# Grayson v. Hamm(DEATH PENALTY)

> District Court, M.D. Alabama · August 29, 2025

URL: https://www.frixlaw.com/law-library/cases/11130334

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** August 29, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11130334

## How later opinions describe it (automated extraction)

- describing recklessness as “a gross deviation from conduct that might be reasonable in the circumstances”

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11130334. Public record. Not legal advice.