Amicus Curiae Brief — Michael Nance, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections, et al.
Supreme Court briefMar 4, 2022
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No. 21-439
IN THE
Supreme Court of the United States
_________
MICHAEL NANCE,
Petitioner,
v.
TIMOTHY C. WARD, COMMISSIONER, GEORGIA
DEPARTMENT OF CORRECTIONS, AND WARDEN,
GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
Respondents.
_________
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
_________
BRIEF OF AMERICAN CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION OF
GEORGIA, AND THE RUTHERFORD INSTITUTE
AS AMICI CURIAE IN SUPPORT OF PETITIONER
_________
Catherine E. Stetson
Dana A. Raphael
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
cate.stetson@hoganlovells.com
Allison M. Wuertz
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
David D. Cole
Counsel of Record
David C. Fathi
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 Fifteenth Street, N.W.
Washington, D.C. 20005
(212) 549-2611
dcole@aclu.org
(Additional counsel listed on inside cover)
John W. Whitehead
William E. Winters
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Charlottesville, VA 22911
(434) 978-3888
legal@rutherford.org
Brian W. Stull
Cassandra Stubbs
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
201 W. Main Street,
Suite 402
Durham, NC 27701
Jennesa Calvo-Friedman
Brandon J. Buskey
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
Sean J. Young
AMERICAN CIVIL LIBERTIES
UNION OF GEORGIA
P.O. Box 570738
Atlanta, GA 30357
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
STATEMENT OF INTEREST ................................... 1
SUMMARY OF ARGUMENT .................................... 2
ARGUMENT ............................................................... 4
I.
II.
TEXT, HISTORY, AND PRECEDENT
ESTABLISH THAT
METHOD-OF-EXECUTION CLAIMS
ARE PROPERLY BROUGHT UNDER
42 U.S.C. § 1983 ............................................... 4
A.
Challenges to Methods of
Execution Do Not Implicate the
Fact of Conviction or Sentence
and Are Therefore Appropriate
for § 1983 Rather Than Habeas .............. 4
B.
Method-of-Execution Challenges
Do Not Require That Prisoners
Allege Alternatives Currently
Authorized By State Law ........................ 7
C.
States Frequently Change their
Execution Methods Without
Requiring Resentencing ........................ 14
SECTION 1983 IS WELL-SUITED
TO RESOLVE
METHOD-OF-EXECUTION
CHALLENGES ............................................... 19
A.
Section 1983’s Flexibility Facilitates the Efficient Resolution of
Method-of-Execution Challenges .......... 19
(i)
ii
TABLE OF CONTENTS—Continued
Page
B.
Section 1983 Ensures Timely
Federal Review of Method-of-Execution Challenges .................................. 22
CONCLUSION .......................................................... 26
APPENDIX
APPENDIX A—Sentence, State v. Nance,
No. 95-B-02461-4 (Ga. Super. Ct. Sept.
20, 2002) .............................................................. 1a
APPENDIX B—Death Sentence, State v.
Ledford, No. 92-CR-4295 (Ga. Super. Ct.
Nov. 14, 1992)...................................................... 3a
APPENDIX C—Judgment and Sentence of
Death, State v. Johnson, No. 97-R-1723
(Ga. Super. Ct. Apr. 7, 1998) .............................. 5a
APPENDIX D—Sentence, State v. Wilson,
No. 39249B (Ga. Super. Ct. Nov. 7, 1997).......... 7a
iii
TABLE OF AUTHORITIES
Page(s)
CASES:
Alderman v. Donald,
293 F. App’x 693 (11th Cir. 2008) ....................... 21
Ayestas v. Davis,
138 S. Ct. 1080 (2018) ............................................ 2
Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal.,
522 U.S. 192 (1997) .............................................. 19
Baze v. Rees,
553 U.S. 35 (2008) .................................................. 2
Bourgeois v. Barr,
141 S. Ct. 180 (2020) ............................................ 24
Brooks v. Warden,
810 F.3d 812 (11th Cir. 2016) .............................. 18
Bucklew v. Lombardi,
783 F.3d 1120 (8th Cir. 2015) (en banc) .............. 10
Bucklew v. Precythe,
139 S. Ct. 1112 (2019) .................................. passim
Bucklew v. Precythe,
883 F.3d 1087 (8th Cir. 2018) .................. 10, 11, 21
Castille v. Peoples,
489 U.S. 346 (1989) .............................................. 26
Coleman v. Thompson,
501 U.S. 722 (1991) .............................................. 26
Cooper v. Aaron,
358 U.S. 1 (1958) .................................................... 8
Crawford–El v. Britton,
523 U.S. 574 (1998) .............................................. 21
iv
TABLE OF AUTHORITIES—Continued
Page(s)
Dawson v. State,
554 S.E.2d 137 (Ga. 2001) ......................... 6, 15, 16
Edwards v. Balisok,
520 U.S. 641 (1997) ................................................ 5
Erickson v. Pardus,
551 U.S. 89 (2007) ................................................ 24
Foster v. Chatman,
578 U.S. 488 (2016) .............................................. 11
Glossip v. Gross,
576 U.S. 863 (2015) ...................................... passim
Grayson v. Dunn,
156 F. Supp. 3d 1340 (M.D. Ala. 2015) ............... 18
Heck v. Humphrey,
512 U.S. 477 (1994) ............................................ 5, 6
Hill v. McDonough,
547 U.S. 573 (2006) .......................................... 5, 13
Hutto v. Finney,
437 U.S. 678 (1978) .............................................. 12
In re Fed. Bureau of Prisons’ Execution
Protocol Cases,
955 F.3d 106 (D.C. Cir. 2020) .............................. 24
In re Provenzano,
179 F.3d 1326 (11th Cir. 1999) ............................ 23
In re Provenzano,
215 F.3d 1233 (11th Cir. 2000) ................ 18, 20, 23
Johnson v. Bell,
457 F. Supp. 2d 839 (M.D. Tenn. 2006) .............. 18
v
TABLE OF AUTHORITIES—Continued
Page(s)
Jones v. Allen,
483 F. Supp. 2d 1142 (M.D. Ala.), as
clarified (Apr. 20, 2007) ....................................... 18
Jones v. Allen,
485 F.3d 635 (11th Cir. 2007) .............................. 18
Ledford v. Comm’r, Georgia Dep’t of Corr.,
856 F.3d 1312 (11th Cir. 2017) ............................ 21
Malloy v. South Carolina,
237 U.S. 180 (1915) .............................................. 14
Martinez v. Ryan,
566 U.S. 1 (2012) .................................................. 25
McKinney v. Arizona,
140 S. Ct. 702 (2020) .............................................. 2
Moore v. Kinney,
119 F. Supp. 2d 1022 (D. Neb. 2000) ............. 25, 26
Moore v. Kinney,
320 F.3d 767 (8th Cir. 2003) (en banc) ................ 26
Murphy v. Collier,
139 S. Ct. 1475 (2019) .......................................... 13
Murphy v. Collier,
942 F.3d 704 (5th Cir. 2019) ................................ 13
Nelson v. Campbell,
541 U.S. 637 (2004) ................................ 5, 6, 13, 20
New York v. United States,
505 U.S. 144 (1992) ............................................ 7, 8
Owens v. Hill,
758 S.E.2d 794 (Ga. 2014) ................................... 25
Poland v. Stewart,
117 F.3d 1094 (9th Cir. 1997) .............................. 20
vi
TABLE OF AUTHORITIES—Continued
Page(s)
Printz v. United States,
521 U.S. 898 (1997) ................................................ 8
Provenzano v. Moore,
744 So. 2d 413 (Fla. 1999) ................. 14, 17, 22, 23
Provenzano v. Singletary,
148 F.3d 1327 (11th Cir. 1998) ............................ 22
Siebert v. Allen,
506 F.3d 1047 (11th Cir. 2007) ............................ 19
Skinner v. Switzer,
562 U.S. 521 (2011) .......................................... 5, 21
State v. Allen,
919 N.W.2d 500 (Neb. 2018) ................................ 17
State v. Dunster,
769 N.W.2d 401 (Neb. 2009) ................................ 17
State v. Ellis,
799 N.W.2d 267 (Neb. 2011) ................................ 17
State v. Galindo,
774 N.W.2d 190 (Neb. 2009) ................................ 17
State v. Mata,
745 N.W.2d 229 (Neb. 2008) ................................ 16
State v. Moore,
316 N.W.2d 33 (Neb. 1982) ............................ 16, 17
State v. Moore,
718 N.W.2d 537 (Neb. 2006) ................................ 25
State v. Ryan,
845 N.W.2d 287 (Neb. 2014) .......................... 17, 25
State v. Torres,
812 N.W.2d 213 (Neb. 2012) ................................ 17
vii
TABLE OF AUTHORITIES—Continued
Page(s)
State v. Vela,
777 N.W.2d 266 (Neb. 2010) ................................ 17
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) .................................... 11, 12, 23
Tompkins v. Sec’y, Dep’t of Corr.,
557 F.3d 1257 (11th Cir. 2009) ............................ 20
United States v. Peters,
9 U.S. (5 Cranch) 115 (1809) ................................. 8
United States v. Tsarnaev,
No. 20-443 (U.S.) .................................................... 2
Wallace v. Kato,
549 U.S. 384 (2007) ........................................ 19, 21
Wilkerson v. Utah,
99 U.S. 130 (1878) .................................................. 9
Wilkinson v. Dotson,
544 U.S. 74 (2005) .................................................. 5
CONSTITUTIONAL PROVISIONS:
U.S. Const. art. III, § 2 ............................................. 8
U.S. Const. art. VI, § 2 ............................................. 8
STATUTES:
28 U.S.C. § 2244(b)(2)(B) ........................................ 23
28 U.S.C. § 2244(b)(3) ............................................. 24
42 U.S.C. § 1983.............................................. passim
Ala. Code § 15-18-82.1 ............................................ 11
Fla. Stat. § 922.10 (1997) ....................................... 17
Ga. Code Ann. § 17-10-34 ....................................... 16
Miss. Code. Ann. § 99-19-51 ................................... 11
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Miss. Code. Ann. § 99-19-51(4)................................. 9
Neb. Rev. Stat. § 83-964 ......................................... 16
Okla. Stat. tit. 22, § 1014 ....................................... 11
Okla. Stat. tit. 22, § 1014(D) .................................... 9
S.C. Code Ann. § 24-3-530 ........................................ 9
Utah Code Ann. § 77-18-113 .................................... 9
LEGISLATIVE MATERIAL:
L.B. 268, § 17, 83d Leg., 1st Sess. (Neb.
1973), 1973 Neb. Laws 782 .................................. 16
OTHER AUTHORITIES:
Execution Database, Death Penalty Info.
Ctr., https://deathpenaltyinfo.org/executions/execution-database (choose “Florida” from dropdown; then select “start
date” as 01/01/2000; then click “apply”) .............. 18
Marcus Ray Johnson, Death Penalty Info.
Ctr., https://deathpenaltyinfo.org/executions/execution-database/1421/marcusjohnson (last visited Mar. 4, 2022) ...................... 15
J.W. Ledford, Death Penalty Info. Ctr.,
https://deathpenaltyinfo.org/executions/execution-database/1453/jw-ledford (last visited Mar. 4, 2022) ............................ 15
Carey Moore, Death Penalty Info. Ctr.,
https://deathpenaltyinfo.org/executions/execution-database/1481/careymoore (last visited Mar. 4, 2022) ......................... 17
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Thomas Provenzano, Death Penalty Info.
Ctr., https://deathpenaltyinfo.org/executions/execution-database/647/thomasprovenzano (last visited Mar. 4, 2022) ................ 23
Marion Wilson, Death Penalty Info. Ctr.,
https://deathpenaltyinfo.org/executions/execution-database/1500/marionwilson (last visited Mar. 4, 2022) ........................ 15
IN THE
Supreme Court of the United States
_________
No. 21-439
_________
MICHAEL NANCE,
v.
Petitioner,
TIMOTHY C. WARD, COMMISSIONER, GEORGIA
DEPARTMENT OF CORRECTIONS, AND WARDEN,
GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
Respondents.
_________
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
_________
BRIEF OF AMERICAN CIVIL LIBERTIES UNION,
AMERICAN CIVIL LIBERTIES UNION OF
GEORGIA, AND THE RUTHERFORD INSTITUTE
AS AMICI CURIAE IN SUPPORT OF PETITIONER
_________
STATEMENT OF INTEREST1
The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan organization with
nearly two million members and supporters dedicated
to the principles of liberty and equality embodied in
the Constitution. The ACLU has authored amicus
1
No party or counsel for a party authored this brief in whole or
in part. No party, counsel for a party, or person other than amici
curiae, their members, or counsel made any monetary
contribution intended to fund the preparation or submission of
this brief. All parties have consented to the filing of this brief.
(1)
2
briefs in many different matters that address issues
related to the death penalty, including in United
States v. Tsarnaev, No. 20-443 (U.S.), McKinney v. Arizona, 140 S. Ct. 702 (2020), Bucklew v. Precythe, 139
S. Ct. 1112 (2019), Ayestas v. Davis, 138 S. Ct. 1080
(2018), and Baze v. Rees, 553 U.S. 35 (2008). The
ACLU of Georgia is its state affiliate in Georgia.
The Rutherford Institute is an international nonprofit organization headquartered in Charlottesville,
Virginia. Founded in 1982 by its President, John W.
Whitehead, the Institute provides legal assistance at
no charge to individuals whose constitutional rights
have been threatened or violated and educates the
public about constitutional and human rights issues
affecting their freedoms. The Rutherford Institute
works tirelessly to resist tyranny and threats to freedom by seeking to ensure that the government abides
by the rule of law and is held accountable when it infringes on the rights guaranteed to persons by the
Constitution and laws of the United States.
SUMMARY OF ARGUMENT
During a pre-execution physical examination, Michael Nance learned that he may not be fully sedated
during his execution due to a drug interaction between the lethal injection and his prescription medication. Nance also learned that his veins were compromised and could rupture, which would cause severe pain as the drugs intended to kill him also burned
surrounding tissue.
Accepting the fact of his execution but not the State’s
planned method, Nance brought a challenge under 42
U.S.C. § 1983 to Georgia’s lethal injection protocol as
applied to his execution. Following this Court’s recent
command that death-condemned prisoners allege “a
3
feasible and readily implemented alternative” when
challenging the method of execution, Bucklew, 139 S.
Ct. at 1125, Nance proposed that Georgia execute him
by firing squad—a method authorized in four other
States.
But because Nance’s proposed alterative is not currently authorized in Georgia, the Eleventh Circuit
transformed his § 1983 suit into a habeas petition—
despite the fact that “the alternative method of execution need not be authorized under current state law.”
Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring).
The Eleventh Circuit eschewed this Court’s precedents to string together an atextual, ahistoric, and
complicated jurisdictional regime that would deprive
many death-condemned prisoners of their right to federal court review. Amici write to support Nance’s argument that his method-of-execution claim is properly
brought under § 1983.
Nance seeks a remedy to redress the circumstances
of his execution, not one that prevents it, making his
claim akin to any other unconstitutional-conditions
challenge typically brought under § 1983. The Eleventh Circuit’s labored reasoning to the contrary ignores this Court’s precedents, which allow prisoners
to point to alternative execution methods authorized
in other States. States also routinely change their execution methods without resentencing death-condemned prisoners, understanding that the method of
execution is independent from the death sentence itself. Accordingly, such challenges are properly heard
under § 1983.
Section 1983 is a familiar, efficient tool that is wellsuited to resolve method-of-execution claims. It
4
provides courts with flexibility to consider claims
when ripe while also establishing safeguards to deter
meritless litigation.
But instead of considering
Nance’s § 1983 petition on its merits, the Eleventh
Circuit grafted habeas rules onto a proceeding that
impugns neither the conviction nor the sentence.
That procedural mismatch opens the door to an array
of problems future litigants will ask this Court to resolve.
This Court should reverse.
ARGUMENT
I.
TEXT, HISTORY, AND PRECEDENT
ESTABLISH
THAT
METHOD-OFEXECUTION CLAIMS ARE PROPERLY
BROUGHT UNDER 42 U.S.C. § 1983.
A. Challenges to Methods of Execution Do
Not Implicate the Fact of Conviction or
Sentence and Are Therefore Appropriate
for § 1983 Rather Than Habeas.
Section 1983 affords a remedy for challenges to the
conditions by which one’s sentence is executed, while
habeas is the appropriate remedy for challenges to the
conviction itself and to seek release or resentencing.
Nance does not seek to overturn his conviction or sentence in this action, nor does he dispute that Georgia
can execute him. He contests only the State’s planned
method of carrying out the sentence—a lethal injection protocol that, he alleges, will be cruel and unusual as applied to him because of his medical condition. As Nance does not seek release or a reprieve
from capital punishment, he properly brought his
method-of-execution challenge under § 1983, not habeas.
5
“Section 1983 authorizes a ‘suit in equity, or other
proper proceeding for redress,’ against any person
who, under color of state law, ‘subjects, or causes to be
subjected, any citizen of the United States * * * to the
deprivation of any rights, privileges, or immunities secured by the Constitution.’ ” Nelson v. Campbell, 541
U.S. 637, 643 (2004) (quoting 42 U.S.C. § 1983). “Habeas is the exclusive remedy * * * for the prisoner who
seeks ‘immediate or speedier release’ from confinement.” Skinner v. Switzer, 562 U.S. 521, 525 (2011)
(quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)).
Challenges to the fact of a conviction or sentence are
“within the ‘core’ of habeas corpus” and “not cognizable when brought pursuant to § 1983.” Nelson, 541
U.S. at 643.
But “claims that merely challenge the conditions of
a prisoner’s confinement,” not the underlying fact of
conviction or sentence, fall outside the habeas corpus
“core” and “may be brought pursuant to § 1983 in the
first instance.” Id. Such claims, “even if successful,
will not demonstrate the invalidity” of the conviction
or sentence, Heck v. Humphrey, 512 U.S. 477, 487
(1994), and do not “necessarily spell speedier release.”
Skinner, 562 U.S. at 525 (quoting Wilkinson, 544 U.S.
at 82).
Because a challenge to a State’s planned method of
execution “does not attack the validity of the prisoner’s conviction or death sentence,” it “must be
brought under § 1983.” Glossip v. Gross, 576 U.S. 863,
879 (2015). Habeas is required only when “a grant of
relief to the inmate would necessarily bar the execution,” not just when relief “would frustrate the execution as a practical matter.” Hill v. McDonough, 547
U.S. 573, 583 (2006) (emphasis added) (citing Edwards v. Balisok, 520 U.S. 641, 645 (1997)).
6
Nance’s claim fits squarely within the literal terms
of § 1983 and this Court’s explication of its interrelationship with habeas in Heck. Nance accepts that if
he “gets all the relief he seeks, he will still be executed.” Pet’r’s Br. 4. Nance challenges only the specific way he will be executed—not whether he will die.
Nance alleged that the combination of his compromised veins and his tolerance to the lethal-injection
sedative would render lethal injection so painful that
it would violate the Eighth Amendment. Id. at 14. He
specified that he could be executed by firing squad.2
Thus, his request for an alternative method does not
“imply the invalidity” of his sentence; it implies the
invalidity of only one means of carrying it out.
As this Court has made clear, § 1983 is the appropriate vehicle for challenging the method of execution.
See Nelson, 541 U.S. at 647 (challenge to cut-down
procedure to enable lethal injection properly brought
under § 1983); Glossip, 6 U.S. at 879-880 (addressing
Eighth Amendment challenge to Oklahoma’s switch
from pentobarbital to midazolam under § 1983); Hill,
547 U.S. at 583 (same, for challenge to drug cocktail).
“The severability of the sentence of death from the
method of execution of that sentence in Georgia law is
apparent in the death penalty statutes * * * .” Dawson v. State, 554 S.E.2d 137, 144 (Ga. 2001). Nance
seeks a remedy relating to the circumstances of his
execution, not one that prevents it.
2
Not only does Nance concede the fact of his execution, he has
affirmatively proposed a method for carrying it out—as this
Court requires.
7
B. Method-of-Execution Challenges Do Not
Require That Prisoners Allege Alternatives Currently Authorized By State Law.
This Court requires prisoners challenging a method
of execution to allege an alternative method, confirming that such challenges are not to death sentences
themselves, but merely to some particular means of
carrying them out. Nance pointed to the firing squad
as “a known and available alternative.” Glossip, 576
U.S. at 880. The fact that Georgia does not currently
authorize death by firing squad does not alter the result.
This Court has explicitly provided that a death row
prisoner may point to an alternative method authorized by a sister State; a prisoner is “not limited to
choosing among those [methods] presently authorized
by a particular State’s law,” and “may point to a wellestablished protocol in another State as a potentially
viable option.” Bucklew, 139 S. Ct. at 1128; see also
id. at 1136 (Kavanaugh, J., concurring) (“I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law * * * .”). “[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can’t be controlled by the
State’s choice of which methods to authorize in its
statutes.” Id. at 1128.3
3
The Eleventh Circuit said it must “take the State’s law as fixed”
because the alternative “effectively * * * direct[s] the State to either enact new legislation or vacate his death sentence,” which
the Eleventh Circuit intimated would violate the anticommandeering principle. Pet.App.19a (citing New York v. United States,
8
The fact that a death row prisoner may point to an
alternative that is not currently authorized under
state law so long as it is “known” and “available” in
sister States confirms that it makes no difference to
the analysis whether the State in question has authorized only one or more than one method of execution. This Court’s test contemplates that a successful
claim can be made if: (1) the State’s only authorized
method is cruel and unusual; and (2) there is a known
and available alternative, whether or not the State
currently authorizes that alternative. The requirement to plead an alternative makes clear that by definition a method-of-execution challenge is not a challenge to the death penalty itself, but only to one particular way of carrying it out. If Nance prevails, he
has maintained that Georgia is free to authorize a firing squad (or some other constitutional method it
identifies) and execute him; just as in a challenge to
505 U.S. 144, 188 (1992)). Under that principle, “Congress cannot compel the States to enact or enforce a federal regulatory
program,” nor “circumvent that prohibition by conscripting the
State’s officers directly.” Printz v. United States, 521 U.S. 898,
935 (1997) (emphasis added).
But courts may order state officials to comply with the Constitution and do so every day. Indeed, the anticommandeering
cases themselves recognize “the power of federal courts to order
state officials to comply with federal law” because “the text of the
Constitution plainly confers this authority on the federal courts.”
New York, 505 U.S. at 179. To suggest otherwise is incompatible
with our constitutional order. See U.S. Const. art. III, § 2; art.
VI, § 2; Cooper v. Aaron, 358 U.S. 1, 18 (1958) (“If the legislatures
of the several states may, at will, annul the judgments of the
courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn
mockery * * * .” (quoting United States v. Peters, 9 U.S. (5
Cranch) 115, 136 (1809))).
9
conditions of confinement, the State is free to continue
confinement if it eliminates the offending conditions.
Both actions properly sound in § 1983, not habeas.
Nance met those pleading requirements by identifying an alternative method—death by firing squad—
that is one of several “traditionally accepted methods
of execution.” Bucklew, 139 S. Ct. at 1125; see also
Wilkerson v. Utah, 99 U.S. 130, 134-135 (1878) (“Cruel
and unusual punishments are forbidden by the Constitution, but * * * the punishment of shooting as a
mode of executing the death penalty for the crime of
murder in the first degree is not included in that category * * * .”). Four States currently permit execution
by firing squad if other methods are found unconstitutional or are otherwise unavailable. 4 Since 1976,
Utah has executed three people by firing squad, most
recently in 2010. See Pet.App.44a (Martin, J., dissenting).5 Indeed, Missouri conceded in Bucklew “that the
firing squad would be such an available alternative, if
adequately pleaded”—even though the firing squad
was not currently authorized under Missouri law.
Bucklew, 139 S. Ct. at 1136 (Kavanaugh, J., concurring).
As a result, the Court found “little likelihood that an
inmate facing a serious risk of pain will be unable to
identify an available alternative.” Id. at 1128-29. “In
other words, an inmate who contends that a particular method of execution is very likely to cause him
4
They are Mississippi, Miss. Code. Ann. § 99-19-51(4); Oklahoma, Okla. Stat. tit. 22, § 1014(D); South Carolina, S.C. Code
Ann. § 24-3-530; and Utah, Utah Code Ann. § 77-18-113.
5
Documents referenced by “App.” have been attached as an appendix to this brief for the Court’s convenience and are included
within the certified word count.
10
severe pain should ordinarily be able to plead some
alternative method of execution that would significantly reduce the risk of severe pain.” Id. at 1136 (Kavanaugh, J., concurring).
What Bucklew did not say was that failing to satisfy
those pleading requirements transforms a § 1983
method-of-execution claim into a habeas petition, over
which district courts would lack jurisdiction in the
first instance if the petition were second or successive.
Under this Court’s precedents, failing to identify an
alternative execution method—whether that of the
defendant State or another in the Union—simply
means that the prisoner failed to state a claim for relief, not that the district court lacked jurisdiction to
entertain the claim at all.6
The Eleventh Circuit’s position that the district
court ultimately lacked jurisdiction to hear Nance’s
claim thus comes as a surprise, given that no Justice
identified any jurisdictional problem in Bucklew. The
prisoner there, as here, filed a § 1983 action alleging
that Missouri’s lethal injection protocol would constitute cruel and unusual punishment because of his
medical condition. See Bucklew v. Precythe, 883 F.3d
1087, 1089 (8th Cir. 2018), aff ’ d, 139 S. Ct. 1112
(2019). After Glossip, the Eighth Circuit instructed
the plaintiff to amend his complaint by “identify[ing]
a feasible, readily implemented alternative procedure.” Bucklew v. Lombardi, 783 F.3d 1120, 1128 (8th
Cir. 2015) (en banc). In addition to identifying nitrogen hypoxia as an alternative method of execution,
6
What’s more, because the Baze plaintiffs also challenged the
State’s sole authorized method of execution (lethal injection), the
plurality could have explained that such challenges must proceed by habeas—but did not.
11
the amended complaint alleged that “no modification
of Missouri’s lethal injection method of execution
could be constitutionally applied.” Bucklew, 883 F.3d
at 1093.
Like Nance, Bucklew had unsuccessfully challenged
his conviction and death sentence through habeas before bringing a method-of-execution claim under
§ 1983. Id. at 1089. Just as Georgia law does not permit execution by firing squad, Missouri protocols did
not provide for execution by nitrogen hypoxia. Thus,
just as Nance’s complaint did here, Bucklew’s “complaint s[ought] an injunction against the only method
of execution authorized.” Pet.App.14a.7
But neither party contested the Court’s ultimate jurisdiction to hear the challenge, and this Court did not
identify any jurisdictional problem despite its “independent obligation to determine whether subject-matter jurisdiction exists.” Foster v. Chatman, 578 U.S.
488, 496 (2016) (citation omitted). The Eleventh Circuit’s logic implies that this Court in Bucklew departed, silently and radically, from its long-held view
that the Court will never “decid[e] the merits before a
disputed question of Article III jurisdiction.” Steel Co.
7
Although Missouri statutory law permitted executions by lethal gas generically, it had not used that method since 1965, had
no protocol in place for such executions, and had never used nitrogen hypoxia. Bucklew, 883 F.3d at 1094. Therefore, because
the prisoner “sought the adoption of an entirely new method” rather than “point[ing] to a proven alternative method,” this Court
concluded that he failed to plead a “feasible,” “readily implemented” alternative. Bucklew, 139 S. Ct. at 1129-30. Oklahoma,
Mississippi, and Alabama have since authorized execution by nitrogen hypoxia. See Okla. Stat. tit. 22, § 1014; Miss. Code. Ann.
§ 99-19-51; Ala. Code § 15-18-82.1.
12
v. Citizens for a Better Env’t, 523 U.S. 83, 100 n.3
(1998).
The requirement of pleading and proving an alternative method—whether or not it is currently authorized by state law—makes clear that a method-of-execution challenge does not seek to invalidate the death
sentence itself, but only the designated method, making it akin to any other challenge to unconstitutional
conditions of confinement. A prisoner challenging his
placement in solitary confinement as unconstitutional
does not seek to be let out of jail, only to remove himself from solitary confinement. See e.g., Hutto v. Finney, 437 U.S. 678, 685 (1978) (judgment for prisoners
who brought § 1983 challenge to solitary confinement
under Eighth Amendment). Nor does a prisoner seeking to practice his religion while incarcerated look to
have his sentence reduced, only to have unconstitutional limits on his religious freedom removed. See
e.g., Murphy v. Collier, 139 S. Ct. 1475 (2019) (staying
execution of prisoner who brought § 1983 challenge to
Texas’s refusal to permit Buddhist spiritual advisor in
execution chamber); Murphy v. Collier, 942 F.3d 704,
706-708 (5th Cir. 2019) (district court did not abuse
discretion by staying execution pending resolution of
prisoner’s § 1983 suit alleging revised execution policy
violated First Amendment and Religious Land Use
and Institutionalized Persons Act).
The Eleventh Circuit recites dicta from prior cases
that it says require jettisoning precedent.8 However,
8
See Pet.App.11a (“[E]xisting state law might be relevant to
determining the proper procedural vehicle for the inmate’s
claim.” (quoting Bucklew, 139 S. Ct. at 1128)); id. at 9a-10a (“[If]
13
as Judge Martin explained in dissent,“[t]aken to its
logical end, the [Eleventh Circuit’s] holding would
also bless a State’s efforts to legislate away available
alternatives that a litigant could point to in order to
satisfy his burden under Baze-Glossip in a § 1983 action,” thus foreclosing claims that “the Supreme Court
ha[s] historically and repeatedly treated as cognizable
under § 1983.” Pet.App.38a-39a n.3 (Martin, J., dissenting).
The reality is that most States authorize just one
method of execution; “[t]wenty-seven of the thirty-six
States that [as of 2008] provide for capital punishment require execution by lethal injection as the sole
method.” Baze, 553 U.S. at 42 n.1 (plurality op.). Under the Eleventh Circuit’s ruling, the State’s “selection of procedures, no matter how narrow or specific,”
not only deserve deference “but also work to prevent a
challenge under § 1983.” Pet.App.38a-39a n.3 (Martin, J., dissenting). Federal law does not require that
result.
the relief sought would foreclose execution,” “recharacterizing a
complaint as an action for habeas corpus might be proper.” (quoting Hill, 547 U.S. at 582)); id. at 8a-9a (“[W]here the legislature
has established lethal injection as the preferred method of execution, a constitutional challenge seeking to permanently enjoin
the use of lethal injection may amount to a challenge to the fact
of the sentence itself.” (quoting Nelson, 541 U.S. at 644)); see also
Pet.App.72a-73a (Pryor, C.J., and Newsom and Lagoa, JJ., respecting the denial of rehearing en banc). As Nance points out
(at Pet’r’s Br. 31), the dicta in Hill and Nelson “addressed a scenario that is no longer permitted today”—challenging a State’s
method of execution without proposing an alternative—and the
dictum in Bucklew “merely identified” an issue the Court had
previously noted in earlier dicta. Id. at 30.
14
C. States Frequently Change Their Execution Methods Without Requiring Resentencing.
Successfully challenging a State’s execution method
does not render the State incapable of executing the
prisoner, and the Eleventh Circuit’s speculation to the
contrary is belied by the historical record. Over the
past several decades, most States that previously authorized electrocution as their primary method of execution switched to lethal injection. Prisoners sentenced to die under the former method were routinely
executed under the latter—without resentencing.
The ability of States to change their methods of execution without the need for resentencing dates back at
least a century. In 1912, South Carolina decided that
“all persons convicted of capital crime and have imposed upon them the sentence of death shall suffer
such penalty by electrocution * * * instead of by hanging.” Malloy v. South Carolina, 237 U.S. 180, 181-182
& n.1 (1915). This Court rejected an ex post facto challenge to the law because it “did not change the penalty—death—for murder, but only the mode of producing this, together with certain nonessential details in
respect of surroundings. The punishment was not increased, and some of the odious features incident to
the old method were abated.” Id. at 185.
Of the States permitting capital punishment in
1970, nineteen specified “that electrocution was the
exclusive form of capital punishment.” Provenzano v.
Moore, 744 So. 2d 413, 418 (Fla. 1999) (Harding, C.J.,
specially concurring). When courts invalidated electrocution protocols, States switched to alternative
methods of execution, like lethal injection, and
15
proceeded with the executions. No condemned prisoner required resentencing because of the shift.9
Georgia, for example, adopted electrocution as its
sole method of execution in 1924. Dawson, 554 S.E.2d
at 147 (Thompson, J., dissenting). The legislature in
2000 prospectively authorized lethal injection as the
exclusive method. Shortly thereafter, the Georgia Supreme Court held that electrocution violated the state
constitution’s ban on cruel and unusual punishment.
Dawson, 554 S.E.2d at 139, 144. As a result, numerous prisoners who had been sentenced to death by
electrocution were put to death instead by lethal injection. See App.2a-7a (death sentences for J.W. Ledford, Jr., Marcus Ray Johnson, and Marion Wilson);
J.W. Ledford, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/execution-database/1453/jw-ledford (last visited Mar. 4, 2022) (executed by lethal injection); Marcus Ray Johnson, Death
Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/execution-database/1421/marcus-johnson (last
visited Mar. 4, 2022) (same); Marion Wilson, Death
Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/execution-database/1500/marion-wilson
(last
visited Mar. 4, 2022) (same). None of those prisoners
was resentenced, even though their sentencing orders
specified they were subject to “death by electrocution.”
App.3a-8a. That is because Dawson’s invalidation of
9
The Eleventh Circuit concedes this point, recognizing that “a
judgment in Nance’s favor implies the invalidity of his sentence
as a matter of logical necessity only if we take Georgia law as
fixed,” because “the State could respond by enacting a law
authorizing execution by firing squad.” Pet.App.18a. The Eleventh Circuit concluded, however, that it was required to take
Georgia law as “fixed” because of purported commandeering concerns. Id. Those concerns are unfounded. See supra pp. 7-8 n.3.
16
electrocution “ha[d] no impact whatsoever on the viability of the death penalty in Georgia.” Dawson, 554
S.E.2d at 145 (Sears, J., concurring); see also id. at 144
(rejecting as “misguided and inaccurate” the State’s
argument that the method-of-execution challenge was
“to the death penalty statute as a whole”).10
Nebraska similarly specified that the “mode of inflicting the punishment of death, in all cases, shall be
by causing to pass through the body of the convicted
person a current of electricity,” and went a step further: “[a] crime punishable by death must be punished
according to the provisions herein made and not otherwise.” L.B. 268, § 17, 83d Leg., 1st Sess. (Neb.
1973), 1973 Neb. Laws 782 (emphasis added). When
Nebraska’s Supreme Court invalidated electrocution
under the state constitution, the decision bore “solely
on the legality of the execution of the sentence and not
on the validity of the sentence itself.” State v. Mata,
745 N.W.2d 229, 278-279 (Neb. 2008) (citations omitted). Thus, death sentences “remain[ed] valid” even
though they “cannot be implemented under current
law.” Id. at 278. Nebraska soon after adopted lethal
injection as its sole method of execution, Neb. Rev.
Stat. § 83-964, and used it in 2018 to execute a prisoner who had been sentenced to death by electrocution
in 1980. State v. Moore, 316 N.W.2d 33, 35-36 (Neb.
10
The method of execution is no more part of the sentence than
the date of execution. Georgia law requires that courts “specify
the time period for the execution in the sentence” because executions must occur within 67 days of sentencing. Ga. Code Ann.
§ 17-10-34. As a result, Nance’s sentencing order, dated September 20, 2002, states that he “shall be executed” sometime between October 24 and 31, 2002. App.1a. Although the specified
period of execution has passed, the lapse obviously does not vitiate Nance’s death sentence.
17
1982); Carey Moore, Death Penalty Info. Ctr.,
https://deathpenaltyinfo.org/executions/execution-database/1481/carey-moore (last visited Mar. 4, 2022).11
Likewise, Florida authorized electrocution as its
sole method of execution until 2000. See Provenzano,
744 So. 2d at 415; Fla. Stat. § 922.10 (1997) (“A death
sentence shall be executed by electrocution.”). After
11
Nebraska courts have thus repeatedly rejected challenges to
death sentences because the method of execution authorized at
the time of sentencing was no longer permissible. See, e.g., State
v. Ryan, 845 N.W.2d 287, 297 (Neb. 2014) (“[I]f [the method is]
statutorily required (as it effectively is here), it would take some
time to adopt a new procedure; but in our view, that does not
affect the validity of the sentence, only the time it takes to carry
it out.”), disapproved on other grounds by State v. Allen, 919
N.W.2d 500 (Neb. 2018); State v. Torres, 812 N.W.2d 213, 241
(Neb. 2012) (“Put simply, the sentencing court always had the
authority to sentence Torres to death; the State’s enactment of a
new method of execution and its accompanying protocol simply
made it possible for the State to enforce that sentence.”); State v.
Ellis, 799 N.W.2d 267, 287-288 (Neb. 2011) (rejecting prisoner’s
argument that “he is not subject to the death penalty” and “must
be sentenced to life imprisonment because at the time of his sentencing, there was no valid method of punishment,” because the
“sentence was lawfully imposed” and “itself remains valid,” “although the sentence could not have been executed at that very
time”); State v. Vela, 777 N.W.2d 266, 317 (Neb. 2010) (“[F]or the
reasons discussed in Mata II, the constitutional infirmity in this
method of execution does not require that we disturb the death
sentences imposed in this case.” (footnote omitted)); State v.
Galindo, 774 N.W.2d 190, 214 (Neb. 2009) (“[Although] there was
no constitutional procedure to determine death eligibility in a
trial for first degree murder, it does not follow that Nebraska law
no longer provided for the death penalty as the maximum punishment at the time of [the prisoner’s] crimes.”); accord State v.
Dunster, 769 N.W.2d 401, 409 (Neb. 2009) (no assignment of error in postconviction challenge to electrocution because “electrocution is no longer the method of execution under Nebraska law,”
so prisoner “is no longer subject to electrocution”).
18
Florida switched to lethal injection, prisoners condemned under the old regime were not resentenced.
As in Georgia and Nebraska, they were executed by
lethal injection. See, e.g., In re Provenzano, 215 F.3d
1233, 1235-36 (11th Cir. 2000) (per curiam); Execution
Database, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/executions/execution-database
(choose
“Florida” from dropdown; then select “start date” as
01/01/2000; then click “apply”) (showing all 55 prisoners executed by lethal injection after method
adopted).12
This history shows that both this Court and the
States consistently view the method of execution as
independent from the death sentence itself. Alterations to the execution method do not disturb the sentence of a prisoner condemned to die under the previous regime, and thus do not implicate the underlying
sentence itself. Accordingly, they are properly heard
under § 1983, not as petitions for habeas corpus—
whether or not state law currently authorizes one or
more methods of execution.
12
Tennessee, too, opted for lethal injection in 1998, and prisoners
sentenced to die by electrocution were subsequently executed by
lethal injection without resentencing. See, e.g., Johnson v. Bell,
457 F. Supp. 2d 839, 841-842 (M.D. Tenn. 2006). Alabama added
lethal injection in 2002 and did the same. See, e.g., Grayson v.
Dunn, 156 F. Supp. 3d 1340, 1350 (M.D. Ala. 2015), aff’d sub
nom. Brooks v. Warden, 810 F.3d 812 (11th Cir. 2016); Jones v.
Allen, 483 F. Supp. 2d 1142, 1143 (M.D. Ala.), as clarified (Apr.
20, 2007), aff’d, 485 F.3d 635 (11th Cir. 2007).
19
II.
SECTION 1983 IS WELL-SUITED TO
RESOLVE
METHOD-OF-EXECUTION
CHALLENGES.
A. Section 1983’s Flexibility Facilitates the
Efficient Resolution of Method-of-Execution Challenges.
Section 1983 provides a superior avenue for adjudicating method-of-execution claims. Such claims accrue “when the plaintiff has ‘a complete and present
cause of action.’ ” Wallace v. Kato, 549 U.S. 384, 388
(2007) (quoting Bay Area Laundry & Dry Cleaning
Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192,
201 (1997)). For a prisoner challenging an execution
method, that “complete and present” requirement ensures that the prisoner brings such a claim only when
the execution method is settled and the prisoner
knows or should know that the method presents a
problem. See Siebert v. Allen, 506 F.3d 1047, 1048-49
(11th Cir. 2007) (per curiam) (recognizing that
knowledge of underlying medical conditions, and thus
“factual predicate” for claim, was “in place” upon diagnosis). Where, as here, the claim turns on the interaction of the method with the prisoner’s health status
at the time of execution, the claim may not ripen until
the execution is imminent. Section 1983 allows such
claims to be brought when they are ripe—whenever
that may be.
Because habeas petitions, by contrast, challenge the
legality of the conviction and sentence itself, prisoners
must usually file them within a year of the criminal
judgment becoming final—years, sometimes decades,
before a warrant issues for their execution. A
method-of-execution claim brought at that time runs
the risk of being dismissed as unripe, especially where
20
it turns on an individual’s health status, which by definition can change over time. See, e.g., Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997) (habeas petitioner’s Eighth Amendment challenge to execution by
lethal gas “not ripe for review” where petitioner had
“not yet chosen lethal gas as the method of execution
to be used”); Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d
1257, 1261 (11th Cir. 2009) (per curiam) (recognizing
that habeas petitioner’s Eighth Amendment challenge
to execution method “was not ripe at the time he filed
his first habeas petition in 1989 because the state did
not use that method of execution at that time”).
And a prisoner’s health is not the only variable subject to change; state law can change, too. Thus, even
assuming a method-of-execution challenge could be
instituted before a warrant issues, States can, and do,
change their execution methods. If the challenge
must proceed by habeas, such changes in law or
health may create the need for a second, successive
habeas petition—with no guarantee that that petition
will be heard.13 See infra pp. 22-23 (discussing In re
Provenzano, 215 F.3d at 1235).
While § 1983 suits are not as rigidly bounded as habeas petitions, thus providing flexibility to file claims
when they actually arise, other limits on § 1983 curb
meritless litigation. See Nelson, 541 U.S. at 650
(“[T]he ability to bring a § 1983 claim, rather than a
13
The circuit split as to whether method-of-execution claims
qualify as exceptions to the rule barring successive petitions is
the subject of the second question presented in this case. Amici
limit their brief to the first question presented, which, if resolved
in Petitioner’s favor, would moot the second question. But if the
Court were to disagree and channel method-of-execution claims
through habeas, it should ensure that such claims are not foreclosed.
21
habeas application, does not entirely free inmates
from substantive or procedural limitations”). The
Prison Litigation Reform Act (PLRA), for one, limits
prisoners’ ability to bring § 1983 claims by imposing
“constraints designed to prevent sportive filings in
federal court,” like administrative exhaustion requirements. Skinner, 562 U.S. at 535; see id. at 535-536
(explaining how various provisions of the PLRA “discourage prisoners from filing claims that are unlikely
to succeed” (quoting Crawford–El v. Britton, 523 U.S.
574, 596-597 (1998)).
Section 1983 claims are also subject to the statute of
limitations for personal-injury torts of the State in
which the cause of action arose—often two years.
Wallace, 549 U.S. at 387.14 Additionally, “[t]he doctrine of res judicata or claim preclusion bars relitigation of a § 1983 claim if the prior judgment was a final
judgment on the merits rendered by a court of competent jurisdiction, and if the same cause of action and
the same parties or their privies were involved.”
Bucklew, 883 F.3d at 1090 n.2 (citation omitted).
Section 1983’s statutory scheme thus allows prisoners to raise method-of-execution challenges, if any,
when they ripen—which may occur long after the
criminal judgment and based on changing
14
For example, when J.W. Ledford brought a § 1983 challenge to
lethal injection, rather than converting the complaint into an application to file a successive habeas petition, the Eleventh Circuit
affirmed the district court’s dismissal on the merits as timebarred and for failure to state a claim. See Ledford v. Comm’r,
Georgia Dep’t of Corr., 856 F.3d 1312, 1318-19 (11th Cir. 2017);
see also Alderman v. Donald, 293 F. App’x 693, 694 (11th Cir.
2008) (per curiam) (same).
22
circumstances—but not without appropriate limits to
curtail unnecessary litigation.
B. Section 1983 Ensures Timely Federal Review of Method-of-Execution Challenges.
Proceeding under § 1983 also ensures that prisoners
can present the substance of their claims in federal
court. Any challenge, including to an execution
method, that does not implicate the underlying validity of the death sentence itself may proceed by § 1983.
That rule is easy for litigants to understand and for
courts to apply. By looking at a complaint, the district
court can quickly determine whether the prisoner contests the State’s method of execution, cognizable under § 1983, or whether the complaint challenges the
death sentence itself, cognizable only in habeas.
The Eleventh Circuit, by contrast, would require
courts to parse complicated questions unrelated to the
merits of prisoners’ claims, potentially threatening
the right to federal court review that § 1983 was enacted to guarantee. Its position would in most cases
shut the courthouse doors to the very claims this
Court greenlighted in Bucklew.
Take, for example, Thomas Provenzano, who was
sentenced in 1984 to death by electrocution—the sole
method authorized under Florida law at the time.
Provenzano, 744 So. 2d at 415. The district court denied Provenzano’s petition for a writ of habeas corpus
seeking relief from conviction and sentence, and the
Eleventh Circuit affirmed. Provenzano v. Singletary,
148 F.3d 1327 (11th Cir. 1998). Provenzano then
sought the Eleventh Circuit’s permission to file a second habeas petition challenging Florida’s electrocution protocol, which the court denied for failing to
23
raise a new factual predicate.15 In re Provenzano, 179
F.3d 1326, 1326-27 (11th Cir. 1999) (per curiam) (citing 28 U.S.C. § 2244(b)(2)(B)).
Shortly thereafter, following a highly publicized
botched electrocution, Florida approved lethal injection as an alternative execution method. See Provenzano, 744 So. 2d at 440-444 (Shaw, J., dissenting).
Provenzano sought permission to file a habeas petition challenging Florida’s new lethal injection protocol. In re Provenzano, 215 F.3d at 1235. But even
though the “factual basis” of the claim “was not available to Provenzano at the time he filed his first federal
habeas petition, because at that time Florida did not
use lethal injection as the means of execution,” the
Eleventh Circuit concluded that the petition was successive and thus barred for failing to meet an exception. Id. at 1235-36. Provenzano was executed by lethal injection the same day—without ever having a
federal court consider his method-of-execution claim
on the merits. Thomas Provenzano, Death Penalty
Info. Ctr., https://deathpenaltyinfo.org/executions/execution-database/647/thomas-provenzano (last visited
Mar. 4, 2022).
The Eleventh Circuit’s position would also require
courts to resolve complicated jurisdictional questions,
even in cases easily dismissed on the merits. See Steel
Co., 523 U.S. at 101 (rejecting “hypothetical jurisdiction” doctrine). Because district courts may not hear
successive habeas petitions in the first instance, district courts would have to resolve several difficult
non-merits issues just to establish their jurisdiction.
15
Provenzano filed his petition before case law clarified that
method-of-execution claims are cognizable under § 1983.
24
First, the district court would have to deduce the authorized methods of execution under state law—requiring a determination of what even constitutes state
law. Accord In re Fed. Bureau of Prisons’ Execution
Protocol Cases, 955 F.3d 106, 112 (D.C. Cir. 2020) (per
curiam) (three-judge panel disagreeing as to whether
state law encompassed “only the top-line choice
among execution methods, such as the choice to use
lethal injection instead of hanging or electrocution”
(Katsas, J.), or “execution procedures set forth in state
statutes and regulations, but not execution procedures set forth in less formal state execution protocols” (Rao, J.)), cert. denied sub nom. Bourgeois v.
Barr, 141 S. Ct. 180 (2020).
Second, the district court would have to carefully analyze the complaint to determine whether it implicated the State’s ability to execute the prisoner under
any of the methods the court gleaned from its
state-law analysis. How the district court should balance that review with “the liberal pleading standards
set forth by Rule 8(a)(2)” is unclear. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). And if the
district court determines that the suit does “effectively
contest the validity of [the] sentence,” Pet.App.20a,
and thus transforms into a habeas petition, the court
must then decide whether it qualifies as a second or
successive habeas petition, which would necessitate
dismissal or transfer to the court of appeals to seek
permission to file. See 28 U.S.C. § 2244(b)(3). Only
after clearing these hurdles could the district court
proceed to consider the prisoner’s method-of-execution
challenge on the merits.
For cases relegated to habeas under the Eleventh
Circuit’s approach, state procedural rules create further complications. For example, some States do not
25
allow prisoners to raise method-of-execution challenges in state postconviction or habeas proceedings
because such claims “even if meritorious, would not
render the judgment void or voidable, as [state law]
requires.” Ryan, 845 N.W.2d at 295; see also id. at 296
(“[R]egardless [of] what the U.S. Supreme Court has
intimated in Nelson and Hill, we continue to adhere
to the view that a method-of-execution claim cannot
be considered an attack on the sentence itself.”); State
v. Moore, 718 N.W.2d 537, 544 (Neb. 2006) (prisoner
had “not alleged grounds for relief under the Nebraska Postconviction Act” because his “electrocution
procedure challenge would not constitute grounds for
setting aside his sentence of death”); Owens v. Hill,
758 S.E.2d 794, 799 (Ga. 2014) (method-of-execution
challenges not cognizable in state habeas).
These state rules increase the risk that prisoners
will be left without recourse to pursue method-of-execution claims in federal court. See Martinez v. Ryan,
566 U.S. 1, 9 (2012) (“[A] federal [habeas] court will
not review the merits of claims, including constitutional claims, that a state court declined to hear because the prisoner failed to abide by a state procedural
rule.”). For example, when Carey Moore (the individual Nebraska most recently executed) challenged Nebraska’s planned execution method in state postconviction proceedings, the Nebraska Supreme Court
held that his failure to raise the claim on direct appeal
was a “procedural default” that precluded consideration of Moore’s constitutional claims. Moore, 718
N.W.2d at 542. Moore’s subsequent federal habeas
petition also challenged the execution method, but the
district court held that the claim was “subject to procedural default” given the state court’s decision.
Moore v. Kinney, 119 F. Supp. 2d 1022, 1039-40 (D.
26
Neb. 2000), aff’ d, 320 F.3d 767 (8th Cir. 2003) (en
banc). And because Moore “d[id] not even attempt to
demonstrate either cause or prejudice sufficient to excuse this default, or evidence of actual innocence,” the
claim was “barred and may not be considered by this
court.” Moore, 119 F. Supp. at 1040 (citations omitted).
These difficulties have no easy solution, as the doctrines of exhaustion and procedural default are
“grounded in concerns of comity and federalism.”
Coleman v. Thompson, 501 U.S. 722, 730 (1991); see
Castille v. Peoples, 489 U.S. 346, 349 (1989). And they
invite subsequent litigation asking this Court to preserve prisoners’ opportunities for federal court review.
This Court need not and should not invite such procedural headaches. Section 1983, the traditional vehicle for method-of-execution challenges, amply suffices and preserves federal review.
CONCLUSION
For these reasons, and those in Petitioner’s brief, the
judgment of the United States Court of Appeals for
the Eleventh Circuit should be reversed.
Respectfully submitted,
Catherine E. Stetson
Dana A. Raphael
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
cate.stetson@hoganlovells.com
David D. Cole
Counsel of Record
David C. Fathi
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 Fifteenth Street, N.W.
Washington, D.C. 20005
(212) 549-2611
dcole@aclu.org
27
Allison M. Wuertz
HOGAN LOVELLS US LLP
390 Madison Avenue
New York, NY 10017
Brian W. Stull
Cassandra Stubbs
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
201 W. Main Street,
Suite 402
Durham, NC 27701
John W. Whitehead
William E. Winters
THE RUTHERFORD INSTITUTE
109 Deerwood Road
Jennesa Calvo-Friedman
Charlottesville, VA 22911
Brandon J. Buskey
(434) 978-3888
AMERICAN CIVIL LIBERTIES
legal@rutherford.org
UNION FOUNDATION
125 Broad Street
New York, NY 10004
Sean J. Young
AMERICAN CIVIL LIBERTIES
UNION OF GEORGIA
P.O. Box 570738
Atlanta, GA 30357
Counsel for Amici Curiae
MARCH 2022
APPENDIX
APPENDIX A
_________
IN THE SUPERIOR COURT OF GWINNETT
COUNTY
STATE OF GEORGIA
_________
STATE OF GEORGIA
vs.
MICHAEL WAYNE NANCE a/k/a
MICHAEL WADE NANCE,
Defendant.
_________
CRIMINAL ACTION
FILE NO. 95-B-02461-4
_________
SENTENCE
In accordance with the Verdict received September
20, 2002, the Court hereby sentences the defendant,
MICHAEL WAYNE NANCE a/k/a MICHAEL WADE
NANCE, to death. MICHAEL WAYNE NANCE a/k/a
MICHAEL WADE NANCE, having been sentenced to
the punishment of death, the Court hereby specifies
the time period for the execution in the sentence pursuant to O.C.G.A. §17-10-34. MICHAEL WAYNE
NANCE a/k/a MICHAEL WADE NANCE shall be executed during the period of time that commences on
noon of October 24, 2002 and ends on noon of October
31, 2002.
IT IS SO ORDERED, this 20th day of September,
2002.
/s/ Michael C. Clark___
Michael C. Clark
(1a)
2a
Judge Superior Court
Gwinnett Judicial Circuit
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APPENDIX B
_________
IN THE SUPERIOR COURT FOR THE
COUNTY OF MURRAY, STATE OF GEORGIA
_________
STATE OF GEORGIA
vs.
J.W. LEDFORD, JR.
_________
INDICTMENT NO.
92-CR-4295
_________
DEATH SENTENCE
Whereupon, the jury in the above stated case having
returned the following verdict, “We, the jury, find the
defendant, J.W. Ledford, Jr., guilty and fix his punishment as death by electrocution. Thomas Grover
Lunsford, Foreman. This 14th day of November, 1992.
It is CONSIDERED, ORDERED AND ADJUDGED
by the Court that the defendant, J.W. Ledford, Jr., be
taken from the bar of this court to the common jail of
Murray County or to some other safe and secure place
under such guard and protection as may be deemed
necessary where he shall be safely and securely kept
until his removal therefrom to the custody of the Department of Corrections for the purpose of execution
of this sentence in the manner prescribed by law.
It is further ORDERED AND ADJUDGED by the
Court that during the time period of 12:00 noon, December 5, 1992 and 12:00 noon, December 15, 1992,
the defendant, J.W. Ledford, Jr., shall be executed by
the director of the Department of Corrections at such
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penal institution as may be designated by said director, and witnessed only by those persons provided by
law.
It is further ORDERED that the Sherriff of Murray
County, together with such deputies as he may deem
necessary, the number of guards to be approved by the
presiding judge or Probate Judge of said county, shall
convey and deliver the said J.W. Ledford, Jr. to the
Department of Corrections at such penal institution
as may be designated by said director not more than
20 days and not less than 2 days prior to the time fixed
herein for the execution of said condemned person.
And there delivered into the custody of said director.
And it is further ORDERED that the said defendant,
J.W. Ledford, Jr., on the day fixed herein between the
hours of 10:00 o’clock a.m. and 2:00 o’clock p.m. be by
the director of the Department of Corrections electrocuted at the time and place and in the manner herein
provided by law. And may God have mercy upon your
soul.
Signed this 14th day of November, 1992.
/s/ William T. Boyett__________________
JUDGE, MURRAY SUPERIOR COURT
PRESIDING
______________________
JACK PARTAIN
DISTRICT ATTORNEY
FILED IN OPEN COURT
This 14th day of November 1992
__/s/ Loraine Matthews__
C.S.C.
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APPENDIX C
_________
IN THE SUPERIOR COURT OF DOUGHERTY
COUNTY
STATE OF GEORGIA
_________
STATE OF GEORGIA
vs.
MARCUS RAY JOHNSON,
Defendant.
_________
Indictment No. 97-R-1723
_________
Judgement and Sentence of Death
Count I: Murder
The jury impaneled and sworn to try the
above-stated case having, on the 5th day of April,
1998, found the defendant, Marcus Ray Johnson,
guilty of malice murder beyond a reasonable doubt,
and on April 7, 1998, having returned a verdict fixing
the sentence at Death by electrocution, as provided by
law.
The Sheriff of Dougherty County, Georgia, together
with one deputy, or more, if in his judgment it is necessary, shall deliver the defendant to the Department
of Corrections at a State Correctional Institution designated by the time fixed in this judgment for the execution of the defendant by electrocution; and
It is further ordered that Marcus Ray Johnson be
put to death by electrocution in the manner prescribed
and as provided by law. The time period for the execution shall be seven days in duration, commencing at
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noon on May 11, 1998 and ending at noon on May 18,
1998.
So ordered this 7th day of April, 1998.
/s/ Herbert E. Phipps____________
Honorable Herbert E. Phipps
Judge, Dougherty Superior Court
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APPENDIX D
_________
IN THE SUPERIOR COURT OF BALDWIN COUNTY
STATE OF GEORGIA
_________
STATE OF GEORGIA
vs.
MARION WILSON, JR.
_________
CASE NUMBER 39249B
COUNT I : MURDER (MALICE)
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SENTENCE
The defendant, Marion Wilson, Jr., on the trial of the
above-stated case, at the October 1997 Term of this
Court, having been convicted of the charge and crime
of Murder, and the jury having recommended the
death penalty after finding one statutory aggravating
circumstance as shown by the verdict on the punishment phase as to Count I, and the defendant now being before the bar of this Court, and showing no cause
why the sentence of the Court, should not be pronounced:
IT
IS
CONSIDERED,
ORDERED
AND
ADJUDGED BY THE COURT that you, Marion Wilson, Jr., be taken from the bar of this Court, where
you now stand, to the common jail of Baldwin County,
Georgia, where you shall be safely kept and confined
until you shall be removed therefrom by the Official
and in the manner provided by law, and under the
terms and conditions specified by law, when you shall
be delivered to the Director of Corrections of the State
of Georgia for electrocution at such penal institution
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as may be designated by said Director. In such institution you shall be submitted to the penalty of death
by electrocution, as provided by law, between the
hours of 12:00 noon on the 1st day of December, 1997
and 12:00 noon on the 7th day of December, 1997,
AND MAY THE LORD HAVE MERCY ON YOUR
SOUL.
IT IS FURTHER ORDERED, that said execution be
done by the Warden of said penal institution or a deputy Warden thereof, who shall serve as executioner,
together with at least two assistants, in the presence
of two physicians to determine when death supervenes, and an electrician, a suitable guard, and if you
so desire, your counsel, relatives, and such clergyman
and friends as you may desire to have present.
SO PRONOUNCED AND ORDERED by the Court,
in open Court, this 7th day of November, 1997.
/s/ William A. Prior, Jr.__________
William A. Prior, Jr.
Judge, Superior Courts Ocmulgee
Judicial Circuit
/s/ Frederic D. Bright
Frederic D. Bright
District Attorney
Ocmulgee Judicial Circuit
FILED IN OFFICE THIS
7th DAY of November 1997
/s/ Wanda J. Chambers____
CHIEF DEPUTY CLERK
SUPERIOR COURT
BALDWIN CO. GEORGIA
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.