. In that letter, which she authored after

having allegedly spoken with Grayson about serving as Grayson’s spiritual advisor,

Keeton wrote that Grayson would like to have his attorney present “in lieu of a

spiritual advisor.” (Doc. 136-1 at 9.) In that same letter, when wanting to be present

as an attorney for Grayson, Keeton also asked permission to have a watch, pen,

paper and activated cell phone. The inference being that Keeton’s intent was more

about documenting the execution for future litigation than in honoring the final

requests of a condemned inmate. Then, when informed by ADOC general counsel

that Grayson could not have his attorney present in lieu of a spiritual advisor, Keeton

switched tactics, authoring a letter on August 29, 2024, that notified ADOC that

Grayson was designating her as his “designated spiritual advisor” and Matt Schultz,

another attorney with the Federal Defenders’ office, as the “designated alternate.”

(Doc. 84-24 at 1–2.)

This timeline and the statements in the written correspondence call into doubt

the true intentions of the Federal Defenders’ office and suggests the possible misuse

of the spiritual advisor process. While ADOC has not made a formal protest or filed

a motion over it in the context of Grayson’s litigation, the series of events do create

a concern that the attorneys here are not operating in conformity with the

expectations of professionalism and candor that is expected of all attorneys. And,

arguably, it could constitute circumstantial evidence of the bad faith motivations that

the Defendants say underlie the filing of the emergency motion in the first place.

The Court will go no further than mention this troubling observation about counsel’s

conduct.

CONCLUSION

The Court will deny the Defendants’ Motion for Attorney’s Fees. But the

Federal Defenders do not get off scot-free. The conduct here is troubling. Putting

aside the spiritual advisor concerns, the emergency motion was another example of

the gamesmanship that is regularly occurring in these cases. And it must stop. The

Court recognizes that death penalty litigation is highly emotional, and the stakes are

probably at the highest. And here, one of those stakes is “the cause,” with “the

cause” being to stop Nitrogen Hypoxia or at least slow or stall it before it spreads to

other states. This case presents a rare circumstance where counsel’s zealous

advocacy for “the cause” diverted from the interests and requests of the client. After

all, the record is clear that Grayson did not want Midazolam; he testified under oath

to it. And as such, the Federal Defenders were aware of it. Yet the Federal

Defenders tried to push it and arguably tried to push it under the guise of a

therapeutic need for a sedative.

Simply put, the judgment exercised in filing the emergency motion on the

basis and for the reasons that it was filed was reckless. But the Court does not

perceive that counsel’s conduct was so egregious, rose so high, as to be sanctionable

bad faith under § 1927 when the existing record and all factors under § 1927 are

considered. At worst, these proceedings demonstrate lawyering that fails to meet

idealistic standards. The Court therefore will not sanction the Federal Defenders

under § 1927 over this. The Court’s discussion of the events should be enough.

Accordingly, the Defendants’ Motion for Attorneys’ Fees (doc. 114) is

DENIED.

DONE, on this the 29th day of August 2025.

UNITED STATES DISTRICT JUDGE

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