Respondents Brief — Michael Nance, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections, et al.
Supreme Court briefMar 28, 2022
Ask Donna
What actually matters in this document.
Text
No. 21-439
In The
Supreme Court of the United States
----------------------------------------------------------------------MICHAEL NANCE,
Petitioner,
v.
TIMOTHY C. WARD, COMMISSIONER,
GEORGIA DEPARTMENT OF CORRECTIONS, ET AL.,
Respondents.
----------------------------------------------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Eleventh Circuit
----------------------------------------------------------------------BRIEF FOR RESPONDENTS
----------------------------------------------------------------------BETH A. BURTON
Deputy Attorney
General
SABRINA D. GRAHAM
Senior Assistant
Attorney General
CLINT C. MALCOM
Assistant Attorney
General
CHRISTOPHER M. CARR
Attorney General
STEPHEN J. PETRANY
Solicitor General
Counsel of Record
ROSS W. BERGETHON
DREW F. WALDBESER
Deputy Solicitors
General
OFFICE OF THE GEORGIA ATTORNEY GENERAL
40 Capitol Square, SW, Atlanta, Georgia 30334
(404) 458-3408; spetrany@law.ga.gov
Counsel for Respondents
i
CAPITAL CASE
QUESTIONS PRESENTED
1. Petitioner Michael Nance asserts that he cannot be lawfully executed by lethal injection under the
Eighth Amendment. Georgia law requires that capital
inmates be executed by lethal injection. Given that
Nance’s suit would legally prevent his execution, are
his claims cognizable only in habeas?
2. Assuming Nance’s claims must be raised via
habeas petition, is such a filing a “second or successive
application,” 28 U.S.C. § 2244(b), when Nance already
litigated a habeas petition in federal court, seeking relief from the same judgment?
ii
TABLE OF CONTENTS
Page
Questions Presented ............................................
i
Table of Authorities .............................................
iv
Introduction .........................................................
1
Statement ............................................................
3
A.
Georgia’s Lethal Injection Procedures ......
3
B.
Nance Is Convicted of and Sentenced to
Death for Murdering Gabor Balogh During a Failed Bank Robbery ........................
5
Nance Challenges His Conviction and
Sentence (Including Lethal Injection) in
Direct and Post-Conviction Proceedings .....
6
Nance Files a § 1983 Complaint Seeking
to Enjoin His Execution.............................
8
C.
D.
E.
The Eleventh Circuit Dismisses Nance’s
Complaint as a Second or Successive Habeas Petition .............................................. 10
Summary of Argument ........................................ 10
Argument ............................................................. 14
I.
Because Nance Seeks to Prevent the Execution of His Capital Sentence, His Filing
Is Not Cognizable Under § 1983................ 14
A. Prisoners Cannot Use § 1983 to Prevent Execution of a Capital Sentence,
Because That Is a Challenge to Custody ...................................................... 15
iii
TABLE OF CONTENTS—Continued
Page
B. Nance’s Challenge Would Prevent the
Execution of His Capital Sentence, Regardless of Whether Georgia Could
Conceivably Impose a Different Punishment in the Future ......................... 21
C. Allowing Prisoners to Bar Execution
Via § 1983 Would Increase Gamesmanship, Not Reduce Confusion ......... 30
II.
Nance’s Filing Is Second or Successive Because It Seeks Relief from the Same Sentence He Already Challenged .................... 35
A. Habeas Petitions Are “Second or Successive” When They Seek Relief From
the Same Sentence as a Previous Petition, Even If They Include Previously
Unavailable Claims ............................. 36
B. Nance’s Filing Is Second or Successive
Even If His Claims Were Previously
Unavailable ......................................... 47
III.
The Courthouse Doors Will Remain Wide
Open for Habeas Petitioners, Nance Included ......................................................... 49
Conclusion............................................................ 52
iv
TABLE OF AUTHORITIES
Page
CASES
Allen v. McCurry, 449 U.S. 90 (1980) ............. 33, 50, 51
Banister v. Davis, 140 S. Ct. 1698 (2020) ........... passim
Baze v. Rees, 553 U.S. 35 (2008) ......................... passim
Boumediene v. Bush, 553 U.S. 723 (2008) ..................19
Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484
(1973) .......................................................................22
Bucklew v. Precythe, 139 S. Ct. 1112 (2019) ....... passim
Burton v. Stewart, 549 U.S. 147 (2007) .... 13, 45, 46, 47
Calderon v. Thompson, 523 U.S. 538 (1998) ......... 29, 43
Caplan v. Cameron, 369 F.2d 195 (D.C. Cir. 1966) .......17
Dawson v. State, 274 Ga. 327 (2001) ..........................28
Edwards v. Balisok, 520 U.S. 641 (1997) .......... 16, 22, 29
Ford v. Wainwright, 477 U.S. 399 (1986) ............ passim
Gomez v. U.S. Dist. Ct. for the N. Dist. of Cal., 503
U.S. 653 (1992) ........................................................32
Gonzalez v. Crosby, 545 U.S. 524 (2005)............... 39, 45
Harrington v. Richter, 562 U.S. 86 (2011) ..................31
Heck v. Humphrey, 512 U.S. 47 (1994).................... passim
Hill v. McDonough, 547 U.S. 573 (2006).... 11, 18, 24, 26
Hill v. Owens, 292 Ga. 380 (2013) ............................. 4
Holden v. Minnesota, 137 U.S. 483 (1890) ..................27
Humphrey v. Nance, 293 Ga. 189 (2013) ......................7
v
TABLE OF AUTHORITIES—Continued
Page
In re Bonner, 151 U.S. 242 (1894)...............................23
Magwood v. Patterson, 561 U.S. 320 (2010) ....... passim
McCleskey v. Zant, 499 U.S. 467 (1991) ......................43
Middlebrooks v. Parker, 22 F.4th 621 (6th Cir.
2022) ........................................................................30
Muhammad v. Close, 540 U.S. 749 (2004) ..................34
Murphy v. Nat’l Collegiate Athletic Ass’n, 138
S. Ct. 1461 (2018) ....................................................22
Nance v. Chatman, 571 U.S. 1177 (2014) .....................7
Nance v. Ford, 140 S. Ct. 2520 (2020) ..........................8
Nance v. Georgia, 549 U.S. 868 (2006)..........................7
Nance v. State, 272 Ga. 217 (2000) ........................... 5, 6
Nance v. State, 280 Ga. 125 (2005) ...............................7
Nance v. Warden, 922 F.3d 1298 (11th Cir. 2019) ..........8
Nance v. Warden, No. 1:13-cv-04279, 2017 WL
6597934 (N.D. Ga. Aug. 7, 2017) ..................... passim
Nelson v. Campbell, 541 U.S. 637
(2004) .............................................12, 14, 15, 26, 34
Neville v. Johnson, 440 F.3d 221 (5th Cir. 2006) ........32
New York v. United States, 505 U.S. 144 (1992) .........27
Obergefell v. Hodges, 576 U.S. 644 (2015) ..................20
Overton v. Bazzetta, 539 U.S. 126 (2003) ....................27
Owens v. Hill, 295 Ga. 302 (2014) ..............................50
Panetti v. Quarterman, 551 U.S. 930 (2007) ....... passim
vi
TABLE OF AUTHORITIES—Continued
Page
Parker Drilling Mgmt. Servs., Ltd. v. Newton,
139 S. Ct. 1881 (2019) ............................................39
Peyton v. Rowe, 391 U.S. 54 (1968) .............................16
Pizzuto v. Tewalt, 997 F.3d 893 (9th Cir. 2021) ..........32
Preiser v. Rodriguez, 411 U.S. 475 (1973)........... passim
Ramirez v. Collier, 595 U.S. ___, No. 21-5592
(Mar. 24, 2022) ................................................... 14, 18
Rhines v. Weber, 544 U.S. 269 (2005) .................. passim
Rose v. Lundy, 455 U.S. 509 (1982) ...................... 41, 42
Sale v. Haitian Centers Council, Inc., 509 U.S.
155 (1993) ................................................................42
Sanders v. United States, 373 U.S. 1 (1963) ......... 40, 41
Slack v. McDaniel, 529 U.S. 473 (2000) ...... 2, 38, 44, 45
Solid Waste Agency of N. Cook Cnty. v. U.S. Army
Corps of Eng’rs, 531 U.S. 159 (2001).......................37
State v. Ledford, No. 06CR001300, 2009 WL
10430994 (Ga. Super. Ct. May 22, 2009) ................29
Stewart v. Martinez-Villareal, 523 U.S. 637
(1998) .......................................................................47
Tennessee v. Garner, 471 U.S. 1 (1985) .......................16
Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257
(11th Cir. 2009)........................................................32
United States v. Mauro, 436 U.S. 340 (1978) .............17
United States v. Windsor, 570 U.S. 744 (2013) ...........20
Weaver v. Graham, 450 U.S. 24 (1981) .......................25
vii
TABLE OF AUTHORITIES—Continued
Page
Wilkerson v. Utah, 99 U.S. 130 (1878) ........................27
Wilkinson v. Dotson, 544 U.S. 74 (2005) ............. passim
Woo Dak San v. State, 7 P.2d 940 (N.M. 1931) ...........29
Woodford v. Garceau, 538 U.S. 202 (2003) ....... 2, 29, 43
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. VIII .......................... 6, 7, 13, 27, 32
STATUTES
28 U.S.C. § 2242 ..........................................................22
28 U.S.C. § 2243 ..........................................................22
28 U.S.C. § 2244 .................................................. passim
28 U.S.C. § 2254 .................................................. passim
28 U.S.C. § 2255 (1948) ...............................................40
42 U.S.C. § 1983 .................................................. passim
Antiterrorism and Effective Death Penalty Act
of 1996, Pub. L. No. 104-132, 110 Stat. 1214 .... passim
Ga. Code Ann. § 9-14-42 .............................................50
Ga. Code Ann. § 9-14-51 .............................................50
Ga. Code Ann. § 17-10-38 ............................. 1, 4, 21, 28
Ga. Code Ann. § 17-10-44 .............................................4
Ga. Code Ann. § 42-2-6 .................................................4
Ga. Code Ann. § 42-2-11 ...............................................4
viii
TABLE OF AUTHORITIES—Continued
Page
RULES
Fed. R. Civ. P. 59(e)................................................ 38, 42
Rules Governing Section 2254 Cases 9(b) (1976) ........41
OTHER AUTHORITIES
4 William Blackstone, Commentaries on the
Laws of England (1769) ..........................................27
Black’s Law Dictionary (10th ed. 2014) ............... 19, 37
Death Penalty—Execution By Lethal Injection,
2000 Ga. Laws 947 ....................................................3
Office of Planning and Analysis, A History of the
Death Penalty in Georgia, State of Georgia Department of Corrections (2015) ................................3
Webster’s New Collegiate Dictionary (8th ed.
1979) .................................................................. 19, 37
1
INTRODUCTION
Petitioner Michael Nance wants to stop his execution. And after decades of unsuccessful state and federal post-conviction review, he now wants to sidestep
the rigorous procedures of habeas law by labeling his
latest challenge a § 1983 complaint regarding Georgia’s “method of execution.”
Nance is mistaken. Where a prisoner seeks to bar
his execution, he seeks habeas relief. An execution is a
form of state-authorized custody, and this Court has
long held that where a prisoner challenges custody as
unlawful, § 1983 is unavailable. Preiser v. Rodriguez,
411 U.S. 475 (1973). If a claim challenges only the conditions of custody without seeking relief from custody—like claims for kosher food or better medical
care—then § 1983 is proper. But when a prisoner seeks
to establish the “unlawfulness of the State’s custody”
itself, only a habeas petition is available. Wilkinson v.
Dotson, 544 U.S. 74, 81 (2005). Here, Nance asserts
that any lethal injection would be unconstitutional,
and Georgia law requires that capital prisoners “shall
suffer [death] by lethal injection.” Ga. Code Ann. § 1710-38(a). If Nance succeeds, his execution would be unlawful, so he challenges the fact of custody.
In response, Nance relies on variations of a single,
remarkable argument. He reasons that, because the
Georgia legislature might be able to make his preferred punishment available (by enacting a statute allowing death by firing squad), he could theoretically be
executed someday, so he is not really challenging his
execution now. But that is not the test for whether his
2
lawsuit sounds in habeas. What matters is that if this
challenge were to succeed, Nance’s custodian could not
lawfully execute him now, so Nance seeks to prevent
his execution. After all, neither federal courts nor
Nance’s custodian have power to alter Georgia law.
Moreover, to allow Nance to evade habeas review—on
the theory that a State might statutorily change his
punishment—would erode basic principles of federalism. States have the sovereign power to define their
own punishments. Prisoners can challenge them, but
they cannot do so without complying with Congress’s
habeas statutes, which emphasize “comity, finality, . . .
federalism,” and respect for state sovereignty. Woodford v. Garceau, 538 U.S. 202, 206 (2003) (citation omitted).
Next, Nance’s recharacterized filing must be dismissed as a “second or successive habeas corpus application.” 28 U.S.C. § 2244(b). Nance’s petition seeks
relief from the same judgment as a previous filing,
Magwood v. Patterson, 561 U.S. 320 (2010), and it is not
a continuation of the previous filing, Slack v. McDaniel,
529 U.S. 473 (2000). Nance asks this Court to ignore
his previous federal habeas petition and declare his
current filing a “first” application because it raises
claims that were (supposedly) previously unripe, but
the Court should reject his offer to re-write the statute.
Besides, Nance’s claims were previously ripe, so he
would lose even on his own theory.
Nance repeatedly protests that unless the Court
creates an atextual exception for his filing, it will “close
the courthouse doors” for capital prisoners, Pet.Br.38,
3
but that is not remotely true. Prisoners can raise challenges to lethal injection in their first federal habeas
petition (as Nance, in fact, did), in state court (as Nance
also did), on certiorari to this Court (which Nance also
did), and elsewhere. What they cannot do is co-opt federal habeas law in service of yet another “dilatory tactic[ ] to prolong . . . incarceration and avoid execution.”
Rhines v. Weber, 544 U.S. 269, 277–78 (2005). The
Court should affirm the decision below.
STATEMENT
A. Georgia’s Lethal Injection Procedures.
Like all “States and the Federal Government,”
Georgia “has altered its method of execution over time
to more humane means.” Baze v. Rees, 553 U.S. 35, 40–
41 (2008). “From 1735 to 1924 the legal method of execution in Georgia was hanging,” which the General Assembly then abolished in favor of electrocution. Office
of Planning and Analysis, A History of the Death Penalty in Georgia, State of Georgia Department of Corrections (2015), http://www.dcor.state.ga.us/sites/all/files/
pdf/Research/Standing/Death_penalty_in_Georgia.pdf
(last visited Mar. 28, 2022). Electrocution remained the
statutorily prescribed punishment until 2000, when
Georgia adopted lethal injection, as every State had
done or would do. See Death Penalty—Execution By
Lethal Injection, 2000 Ga. Laws 947; Baze, 553 U.S.
at 41.
While Georgia law specifically declares that “persons who have been convicted of a capital offense and
have had imposed upon them a sentence of death shall
4
suffer such punishment by lethal injection,” the procedures are left to the Commissioner and other administrative officials. Ga. Code Ann. § 17-10-38; id.
§ 42-2-6; id. § 42-2-11; Hill v. Owens, 292 Ga. 380, 380,
382 (2013); see also Ga. Code Ann. § 17-10-44. And
although the Commissioner has published the ordinary administrative procedures for executions, see
Georgia Dep’t of Corr. Lethal Injection Procedures,
CA11 Appendix at 35–57 (“Procedures”), they are not
regulatory or “legally-binding,” Hill, 292 Ga. at 389.
These (non-binding) protocols are flexible, similar
to procedures this Court has already affirmed as constitutional. Compare Procedures with Baze, 553 U.S. at
45. For instance, there are multiple options for preparing the prisoner for execution. The default is that the
IV team “provide[s] two (2) intravenous accesses.” Procedures at 4; cf. Baze, 553 U.S. at 45 (technicians established “both primary and secondary peripheral IV
sites”). But if “the veins are such that intravenous access cannot be provided, a Physician will provide access by central venous cannulation.” Procedures at 4.
“Central venous cannulation entails inserting a catheter into a central vein located either in the groin, or
above or below the clavicle.” Pet.App.95a. And if that
method does not succeed, the physician can use another “medically approved alternative.” Procedures at 4.
The execution itself is carried out with care. The
protocols call for the use of pentobarbital, along with
saline to “ensur[e] a steady, even flow.” Id. at 5; cf. Baze,
553 U.S. at 45 (execution team “flush[es]” the IV lines
with saline to “prevent clogging”). Throughout the
5
process, an “IV Nurse will monitor the progress of the
injection in the Execution Chamber.” Procedures at 5;
cf. Baze, 553 U.S. at 45–46 (warden and deputy warden
“watch for any problems with the IV catheters and tubing”). If the nurse observes any problems, he or she informs the physician, who decides whether “using an
alternative intravenous access is appropriate.” Procedures at 5. If, after a “sufficient time for death to have
occurred,” there are any “visible signs of life,” the injection procedure is repeated. Id.; cf. Baze, 553 U.S. at 45
(new dose administered if prisoner continues to show
signs of life).
B. Nance Is Convicted of and Sentenced to
Death for Murdering Gabor Balogh During a Failed Bank Robbery.
On December 18, 1993, Petitioner Michael Nance
stole an Oldsmobile and drove to the Tucker Federal
Savings & Loan. Nance v. State, 272 Ga. 217, 217
(2000). He entered the bank “wearing a ski mask and
gloves and carrying a .22 caliber revolver,” ordered the
bank tellers to stuff money into two pillowcases, and
declared: “I’m going to come back and kill you all if the
dye thing goes off.” Id. Nevertheless, the tellers included two dye packets with the money, and they did
indeed go off in the stolen Oldsmobile, “emitting red
dye and tear gas.” Id.
Nance abandoned the compromised vehicle and
ran to a nearby liquor store parking lot. Id. Gabor
Balogh was backing his car out of a parking space
when Nance “yanked open the front driver’s-side door.”
Id. Balogh “scream[ed]” and said “[n]o, no,” as Nance
6
shot him with the .22 caliber revolver. Id. at 218. Nance
then pointed his gun at a pedestrian and demanded car
keys. Id. When the man ran away, Nance fired another
shot; he missed. Id. The police apprehended Nance
soon after, but Balogh died before help could arrive. Id.
After trial, “a jury convicted [Nance] of malice
murder, felony murder, aggravated assault, theft by
taking, criminal attempt to commit armed robbery, and
possession of a firearm during the commission of a felony on September 26, 1997.” Nance v. Warden, No. 1:13cv-04279, 2017 WL 6597934, at *1 (N.D. Ga. Aug. 7,
2017). Based on two aggravating factors, the jury sentenced Nance to death. Nance v. State, 272 Ga. at 217.
C. Nance Challenges His Conviction and
Sentence (Including Lethal Injection) in
Direct and Post-Conviction Proceedings.
After sentencing, Nance embarked on a twentyyear journey to test the judgment against him, repeatedly raising challenges to lethal injection along the
way.
1. State Proceedings. Nance first moved for a
new trial and asserted, among various claims, that
execution by electrocution (at the time, Georgia’s
prescribed capital punishment) violated the Eighth
Amendment. Nance, No. 1:13-cv-04279, Doc. 13-30 at
9–10. The trial court denied the motion, but on appeal, the Georgia Supreme Court vacated Nance’s sentence because one juror should not have been qualified.
Nance v. State, 272 Ga. at 224. Nance was then resentenced: the jury returned a verdict that he be “sentenced to death by lethal injection,” and the judge
7
entered a sentence of death. Nance, No. 1:13-cv-04279,
Doc. 14-17 at 98–101. (Georgia had switched to lethal
injection in the interim.)
In the wake of his resentencing, Nance again
moved for a new trial, now challenging lethal injection
as unconstitutional under the Eighth Amendment.
Nance, No. 1:13-cv-04279, Doc. 16-16 at 10–11. Again,
Nance was rebuffed, and this time his sentence was
upheld on appeal. Nance v. State, 280 Ga. 125, 131–32
(2005). In rejecting his various claims, the Georgia Supreme Court specifically held that the State’s lethal
injection procedures were constitutional. Id. at 127.
Nance sought certiorari, again challenging the specific lethal injection drug protocol. Nance, No. 1:13-cv04279, Doc. 16-25 at 35–38, 42. This Court denied review. Nance v. Georgia, 549 U.S. 868 (2006).
Nance then turned to state post-conviction review.
His state habeas petition included claims that his trial
counsel were ineffective for failing to challenge the use
of lethal injection, “in part due to [Nance’s] history of
intravenous drug use,” and that execution by lethal injection was directly unconstitutional because of, inter
alia, “[Nance]’s own unique characteristics.” Nance,
No. 1:13-cv-04279, Doc. 17-43 at 12, 57. The trial court
vacated Nance’s sentence based on an unrelated ineffective assistance claim, but that ruling was overturned on appeal. Humphrey v. Nance, 293 Ga. 189, 190
(2013). This Court denied review. Nance v. Chatman,
571 U.S. 1177 (2014).
2. Federal Proceedings. With his state postconviction litigation concluded, Nance filed a federal
8
habeas petition under 28 U.S.C. § 2254. See Nance, No.
1:13-cv-04279, Doc. 1. Nance included an extraordinary number of claims, with over 80 variations on ineffective assistance of counsel, as well as claims of
misconduct by the prosecution, the jurors, and various
legal errors. Id. Nance again raised several claims of
error relating to lethal injection. Though not directly
raising an as-applied challenge to lethal injection, he
claimed his counsel were ineffective for “failing to argue that Georgia’s lethal injection protocols are unconstitutional, in part due to Petitioner’s history of
intravenous drug use.” Id. at 23. (Nance began regular
intravenous drug use in junior high school. Nance, 13cv-04279, Doc. 43 at 24, 29.)
Despite filing a 240-page brief in support of his petition, id., Nance failed to pursue his lethal-injection
claims and the district court deemed them abandoned,
Nance, 2017 WL 6597934, at *2. The district court denied his remaining claims and was affirmed on appeal.
Nance v. Warden, 922 F.3d 1298, 1307 (11th Cir. 2019),
cert. denied sub nom. Nance v. Ford, 140 S. Ct. 2520
(2020).
D. Nance Files a § 1983 Complaint Seeking
to Enjoin His Execution.
Nance next turned to 42 U.S.C. § 1983. In January
2020, Nance filed a complaint in federal court seeking
to enjoin his execution. Pet.App.103a. In his complaint,
Nance asserts that “around May 2019, a medical technician at the Prison” told Nance that to execute him by
lethal injection, the “execution team would have to cut
his neck” because they could not otherwise obtain
9
intravenous access. Pet.App.93a. And, supposedly, an
anesthesiologist told him that his forearms and “lower
extremities” lacked visible veins. Pet.App.94a.
Nance now claims that execution by lethal injection is unlawful as applied to him. He alleges that he
is at a high risk for “blown” veins if a normal IV procedure is used. Id. And if the State turned to the alternative method of central venous cannulation, Nance
alleges that it is a “complicated medical procedure”
which, “[i]f done incorrectly,” could result in a “torturous and botched execution.” Pet.App.95a. Nance
also asserts, “upon information and belief,” that the
State might alternatively try a “cutdown procedure,”
supposedly a “painful, bloody, and complicated medical
procedure that is rarely used by modern medical professionals.” Pet.App.96a. He next alleges that his use
of the drug gabapentin—which he has been taking
since 2016—might diminish pentobarbital’s effects such
that it fails to render him unconscious. Pet.App.96a–
97a. Finally, Nance takes issue with the execution protocols generally, including the length of tubing for injections, the secrecy in the sourcing of drugs, and
supposedly inappropriate monitoring. Pet.App.89a–
102a; but see Baze, 553 U.S. at 45–46.
Nance asserts that death by firing squad—unauthorized and never previously performed in Georgia—
is a “feasible and readily implemented” alternative to
lethal injection. Pet.App.101a. According to Nance, “[i]f
performed properly,” a firing squad would “eliminate
the substantial risk of severe pain.” Pet.App.102a
10
(emphasis added); but see Pet.App.95a (central venous
cannulation is problematic if “done incorrectly”).
E. The Eleventh Circuit Dismisses Nance’s
Complaint as a Second or Successive Habeas Petition.
The district court dismissed Nance’s complaint because it was untimely and he failed to state a claim,
Pet.App.47a, but on appeal, the Eleventh Circuit vacated and remanded with instructions to dismiss for
lack of jurisdiction, Pet.App.1a. The Eleventh Circuit
asked whether Nance’s complaint was actually a challenge to his sentence and thus not cognizable under
§ 1983. Pet.App.4a. After argument, the court held that
Nance’s complaint was properly a habeas petition,
since it “attacks the validity of his death sentence.”
Pet.App.19a. If successful, Nance’s challenge would
preclude execution, because state law requires lethal
injection. Pet.App.18a. And, since Nance had already
filed a federal habeas petition, his recharacterized
petition was barred by 28 U.S.C. § 2244 as second or
successive. Pet.App.19a–25a.
This Court then granted review of the questions
whether Nance’s complaint should be recharacterized
as a habeas petition and, if so, whether it is second or
successive.
11
SUMMARY OF ARGUMENT
The Eleventh Circuit held that Nance’s complaint
was properly a habeas petition and that it was “second
or successive.” The Court should affirm on both points.
Nance challenges state-authorized custody over him (a
core habeas concern, cognizable only in habeas) and he
does so after having fully litigated a federal habeas petition regarding the same judgment.
I. Nance’s filing is a habeas petition because he
seeks to prevent his state-authorized execution. Section 1983 does not provide a cause of action where a prisoner’s success would directly challenge or even “impl[y]
the unlawfulness of the State’s custody.” Dotson, 544
U.S. at 81. That kind of challenge must instead be filed
in habeas. Preiser, 411 U.S. 475. An execution is a form
of custody—that is, “physical restraint,” id. at 486—so
where a prisoner seeks to bar an execution, he challenges custody. That is true even if the capital sentence
is not vacated and even if circumstances could change
in the future to remove the legal bar to execution.
Nance contends that he can avoid habeas procedures because Georgia could theoretically change its
law and then the custodian could execute him, but this
argument fails. Whatever might conceivably happen
down the road, if Nance succeeds, his custodian could
not execute him because under “present law,” it would
be “unlawful[ ].” Hill v. McDonough, 547 U.S. 573, 583
(2006) (citation omitted). His custodian cannot change
Georgia statutory law. Nor can federal courts. They face
a binary choice: prevent the execution or not. Whether
a temporary bar or permanent, that is habeas relief.
12
Nance’s argument would also eviscerate States’
sovereign authority to define their own criminal punishments. Georgia has the right to define capital sentences with specificity: death by lethal injection rather
than simply death. If Nance wants to force Georgia to
impose a different punishment, he must at least proceed via habeas petition. Any other rule would be a
damaging blow to state sovereignty and undermine
Congress’s own habeas statutes.
Finally, channeling these claims to habeas would
reduce “pleading games” and confusion. Bucklew v.
Precythe, 139 S. Ct. 1112, 1128 (2019). If the execution
can lawfully “proceed . . . as scheduled” at the end of a
successful prisoner challenge, Nelson v. Campbell, 541
U.S. 637, 646 (2004), it is a § 1983 action. If not, it is a
habeas action. In addition to being correct, that rule is
easily administrable and will reduce incentives to seek
delay for delay’s sake.
II. Because it is a habeas petition, Nance’s filing
must be dismissed as “second or successive.” 28 U.S.C.
§ 2244(b). Second-in-time habeas petitions are “second
or successive” unless they seek relief from a different
judgment than an earlier petition or they are a continuation of the previous petition. Nance’s filing does not
satisfy either of those conditions, so he asserts an erroneous theory that previously unavailable “claims” are
not “second or successive.”
The text, history, and purposes of § 2244(b), as well
as this Court’s cases, reject Nance’s theory. Section
2244(b) bars second or successive “applications,” not
claims, so examining claims for previous availability
13
already asks the wrong question. Indeed, § 2244(b) exempts second or successive applications that include
certain previously unavailable claims, which would be
pointless if previously unavailable claims were generally exempted. This Court, also, has specifically held
that previously unripe claims do not transform an application into a first application. Burton v. Stewart, 549
U.S. 147 (2007). Nance points to Panetti v. Quarterman,
551 U.S. 930, 945 (2007), but that decision carved out
a narrow exception to § 2244(b) in the “unusual” case
where a petitioner raises a Ford incompetency claim.
Those claims are categorically unripe until execution
is imminent. Id. at 946. That exception does not remotely describe Nance’s filing here, and the Court
should not undermine the text of § 2244(b) by extending Panetti.
III. Though Nance repeatedly contends otherwise, the courthouse doors remain wide open to legal
challenges of all varieties. At stake is not the Eighth
Amendment, but where to file certain Eighth Amendment claims. Nance does not like the consequences
of following habeas procedures. He wants as many
chances as possible to attack his execution in federal
district court. But Congress’s habeas statutes were designed to reduce delays and shunt claims first to state
court. If Nance is “interested in avoiding unnecessary
pain,” he has numerous ways to do so (and has availed
himself of many of them). Bucklew, 139 S. Ct. at 1129.
This Court should not accept his clear attempt to instead prevent or “delay[ ] his execution.” Id.
14
ARGUMENT
I.
Because Nance Seeks to Prevent the Execution of His Capital Sentence, His Filing
Is Not Cognizable Under § 1983.
For a half century, this Court has recognized that
prisoners who seek to challenge state-authorized custody in federal court must do so through a habeas
corpus petition. Preiser, 411 U.S. 475. Prisoners can
challenge the conditions of otherwise valid custody
through § 1983. But challenges to the fact of custody
are reserved for habeas. Execution is a form of custody,
so while a prisoner can complain about the administrative details of his prospective execution under
§ 1983, he cannot seek to prevent the execution altogether.
Yet that is what Nance seeks: if he succeeds, no
one can exercise this state-authorized custody (execution by lethal injection) over Nance. Unless the State
redefines its criminal punishments, the execution cannot legally “proceed.” Nelson, 541 U.S. at 646; cf., e.g.,
Ramirez v. Collier, 595 U.S. ___, No. 21-5592, slip op. at
19 (Mar. 24, 2022) (granting relief because “it is possible to accommodate Ramirez’s sincere religious beliefs
without delaying or impeding his execution”). Because
Nance would “terminate[ ]” his custodian’s legal right
to execute him, Dotson, 544 U.S. at 86 (Scalia, J., concurring), his challenge sounds in habeas.
15
A. Prisoners Cannot Use § 1983 to Prevent
Execution of a Capital Sentence, Because That Is a Challenge to Custody.
When a successful legal challenge “would necessarily prevent . . . execution,” Nelson, 541 U.S. at 647,
even if only temporarily, that challenge must proceed
in habeas. That is because the “exclusive remedy” for a
challenge to allegedly “illegal custody” is a habeas petition, and execution is a form of custody—a “physical
restraint” on liberty. Preiser, 411 U.S. at 486–87. By
contrast, § 1983, which has its roots in tort law, Heck v.
Humphrey, 512 U.S. 477, 483 (1994), is the appropriate
procedural vehicle for “claims that merely challenge
the conditions” of custody, Nelson, 541 U.S. at 643, 647.
So § 1983 would encompass a challenge to administrative details of the execution because prevailing on such
a challenge would still allow the execution—the exercise of custody—to “proceed.” Id. at 646. But § 1983 is
not appropriate for a challenge that would stop the execution altogether, for any length of time.
1. A challenge to state-authorized custody is a
habeas challenge. The Court first explained as much in
Preiser, where the Court held that challenges to the
deprivation of “good-conduct-time” credits were not
cognizable in § 1983 because, if successful, the challenges would cut short the prisoners’ custody. 411 U.S.
at 476. The “specific” habeas statute must control over
the “general” language of § 1983 wherever the habeas
statute applies. Id. at 490. And while habeas corpus
has “evolved” over the years, its “traditional scope” includes challenges to “custody,” that is, allegations that
16
one is “unlawfully subjected to physical restraint.” Id.
at 485–87. Thus, Preiser explained, “[i]t would wholly
frustrate explicit congressional intent” to allow state
prisoners to evade habeas procedures (like exhaustion
requirements) “by the simple expedient of putting a
different label on their pleadings.” Id. at 489–90.
This Court would later expand the rule of Preiser
to include not only direct challenges to custody, but
even complaints for damages or other relief that would
“necessarily impl[y] the unlawfulness of the State’s
custody.” Dotson, 544 U.S. at 81 (emphasis added). For
example, a prisoner cannot file a § 1983 action for damages where success would imply his criminal sentence
(and therefore his custody) was “invalid.” Heck, 512
U.S. at 486; see also Edwards v. Balisok, 520 U.S. 641,
648 (1997). In other words, a challenge that directly
seeks relief from custody or one that would only indirectly require relief from custody (by invalidating the
underlying authorization for custody) is a habeas challenge.
The Court has long recognized that the execution
of a capital sentence is a form of “custody” for these
purposes. See, e.g., Ford v. Wainwright, 477 U.S. 399
(1986) (granting relief in habeas proceeding on the basis that prisoner could not be executed if he was
mentally incompetent). Execution is a “restraint[ ] on
liberty.” Peyton v. Rowe, 391 U.S. 54, 58 (1968); cf. Tennessee v. Garner, 471 U.S. 1, 7 (1985) (“[T]here can be
no question that . . . deadly force” “restrains” someone).
And it is certainly a form of physical “punishment imposed” by the State. Edwards, 520 U.S. at 648.
17
Accordingly, the Preiser rule applies to challenges
that would legally prevent execution. Just as a prisoner may not seek “release” from prison outside of habeas, he may not seek “release” from execution outside
of habeas—that is, he may not “terminate[ ]” custody
by preventing it. Dotson, 544 U.S. at 86 (Scalia, J., concurring). Prevention of execution is directly analogous
to prevention of (or release from) imprisonment.
Since Preiser, Congress has only affirmed this understanding. Congress passed the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104132, 110 Stat. 1214, which precludes “dilatory tactics”
from state prisoners hoping to “prolong their incarceration and avoid execution,” Rhines, 544 U.S. at 277–78.
AEDPA provides detailed and specific procedures for
challenges to state-authorized “custody.” 28 U.S.C.
§ 2254(d). It would “wholly frustrate explicit congressional intent” to hold that state prisoners could avoid
AEDPA’s new and improved restrictions through the
clever use of labels. Preiser, 411 U.S. at 489. In short,
Congress has commanded that its habeas statutes apply to challenges that would prevent execution.
And even temporary relief from custody is habeas
relief. See, e.g., United States v. Mauro, 436 U.S. 340,
362 (1978) (government obtains “temporary custody”
over prisoner via habeas corpus ad prosequendum);
Caplan v. Cameron, 369 F.2d 195, 196 (D.C. Cir. 1966)
(reversing denial of habeas petition where detainee
sought temporary release). To cite an example in the
death penalty context, Ford claims are properly filed in
habeas, even though they do not foreclose execution
18
permanently. These claims seek to prevent execution
based on a prisoner’s mental incompetence, Ford, 477
U.S. 399, but prisoners may eventually regain competence. A Ford claim only temporarily restrains custody
in such cases; yet that makes it no less a habeas claim.
See SG.Br.14. Thus, a legal bar against a capital sentence, even if it allows the possibility of execution
someday, remains a habeas remedy.
To be sure, where a prisoner’s challenge would
cause only potential, “incidental delay” in implementing custody, it need not be filed in habeas. Hill, 547 U.S.
at 583. A prisoner can challenge administrative details
surrounding an execution (the type of drugs, or the
length of IV tubing, for instance) under § 1983, even if
there may be some “practical” delay in obtaining the
necessary drugs or replacing the IV tubing. Id. That is
because, whatever the administrative delay, there is no
“legal” bar to execution, id., so the prisoner’s custodian
retains authority to implement the sentence. Cf. Ramirez,
slip op. at 19. But where a federal court order would
bar custody, that is habeas relief, even if the prisoner
could conceivably be subject to custody again in the future.
2. Importantly, challenges that would legally bar
execution need not seek to vacate a conviction or sentence—simply preventing the custody is itself habeas
relief. Nance suggests otherwise, asserting that unless
a prisoner would need to be “resentenced,” his challenge does not logically implicate the “validity” of his
sentence. Pet.Br.27–28. Nance apparently believes
that because this Court held in Heck that a damages
19
action cannot “imply the invalidity” of a sentence,
Pet.Br.24 (citing Heck, 512 U.S. at 487), habeas reaches
only those challenges that require vacatur or resentencing. Not so.
To start, the Heck rule is an extension of Preiser,
not the other way around. The prisoner in Heck did not
directly challenge his custody, so § 1983 would have
been an improper tool only if the suit necessarily
sought to invalidate his sentence and thus ineluctably
lead to release from custody. 512 U.S. at 479–80. But
custody, not sentencing, is the linchpin. In many challenges to custody (like executive detention), there is
not even a sentence to vacate. See Preiser, 411 U.S. at
486 (providing examples); cf., e.g., Boumediene v. Bush,
553 U.S. 723 (2008). So the way to determine whether
a challenge sounds in habeas is to ask whether the
prisoner challenges the custodian’s legal right to exercise custody, not whether his sentence must be vacated.
Regardless, a challenge that would prevent execution is a challenge to the “validity” of the “sentence”
that authorizes that execution. Heck, 512 U.S. at 486–
87. It is a request for “relief ” from a state “judgment[.]”
Magwood, 561 U.S. at 334 n.9 (citation omitted). A
criminal sentence is not “valid” if it has no force. See,
e.g., Valid, Black’s Law Dictionary (10th ed. 2014) (“Legally sufficient”); Invalid, Black’s Law Dictionary (10th
ed. 2014) (“Not legally binding”); Invalid, Webster’s
New Collegiate Dictionary (8th ed. 1979) (“being without . . . force in . . . law”). Few would say, for instance,
that the Defense of Marriage Act is currently valid,
20
even though it is technically still on the books. It is invalid because it cannot be enforced. United States v.
Windsor, 570 U.S. 744, 775 (2013) (“The federal statute
is invalid.”); see also, e.g., Obergefell v. Hodges, 576 U.S.
644 (2015) (Majority refers at least eleven times to this
Court “invalidating” laws); id. at 687, 695, 696 (ROBERTS, C.J., dissenting) (repeatedly referring to decision
as “invalidating” state marriage laws); id. at 736
(THOMAS, J., dissenting) (referring to decision’s “invalidation of [state] laws”). Likewise, an unenforceable
sentence is invalid.
In other words, Nance has the inquiry backwards:
If a prisoner challenges the exercise of custody authorized by a state sentence, that is by definition a challenge to the validity of that sentence (whether or not
there must be a resentencing or vacatur). Preiser itself
proves the point. The prisoners in Preiser did not assert that their sentences had to be vacated or that they
needed to be resentenced. Whether they succeeded or
not, their convictions and sentences would remain
undisturbed. But if successful, they would have been
released from custody earlier, which meant their challenge sounded in habeas and was subject to exhaustion
under 28 U.S.C. § 2254. Preiser, 411 U.S. at 493. The
same is true where a prisoner seeks to prevent execution: that is a challenge to custody, and it must be filed
in habeas.
21
B. Nance’s Challenge Would Prevent the
Execution of His Capital Sentence,
Regardless of Whether Georgia Could
Conceivably Impose a Different Punishment in the Future.
Because Nance seeks to legally bar his execution,
his claim sounds in habeas. Georgia law declares that
prisoners under a “sentence of death shall suffer such
punishment by lethal injection.” Ga. Code Ann. § 1710-38(a). Nance’s complaint is likewise clear: he
seeks to “enjoin the Defendants from proceeding with
the execution of Mr. Nance by a lethal injection.”
Pet.App.103a. So Nance’s custodian cannot lawfully
execute Nance if the § 1983 suit succeeds. Whether
that legal bar is temporary or not, that should be the
end of the matter.
Nance and the United States contend otherwise.
In Nance’s view, he does not seek to prevent his execution because Georgia could pass new legislation to provide for a different punishment, like death by firing
squad. E.g., Pet.Br.26–29. Nance repeatedly asserts
that because he must “prove” that his execution “can
be carried out” in some fashion, his sentence would remain “valid” if he prevailed. Pet.Br.19, 20, 27. Likewise,
the United States asserts that Nance “would not foreclose implementation of the sentence even if [he] succeed[s].” SG.Br.18.
This argument cannot withstand scrutiny. First,
the question is not whether Nance might ever be subject to execution under different circumstances, it is
whether he seeks to bar his execution right now, which
22
he most certainly does. Nance’s custodian has the authority to execute Nance only by lethal injection. So the
custodian could not legally “implement[,]” SG.Br.18,
that “punishment” if Nance prevailed, Edwards, 520
U.S. at 648. Whether or not state law might change
someday, Nance would obtain at least a temporary reprieve from custody, which is core habeas relief. Second, Nance and the United States would cripple the
sovereign authority of States to define their own punishments. Nance and the United States argue as if
Georgia has imposed a sentence of death by any means
necessary, but Georgia has specifically chosen death by
lethal injection. Nance can challenge that punishment
as illegal, but he must satisfy AEDPA to do so.
1. To start, Nance seeks habeas relief because he
seeks at least a temporary legal bar against the exercise of custody. Nance’s supposition that Georgia can
change its laws to exercise custody rings hollow because neither federal courts nor Nance’s custodian can
change Georgia laws. Federal power must be exercised
“directly over individuals rather than over States.”
Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.
1461, 1476 (2018) (citation omitted). And the “writ of
habeas corpus” acts on “the person who holds [the prisoner] in what is alleged to be unlawful custody.”
Braden v. 30th Jud. Cir. Ct. of Ky., 410 U.S. 484, 494–
95 (1973); see also 28 U.S.C. §§ 2242–43. The custodian
(usually, the warden) has no power to change Georgia
statutes. Nor can federal courts edit state law. They
have no intermediate option to impose a different sentence, such as death by firing squad. Their authority
23
here is binary: they can legally prevent Nance’s execution or not. Since death by lethal injection is the only
form of capital custody that Nance’s custodian is authorized to exercise, he could not lawfully “carry out”
Nance’s capital sentence if Nance prevails. Pet.Br.28.
Nance would have successfully barred an exercise of
custody (whether temporarily or not), which is habeas
relief.
An example in the prison context illustrates the
point. Suppose a state court, as required by statute, imposes a sentence of ten years to be served at a specific
penal institution. If the prisoner contends that “he is
unlawfully confined in the wrong institution,” that is a
habeas challenge. Preiser, 411 U.S. at 486 (emphasis
added) (citing In re Bonner, 151 U.S. 242 (1894)). Because the State authorized only imprisonment in a particular penal institution, federal courts have only two
options: order the warden to release the prisoner, or
not. The custodian cannot imprison the inmate elsewhere, because he is not authorized to do that (nor
could a federal court order it), so this is a challenge to
custody. And it remains a habeas challenge even
though the State could alter its law to allow the prisoner to be imprisoned in a different facility. Cf.
SG.Br.19. Right now the prisoner seeks release.
The same is true here, where a federal court has
the binary choice of preventing Nance’s execution or
not. The hypothetical possibility of a change to state
law in the future does not alter what Nance asks for
now: relief from state-authorized custody. That is the
capital case equivalent of immediate release.
24
Put another way, Nance seeks to invalidate custody to a certainty, and he can only speculate as to
whether custody might become valid in the future.
Nance’s situation is thus the opposite of Dotson, on
which he relies. Pet.Br.29–30. In that case, the Court
held that a prisoner’s challenge to parole hearing procedures was not cognizable in habeas because it would
not necessarily affect his custody: maybe the prisoners
would achieve earlier parole at new hearings, maybe
not. Dotson, 544 U.S. at 82. Here, by contrast, the speculative portion is not whether Nance’s custody would
be invalidated, but only whether it might become valid
again at some point in the future, in the hypothetical
scenario in which Georgia alters its laws. Notably, in
Dotson, the Court examined current state law to understand what the custodial consequences would be, id.; it
did not speculate about whether Ohio might change its
parole hearing procedures. Cf. id. at 86 (Scalia, J., concurring) (conditional writs are valid habeas relief even
though a State might be able to fix errors in its custody
in the future).
Nance’s success would be qualitatively different
than a mere “practical,” administrative frustration,
like having to order new drugs or develop a different
type of injection procedure. Hill, 547 U.S. at 581, 583.
If Nance succeeds, his custodian would be legally
barred from executing Nance unless and until there
is a change in a sovereign State’s political consensus
on how to define capital sentences (possibly even requiring constitutional amendment). By any understanding,
Nance’s challenge would “foreclose implementation of
25
the sentence,” for at least some period of time (and
likely for good). SG.Br.18.1
It is not even clear that Georgia could change its
law as Nance desires. For instance, this Court has
held that switching to a “more humane” method of execution causes no federal ex post facto problem, but
switching to a less “humane” method might. Weaver v.
Graham, 450 U.S. 24, 32 n.17 (1981). Because States
seek the most humane methods available, switching to
an unchosen method (such as firing squad) will at least
raise ex post facto questions. Nance would thus have
federal courts not only unravel state sentencing law
but also preemptively decide ex post facto and other
federal challenges—all as a prelude to categorizing a
claim as § 1983 or habeas. That is not an exercise
courts should need to engage in. The question is not
what might happen someday, if circumstances change,
but what the legal effect of Nance’s challenge would be
as things currently stand.2
Nance and the United States repeatedly emphasize that
§ 1983 can be used to challenge state law, Pet.Br.29; SG.Br.16,
24, but no one has denied that. If Nance challenged a state statute
by, for instance, seeking greater medical care than current appropriations allow, he could file under § 1983 because those challenges would not prevent custody. Pet.Br.27. He would not be
released if successful. By contrast, if the State’s only lawful manner of execution is barred, the prisoner is necessarily “released”
from execution, at least for a time, which makes his challenge
sound in habeas.
2
Nance claims confusion as to whether state regulatory
law is relevant, or only statutory law. Pet.Br.21–22, 30 n.1. The
question is not implicated in this case, but it is worth noting that
regulatory law is still state law. Federal courts and Nance’s
1
26
Given these points, it is no surprise that the Court
has indicated that a challenge that would preclude execution under “present law” is likely a habeas challenge. Hill, 547 U.S. at 583. In Nelson, for instance, a
plaintiff challenged the use of a “cut-down procedure,”
and the Court held the challenge was cognizable in
§ 1983. 541 U.S. at 643, 645. But the Court emphasized
that “[n]o Alabama statute [nor any duly-promulgated
regulations] require[ ] use” of the challenged procedure, and that Alabama could thus have “proceed[ed]
with the execution as scheduled” if it simply used another viable, legal alternative. Id. at 646–47. Similarly,
in Hill, the Court emphasized that the prisoner’s
challenge would “not necessarily foreclose the State
from implementing the lethal injection sentence under
present law.” Hill, 547 U.S. at 583. But the Court anticipated that if a challenge would foreclose implementation of a sentence “under present law,” then
“recharacterizing [the] complaint as an action for habeas corpus might be proper.” Id. at 582–83. The
Court’s intuition was correct: where a prisoner seeks to
bar execution altogether, it is a habeas challenge.
2. Nance’s argument fails for another reason: it
would critically undermine States’ sovereign authority
to define their own punishments. Nance’s unjustified
assumption (and that of his amici) is that the punishment imposed by Georgia is simply “death,” which he
custodian can no more change that law than they can change statutory law (or constitutional law). By contrast, an execution that
departs from merely informal or administrative protocols is not
contrary to any state law, so a successful challenge to such protocols would not bar execution.
27
says Georgia could “implement[ ]” by some other
means. Pet.Br.28. But this argument disregards that
“it is a State’s prerogative to determine how it will punish violations of its law.” Overton v. Bazzetta, 539 U.S.
126, 140 (2003) (THOMAS, J., concurring). While the
State’s punishments must not violate federal law (e.g.,
the ex post facto bar or the Eighth Amendment), federal law does not affirmatively define state criminal
punishments. Id. In fact, the federal government cannot make or unmake state law. New York v. United
States, 505 U.S. 144, 178–79 (1992).
There has never been any question that States define their own criminal punishments. See, e.g., Holden
v. Minnesota, 137 U.S. 483, 496 (1890) (“Of course, if
the statute so requires, the court must, in its sentence,
fix the day of execution.”); Wilkerson v. Utah, 99 U.S.
130, 136 (1878) (where “the statute prescribe[s] the
mode of executing the sentence, it [is] the duty of the
court to follow it, unless the punishment to be inflicted
was cruel and unusual”). There might be a question as
to whether, at common law, a particular type of execution was necessarily embodied in each individual sentence. Compare 4 William Blackstone, Commentaries
on the Laws of England *179, *397–98 (1769) (a sheriff
that alters the method of execution commits a felony),
with Wilkerson, 99 U.S. at 137 (common law did not
necessarily require method to be included in sentence).
But there is no question that States can, by statute,
define precise sentences and punishments.
After all, States can have a “legitimate penological
reason” for deciding that a specific sort of sentence is
28
preferable to a more general category. Bucklew, 139
S. Ct. at 1125. A State might choose one-year sentences
in a specific prison rather than two-year sentences in
prison more generally. It might decide to impose
shorter terms of imprisonment but mandate fewer
privileges for the inmates. If a State makes those
choices, and a prisoner challenges the specified conditions, a federal court can grant release or not, but it
cannot rewrite the state punishment. Indeed, as these
examples show, doing so could undermine the State’s
entire sentencing scheme—a shorter sentence without
the State’s other specified conditions might not be tolerable for the State. Likewise, sovereign States might
believe that only a particular kind of execution is humane or have other justifiable reasons for choosing a
specific form of punishment. See, e.g., Dawson v. State,
274 Ga. 327, 328–36 (2001) (holding that electrocution
is unconstitutional under Georgia law).
Here, contrary to Nance’s assumption, Georgia
has made clear that its capital sentences are not
simply punishments of death by any means. Ga. Code
Ann. § 17-10-38(a); see also id. § 17-10-38(d) (defining
“participat[ion] in the execution of a death sentence”
as “selecting injection sites; starting an intravenous
line or lines as a port for a lethal injection device; prescribing, preparing, administering, or supervising injection drugs . . . ; inspecting, testing, or maintaining
lethal injection devices; or consulting with or supervising lethal injection personnel”). In fact, Nance’s jury
sentenced him to “death by lethal injection.” Nance, No.
1:13-cv-04279, Doc. 14-17 at 98–99. Even if the State
29
might be able to alter its laws to alter Nance’s punishment (and that is no guarantee), the result would be a
different “punishment,” Edwards, 520 U.S. at 648, and
potentially an amended sentence, cf. SG.Br.19 (citing
Woo Dak San v. State, 7 P.2d 940, 942 (N.M. 1931),
which holds that when the State changes its death
penalty statutes it “convert[s] . . . judgments of death
to be executed by hanging into judgments of death to
be executed by electrocution” (emphasis added)).3
At the very least, before demanding that the State
change its criminal punishments, federal courts must
apply AEDPA—otherwise they pay no respect to the
separate sovereignty of the States. Nance barely mentions AEDPA, and the United States never does. But it
would be “anomalous” to refuse to apply the Effective
Death Penalty Act because a prisoner asserts that a
State might, someday, change statutory (or, for that
matter, constitutional) law. The point of AEDPA is
greater “comity, finality, and federalism,” Woodford,
538 U.S. at 206 (citation omitted)—that is, greater respect for the “sovereign[ty]” of States, Calderon v.
Nance might argue that the judge’s sentencing order in this
case does not itself include the words “by lethal injection,” but
that cannot be dispositive. State courts go back and forth between
specifying that death occur “by lethal injection” or not, likely because it makes no difference, given state law. See, e.g., State v.
Ledford, No. 06CR001300, 2009 WL 10430994, at *1 (Ga. Super.
Ct. May 22, 2009) (“[T]he defendant . . . shall be put to death by
lethal injection.”). Unless States are to be subject to detailed sentence-writing requirements, federal courts have to take punishments as they find them in state law, without assuming that
States are indifferent to the aspects they have specified in their
statutes.
3
30
Thompson, 523 U.S. 538, 554–56 (1998). Yet Nance
would hold that he can legally halt the imposition of
his sentence, demand that the political consensus of
the “people and their representatives” change to allow
for a different form of capital punishment, Bucklew,
139 S. Ct. at 1123, and do so without going through
AEDPA, the whole point of which is to eliminate such
“dilatory tactics.” Rhines, 544 U.S. at 277. That cannot
be right, and it is not.
C. Allowing Prisoners to Bar Execution
Via § 1983 Would Increase Gamesmanship, Not Reduce Confusion.
To the extent policy arguments matter here, they
do not help Nance. Pet.Br.35–39. If there is any policy
concern, it is reducing “pleading games” by capital litigants, which is itself the source of almost all confusion
in post-conviction challenges. Bucklew, 139 S. Ct. at
1128. If Nance prevails, prisoners who could work
within a State’s laws to “avoid[ ] unnecessary pain,” id.
at 1129, will have every incentive to cast filings
broadly, to “delay . . . execution” altogether, Rhines, 544
U.S. at 277–78. Prisoners already make contradictory
arguments, in filing after filing, seeking “[d]elay for delay’s sake.” Middlebrooks v. Parker, 22 F.4th 621, 625
(6th Cir. 2022) (Thapar, J., statement respecting denial
of rehearing en banc) (prisoner challenged use of pentobarbital until it became unavailable, at which point
he demanded use of pentobarbital). The Court should
not encourage more of the same.
1. Directing these claims to habeas would help
cut back on procedural gamesmanship. See Bucklew,
31
139 S. Ct. at 1128. In Bucklew itself, the Court recognized the important state interests in implementing
criminal judgments, and the Court sought to avoid “increasing the delay and cost involved in carrying out executions.” Id. at 1128, 1133–34. For prisoners, delay is
often “the point.” Id. at 1128. Nance, for example,
waited until he was out of other litigation options before filing his putative § 1983 complaint, even though
he knew of his drug use for years prior (and raised numerous similar lethal injection claims previously).
Supra pp. 6–8.
Far from “vitiat[ing]” Bucklew, then, the proper
rule would vindicate it. Pet.Br.32; but see Pet.Br.20
(noting that Bucklew left this issue “unresolved”). The
Bucklew Court specifically recognized that the substantive pleading requirement for a challenge to execution is separate from the procedural vehicle that a
prisoner must use. See 139 S. Ct. at 1128. The point is
simply that when a prisoner seeks to nullify a stateauthorized punishment, it “intrudes on state sovereignty to a degree matched by few exercises of federal
judicial authority,” Harrington v. Richter, 562 U.S. 86,
103 (2011) (citation omitted), which is why AEDPA requires rigorous procedures before that happens. “Both
the State and the victims of crime have an important
interest in the timely enforcement of a sentence.”
Bucklew, 139 S. Ct. at 1133 (citation omitted). Nance
would add yet another layer of federal litigation (and
delay) onto death penalty cases, but that would undermine AEDPA and the countless decisions of this Court
rejecting such tactics, including Bucklew.
32
Of course, the Eighth Amendment reigns supreme,
Bucklew, 139 S. Ct. at 1128, and no one has suggested
otherwise, but see Pet.Br.3, 20, 23, 32, 38. Pleading the
substantive elements of a claim under Bucklew is no
greater “burden” just because it is governed by AEDPA.
Pet.Br.33. Prisoners can and do raise these types of
challenges in state court and on initial federal habeas
review—Nance himself raised similar lethal injection
claims in his post-conviction proceedings. See supra pp.
6–8. Nance suggests it could be difficult to raise claims
in a first federal habeas petition for lack of ripeness,
but that is wrong: when a judgment is final, the prisoner can challenge the State’s chosen type of execution.4 To be sure, in the rare cases where prisoners’
factual circumstances genuinely change late in the day,
AEDPA might bar a second federal habeas petition, 28
U.S.C. § 2244(b), but that is a general feature of
AEDPA, not unique to these claims, and prisoners will
still have access to courts, regardless. See infra Section
III.
Simply put, for inmates concerned with “avoiding
unnecessary pain,” it will be easy to craft an appropriate complaint or habeas petition. Bucklew, 139 S. Ct.
See Pizzuto v. Tewalt, 997 F.3d 893, 901–02 (9th Cir. 2021)
(challenge is ripe when method is set); Tompkins v. Sec’y, Dep’t of
Corr., 557 F.3d 1257, 1261 (11th Cir. 2009) (same); Neville v.
Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (“A challenge to a
method of execution may be filed any time after the plaintiff ’s
conviction has become final on direct review.”); see also Gomez v.
U.S. Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653, 654 (1992)
(challenge to method of execution “could have been brought more
than a decade” before actual scheduled execution date).
4
33
at 1129. Where they are more interested in “delaying
. . . execution,” it will not be so easy. Id. That is the
point. See Preiser, 411 U.S. at 489–90.
2. Nance’s contrary policy arguments, if anything, detract from his theory. He first harps on the
(non-existent) problem of States somehow manipulating their laws to force prisoners into habeas proceedings. Pet.Br.38. In Nance’s view, States might write
their statutes to include detailed execution procedures,
so that any challenge to a “method” is actually a habeas
challenge. Nance cannot show that this is a “problem”
at all. His worry reflects not real policy risks but an
unjustifiable “general distrust” of the States and state
courts. Allen v. McCurry, 449 U.S. 90, 105 (1980). Given
that States have spent centuries trying to humanely
carry out executions, Baze, 553 U.S. at 41–42, Nance’s
little-disguised contempt for States is ill-founded.
Nance also overlooks the key point that States define criminal punishments with more specificity only
when they have good reasons for doing so, since they
risk being unable to implement a sentence at all if
some small part of it is derailed. For example, if a State
statutorily requires a certain drug for execution and
use of that drug is enjoined, a prisoner would have nullified his sentence. States are not going to pass a raft
of laws to shunt challenges into AEDPA, only to have
the underlying sentences more easily invalidated.
In any event, Nance’s theory would not solve this
purported “problem.” Even under Nance’s theory,
States could enact statutes declaring that state sentences are dependent on and immediately vacated if
34
the details of a particular method are enjoined. See,
e.g., Muhammad v. Close, 540 U.S. 749, 754 (2004) (if,
as “a matter of state law or regulation,” a federal proceeding would “necessarily” result in reduction in custody, it is a habeas action). Of course, States do not do
that, for the same reason they do not write detailed execution procedures into their statutes; but they could do
what Nance decries, even if Nance were to prevail.
Nor will there be “confusion” about where to file.
Pet.Br.35–36. If, following a successful suit, the custodian can lawfully “proceed with the execution,” Nelson,
541 U.S. at 646, the challenge is cognizable in § 1983.
If not, it is a habeas petition. The United States raises
speculative concerns about “back-and-forth rerouting”
between state and federal court, SG.Br.22, but it cannot identify any real-world examples. Other than petitions specifically gerrymandered to create ambiguity,
there will be no confusion. And the Court should not
empower a kind of heckler’s veto by throwing up its
hands and declaring that, since clever defense counsel
might try to work around the law, prisoners need not
abide by it at all.
As a final point, anyone can dream up fanciful hypotheticals under the Preiser doctrine. The Court itself
has not denied that there can be difficult questions
about whether certain claims are cognizable in § 1983.
See, e.g., Heck, 512 U.S. at 487 n.7. But this case does
not present a difficult question. Depending on whether
Nance’s challenge is successful, the custodian can either (1) execute Nance or (2) not execute Nance. That
is the definition of a habeas challenge.
35
II.
Nance’s Filing Is Second or Successive Because It Seeks Relief from the Same Sentence He Already Challenged.
Congress provided in AEDPA for strict procedures
surrounding “second or successive” applications. 28
U.S.C. § 2244(b). To start, a petitioner must obtain
court-of-appeals authorization before even filing such
an application. § 2244(b)(3)(A). Then, even if authorized, almost all claims in such an application are
barred: the only allowable claims are those based on
(1) new constitutional law made retroactive by this
Court, or (2) new, previously undiscoverable factual evidence supporting actual innocence. § 2244(b)(1)–(2).
Nance did not obtain court-of-appeals authorization,
nor do his claims fit within those narrow exceptions, so
if his filing is “second or successive,” it is simply barred.
And there can be little doubt that Nance’s application is “second or successive.” The text, history, and
purposes of AEPDA, as well as this Court’s cases, establish that an application is “second or successive” if
it seeks relief from the same judgment as a previous
application and is not a continuation of that previous
filing. “In the usual case, a petition filed second in time
and not otherwise permitted by the terms of § 2244
will not survive AEDPA’s ‘second or successive’ bar.”
Panetti, 551 U.S. at 947.
Contrary to Nance’s theory, there is no open-ended
exception for filing “claims” that were previously “unripe.” Pet.Br.40. Nance wholly ignores the text of the
statute and tries to expand a narrow, “unusual” exception for mental-incompetence claims until it would
36
swallow the entire rule. Panetti, 551 U.S. at 945. This
would return habeas law to pre-AEDPA days, when the
abuse-of-the-writ doctrine held sway. But Congress
specifically eschewed that doctrine, and the Court
should similarly reject Nance’s invitation to ignore
§ 2244(b)’s bar against second or successive applications.
A. Habeas Petitions Are “Second or Successive” When They Seek Relief From
the Same Sentence as a Previous Petition, Even If They Include Previously
Unavailable Claims.
In AEDPA, Congress replaced the “more forgiving”
habeas doctrine of “abuse-of-the-writ” with a specific
statutory bar against “second or successive” applications. Banister v. Davis, 140 S. Ct. 1698, 1707 (2020).
This Court has looked to AEDPA’s text, Magwood, 561
U.S. at 331–32, its historical understanding, and
“AEDPA’s own purposes,” Banister, 140 S. Ct. at 1706,
to define the scope of “second or successive.” Those
sources, as well as this Court’s own cases, make clear
how § 2244(b) operates: an application is second or successive where it seeks relief from the same judgment
as a previous application and is not a continuation of a
previous application. Nance’s contrary theory, that
newly ripe claims are not second or successive, contradicts AEDPA and would subvert § 2244(b). That a filing contains a previously unavailable claim does not
transform an otherwise second or successive application into a first application.
37
1. Unlike Nance, who studiously avoids the actual statute, “[w]e begin with the text.” Magwood, 561
U.S. at 331. Section 2244(b) provides that a litigant
cannot file a “second or successive habeas corpus application under section 2254” unless he or she obtains authorization from the court of appeals. And even if
granted the right to file a second “application,” only a
few narrow classes of “claim[s]” can be considered.
§ 2244(b)(1)–(2).
The text and its statutory context make a number
of points immediately clear. To start, “[s]econd” and
“successive” are both broad terms denoting something
coming next or following an earlier event. Second, Webster’s New Collegiate Dictionary (8th ed. 1979) (“next
to the first in place or time”); Successive, Webster’s
New Collegiate Dictionary (8th ed. 1979) (“following in
. . . order”); Successive, Black’s Law Dictionary (10th
ed. 2014) (same). That is, something is “second or successive” if it comes after something else. To be sure, the
Court has “described” “second or successive” as a “term
of art,” Magwood, 561 U.S. at 332; cf. Pet.Br.40, but the
words themselves still retain meaning, cf. Solid Waste
Agency of N. Cook Cnty. v. U.S. Army Corps of Eng’rs,
531 U.S. 159, 171–72 (2001) (although defined by the
statute, “navigable waters” retains meaning of included words).
The context also establishes the relevant items of
analysis: applications and judgments, not particular
claims. Magwood, 561 U.S. at 334–35. “AEDPA uses
the phrase ‘second or successive’ to modify ‘application,’” not claim. Id. at 334. Likewise, an application is
38
second or successive if it follows a previous challenge
to the same judgment: § 2244(b) imposes limits on any
“habeas corpus application under section 2254,” which
is defined as an “application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of a State court.” § 2254(b)(1) (emphasis added);
Magwood, 561 U.S. at 332. Accordingly, an application
is “second or successive” if it follows a previous application that sought relief from the same judgment, regardless of the claims in the application.
Of course, a second-in-time filing is not a “second
or successive” application where it is merely a “continuation of the original proceeding.” Banister, 140
S. Ct. at 1710 (emphasis added). This follows from the
basic textual point that only a second “application” is
problematic—a second filing in support of the same application is not. The most obvious example is that appellate briefs or amended petitions are not “second or
successive” because they are part of one ongoing application (even though they raise claims challenging the
same judgment). Id. at 1705. Certain other procedural
tools are similar, like a Rule 59(e) motion, which is a
“further iteration[ ] of the first habeas application.”
Banister, 140 S. Ct. at 1705. And if a first application
is dismissed on procedural grounds (like failure to exhaust), the Court has treated a follow-on filing as part
of the same application. Slack, 529 U.S. 473.
The textual exceptions in § 2244(b)(2) shed further light. Even if a second-in-time filing includes
claims that were not previously available, it is still a
“second or successive” application. Any other reading
39
“would considerably undermine—if not render superfluous” the § 2244(b)(2) exceptions. Magwood, 561 U.S.
at 335. Those exceptions explicitly contemplate circumstances where “a petitioner cannot be said to have
had a prior opportunity to raise the claim,” id., including new factual predicates and new constitutional
rules. If such claims require an exception, that means
applications are necessarily “second or successive”
even if they include previously unavailable claims.
The text also implies a final point: the “label[ ]”
that a petitioner applies to a filing is not dispositive.
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). If a petitioner could simply relabel a filing, it would “circumvent[ ] AEDPA’s requirement that a new claim be
dismissed unless it relies on either a new rule of constitutional law or newly discovered facts.” Id. Thus, any
filing that presents “new claims for relief from a state
court’s judgment” can be considered an “application”
under § 2244. Id.
2. The history of the text confirms this analysis.
Congress took the term “second or successive” from
previous law: in particular, § 2244(b) “modifies” preAEDPA “abuse-of-the-writ” principles, Magwood, 561
U.S. at 337 (op. of THOMAS, J.). Congress replaced that
“more forgiving” equitable doctrine with a strict statutory bar. Banister, 140 S. Ct. at 1707. Because Congress
chose to pluck the phrase “second or successive” out
of pre-existing rules and cases, we assume Congress
meant to bring with it the previous understanding of
that term. Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1890 (2019) (“It is a commonplace
40
of statutory interpretation that Congress legislates
against the backdrop of existing law.” (citation omitted)); see also Banister, 140 S. Ct. at 1707 (examining
whether “courts” historically “viewed Rule 59(e) motions as successive” to determine whether they are
“second or successive” under § 2244(b)).
From the beginning, analysis of the “second or successive” nature of a petition was the first part of a
two-part test for whether a petitioner abused the writ.
As this Court has explained, that doctrine “distinguish[ed] between two questions: ‘[a] threshold inquiry
into whether an application is second or successive and
[a] subsequent inquiry into whether [to dismiss] a successive application’” as abusive. Banister, 140 S. Ct. at
1707 (quoting Magwood, 561 U.S. at 336–37) (emphasis added)). And the term “second or successive” was
historically used in its natural sense, to mean “subsequent” or “after.”
Congress first used the term “second or successive”
in 1948, with respect to federal prisoners under § 2255.
See 28 U.S.C. § 2255 (1948) (“The [federal] sentencing
court shall not be required to entertain a second or successive motion for similar relief on behalf of the same
prisoner.”). In Sanders v. United States, 373 U.S. 1, 17
(1963), the Court interpreted this provision to apply
“abuse of the writ” principles to federal prisoners, and
the Court was explicit that second-in-time applications
(even raising new grounds for relief ) were second or
successive: the government had to show that a “second
or successive application is abusive.” Id. In other
words, from its earliest use, “second or successive” took
41
its natural meaning: a second-in-time challenge, regardless of previously availability of claims. The Court
in Sanders blessed such filings if, for instance, there
was “an intervening change in the law,” but they were
still second or successive filings. Id.
Likewise, in 1966, Congress used the term “subsequent application” to codify the abuse-of-the-writ doctrine for state prisoners. Again, the text was explicit
that whether an application was “subsequent” was
merely the first step of the analysis, and the second
question was whether the applicant had “deliberately
withheld the newly asserted ground or otherwise
abused the writ.” 28 U.S.C. § 2244 (1966) (emphasis
added).
Starting in 1976, the Federal Rules for Habeas
Cases also used the phrase “second or successive,” and
in the same manner. Habeas Rule 9(b) provided that a
“second or successive petition may be dismissed” if it
failed to allege new grounds or “constituted an abuse
of the writ.” Rule 9(b) of the Rules Governing Section
2254 Cases (1976). Here too, cases addressing Rule
9(b) were clear that even applications containing previously unavailable claims were “second or successive,”
whether or not they were “abuses of the writ.” For instance, in Rose v. Lundy, 455 U.S. 509 (1982), the Court
held that petitioners cannot file “mixed” petitions (petitions with exhausted and unexhausted claims). Members of the Court disagreed as to whether a petitioner
who voluntarily dismisses his unexhausted claims and
proceeds to adjudication on his exhausted claims “risks
dismissal of [a] subsequent federal petition[ ]” as an
42
abuse of the writ. Id. at 521 (Op. of O’Connor, J.); id. at
532–33 (Brennan, J., concurring in part and dissenting
in part). But they all agreed it would be a second or
successive petition subject to abuse-of-the-writ analysis. See id.
“Few principles of statutory construction are more
compelling than the proposition that Congress does
not intend sub silentio to enact statutory language that
it has earlier discarded.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 168 n.16 (1993) (citation omitted). Nance tries to drag “abuse-of-the-writ” principles
back into play, but that makes no sense. Pet.Br.44. If,
for instance, Congress wrote a statute that referred to
“unreasonable seizures,” one would not assume that
Congress meant to refer to “unreasonable searches and
seizures.” Instead, one would assume precisely the opposite, since Congress deliberately omitted an aspect
of the phrase.
Nance argues that this Court approved the examination of previous “abuse-of-the-writ” cases in Banister, Pet.Br.41, but he misreads that case. The opinion
recognized, repeatedly, that § 2244(b) is more “stringent” than the (discarded) abuse-of-the-writ doctrine.
Banister, 140 S. Ct. at 1707. The Court looked to previous abuse-of-the-writ cases not because that doctrine
was controlling, but because, if a Rule 59(e) petition
was “second or successive,” you would expect at least
some of them to be dismissed, and yet they virtually
never were. Id. (“[I]f courts had viewed Rule 59(e) motions as successive, there should be lots of decisions
dismissing them.”). But that kind of analysis is
43
irrelevant here, because under abuse-of-the-writ
principles, by definition “previously unavailable”
claims would not have been dismissed. See McCleskey
v. Zant, 499 U.S. 467, 489 (1991) (petition is an “abuse
the writ” if it raises “a claim in a subsequent petition
that [petitioner] could have raised in his first” petition). So the fact that courts might not have dismissed
applications with previously unavailable claims shows
only that such petitions were not an abuse of the
writ—they were still second or successive.
3. To the extent this Court looks to “AEDPA’s
own purposes” and the “implications for habeas practice” in understanding the phrase “second or successive,” Banister, 140 S. Ct. at 1706 (citation omitted),
those considerations all lean one way. Enforcing
§ 2244(b)’s text as written furthers AEDPA’s goals of
“reduc[ing] delays,” as well as “comity, finality, and federalism.” Woodford, 538 U.S. at 206 (citation omitted).
As written, the text reduces “delays in the execution of state and federal criminal sentences, particularly in capital cases.” Id. Whether applications are
second or successive is a straightforward question:
Does the second-in-time filing regard the same judgment, and if so, is it a continuation of the earlier application? That simple analysis will rarely require
extended time and will promote “finality” and respect
for the “States’ sovereign power.” Calderon, 523 U.S. at
555–56 (citation omitted). Except in very rare cases,
determining whether the same judgment is at issue is
a one-minute exercise. And determining whether a filing is a continuation of a previous application usually
44
requires little more than looking at the past application to see if was dismissed on technical grounds.
Nance’s rule would undermine finality and bog
courts down in extensive analyses of new claims. If an
application’s “second or successive” status depends on
the previous availability of a claim, courts will have to
resolve a factual, jurisdictional dispute at the front end
of every habeas petition asserting a new claim. See
Burton, 549 U.S. at 153 (district courts lack jurisdiction
to entertain second or successive applications without
authorization from court of appeals). For instance, in
this case, before the district court could act on Nance’s
filing, it would have to determine whether Nance’s
claim was previously unripe, because otherwise, it
would be second or successive. Often, that would require jurisdictional discovery, not to mention briefing
and argument. An inquiry that should take a few
minutes will turn into a potentially months-long affair.
Filing such applications will inevitably become yet another strategy to “drag[ ]” proceedings “out indefinitely.” Rhines, 544 U.S. at 278.
4. Finally, this Court’s cases confirm that a filing
is “second or successive” when it challenges the same
judgment as, and is not a continuation of, a previous
petition. Nance tries to wring a different result out of
Panetti, but that decision does not do what Nance
wants.
The Court has been clear that it is applications
that are (or are not) “second or successive,” rather than
claims. See generally Magwood, 561 U.S. 320. For instance, in Slack, the Court rejected the notion that the
45
petitioner’s second-in-time filing (following dismissal
of a previous application for lack of exhaustion) could
raise only the newly exhausted claims. 529 U.S. at
487–88. “[W]hatever particular claims the [initial, dismissed] petition contained,” the second-in-time application was not second or successive, so the filing could
raise any claims. Id. at 488. (emphasis added).
The Court has also repeatedly held applications
to be “second or successive” when they raise new
claims, even if they were previously available. In Burton, 549 U.S. at 155, the Court unanimously held that
a habeas application was second or successive even
though it raised previously unripe claims. Likewise, in
Gonzalez, the Court held that a motion under Rule
60(b) that “assert[s a] federal basis for relief from a
state court’s judgment of conviction” is second or successive, even if it points to previously unavailable
claims. 545 U.S. at 530–32.
Nance lays all of his chips on Panetti, but that case
is, if anything, the exception that proves the rule. In
Panetti, the Court held that a specific category of
claims (incompetent-to-be-executed claims under Ford,
477 U.S. 399) were not subject to the “second or successive” bar if filed in an application “as soon as that claim
is ripe.” 551 U.S. at 945. The Court held that it did not
seem Congress intended to include this sort of claim
within the “second or successive” bar because it was a
class of claim that is categorically unripe until execution is “imminent.” Id. at 946. So without an exception,
applications containing Ford claims would virtually always be either unripe or “second or successive.” Id.
46
That analysis is textually questionable to begin
with, but regardless, Panetti does not stand for a rule
broader than Ford claims. Instead, the Court went out
of its way to limit its holding. It emphasized that Ford
claims are an “unusual” case. Id. at 945. In the “usual
case,” by contrast, a “petition filed second in time . . .
will not survive AEDPA’s ‘second or successive’ bar.” Id.
at 947. And few, if any claims share similar characteristics to Ford claims—namely, a category of claims that
are necessarily unripe until execution is imminent. See
supra p. 32 n.4 (method-of-execution claims ripe when
judgment is final and method is set). Indeed, because
Panetti provides a categorical rule for Ford claims
alone, it does not raise the administrability concerns
noted above. In petitions with Ford claims, the “ripeness” inquiry is binary: Is the execution imminent? If
so, the Ford claim is ripe. There need not be an avalanche of jurisdictional discovery across all cases.
This Court’s other cases confirm the narrow reach
of Panetti. To start, in Burton, this Court explicitly
rejected the notion that previously unripe claims
would transform a habeas petition into a “first” petition. 549 U.S. at 155; see also Panetti, 551 U.S. at 967–
68 (THOMAS, J., dissenting) (because Burton “unanimously rejected” this argument, Panetti “stands only
for the proposition that Ford claims somehow deserve
a special . . . exemption from the statute”). And in
Magwood, the Court reaffirmed that an application is
second or successive based on whether it is a distinct,
second-in-time challenge to the same judgment—no
matter what claims are included in the application.
47
561 U.S. 320. Justice Kennedy lamented that the
Court had “confin[ed] the holding of Panetti to the
facts of that case.” Id. at 350 (Kennedy, J., dissenting).
Likewise, Magwood rejected the viewpoint that
§ 2244(b) was somehow simply a return to the preAEDPA, abuse-of-the-writ days. 561 U.S. at 337–38.5
The clear, textual rule is that second-in-time applications challenging the same judgment are “second
or successive.” Nance would expand Panetti’s narrow
exception to abolish that rule. The Court should not let
him.
B. Nance’s Filing Is Second or Successive
Even If His Claims Were Previously Unavailable.
With the correct understanding of “second or successive” in place, Nance’s case is easy to decide. Nance
undisputedly seeks relief from the same 2002 judgment that he attacked in a prior federal habeas petition. Nor is Nance’s petition a “continuation” of what
came before—even Nance does not suggest otherwise. His previous application was not dismissed on
Nance suggests that if Panetti is not extended, habeas petitioners would have to file “unripe” method of execution challenges to preserve them. Pet.Br.44–45. That tactic would be neither
required nor permissible. Mixed petitions must be dismissed if
the prisoner wants to later file his unripe claims. Burton, 549 U.S.
147. To the extent that Stewart v. Martinez-Villareal, 523 U.S.
637 (1998), blessed an anomalous procedure in the context of Ford
claims, it shows only how exceptional Ford claims are. Either
way, Panetti overtook Martinez-Villareal, since there is now a
general exception for Ford claims, regardless of whether they
were earlier raised.
5
48
technical grounds; it was fully adjudicated. Even his
previous lethal injection claims were dismissed not because of a technical procedural failure but because he
failed to pursue them. Nance, 2017 WL 6597934, at *2.
So under the correct rule, Nance’s petition must be dismissed as second or successive.
And even assuming for the sake of argument that
Panetti might apply beyond Ford claims, it still could
not rescue Nance’s filing here. Nance argues his claims
were not previously ripe, but Panetti at most stands for
the idea that certain categories of claims are always
unripe until execution is imminent. That is not the
case for challenges to lethal injection.
Finally, although it should not be relevant, even
under Nance’s own rule his filing is still second or successive. If the Court were to extend Panetti to all
claims, it would be extending the rule that “[t]he statutory bar on ‘second or successive’ applications does
not apply to a . . . claim brought in an application filed
when the claim is first ripe.” Panetti, 551 U.S. at 947
(emphasis added). Nance’s claim, by contrast, was ripe
for years before he filed his dilatory complaint. Nance
has abused drugs through intravenous injections for
decades and has used gabapentin since at least 2016.
So even if the Court were to run roughshod over
§ 2244(b) and expand Panetti beyond its narrow confines, Nance will obtain no relief—his filing will eventually be dismissed as second or successive.
Of course, that will take time, and for “capital petitioners,” the delay is itself a form of relief, Rhines, 544
U.S. at 277–78. This Court need not countenance
49
that delay. Not for Nance, and not for the numerous
petitioners who will follow in his footsteps if Nance’s
tactics are approved.
III. The Courthouse Doors Will Remain Wide
Open for Habeas Petitioners, Nance Included.
Nance argues ad nauseam that the Eleventh Circuit’s decision would “close the courthouse doors to meritorious claims.” Pet.Br.38. Nothing could be further
from the truth. Both federal court and state court remain open to those who want to challenge their executions. But AEDPA has quite a bit to say about when,
where, and how a petitioner must file particular
claims.
As an initial matter, Nance himself has had numerous opportunities, over the course of two decades
of litigation, to raise challenges to lethal injection—
and he did so. Nance argued in state court that lethal
injection is generally unconstitutional, see supra p. 7,
that Georgia’s procedures are untrustworthy, id., and
that lethal injection would be a problem for him, specifically, due to his veins and “own unique characteristics,” Nance, No. 1:13-cv-04279, Doc. 17-43 at 12, 57. In
federal court, Nance asserted that his counsel were ineffective for failing to raise as-applied challenges to lethal injection and also argued that Georgia’s protocols
are too secretive. Id. Doc. 1 at 19, 23, 61–68. Nance is
the neon advertisement for how available courts are to
hear these challenges, including federal courts.
Nance evokes the specter of some late-breaking
factual change: maybe, somewhere, there is a litigant
50
who could not raise his claim in his federal habeas petition. Pet.Br.33–34. But prisoners retain—at least—
the ability to file in state court, with certiorari review
by this Court. Under Georgia’s state habeas statute, for
instance, inmates are subject to no statute of limitations if they are sentenced to death. Ga. Code Ann. § 914-42(c). Likewise, although Georgia generally bars
“subsequent petition[s]” for habeas relief, courts can
dispense with that requirement where the “grounds for
relief asserted . . . could not reasonably have been
raised in the original or amended petition.” Id. § 9-1451. Or, if Georgia courts ultimately decide to direct
these challenges to declaratory judgment proceedings,
inmates could raise their challenges in state superior
court. Cf. Owens v. Hill, 295 Ga. 302, 3067 (2014)
(where challenging the “choice of drug[s],” proper filing
is a declaratory action in state superior court). That
was precisely what the Kentucky inmates did in Baze,
553 U.S. at 46.6
Neither § 1983 nor habeas statutes create a system of perpetual supervision over state criminal judgments. The assumption underlying Nance’s arguments
about remedies is that “every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court.”
Allen, 449 U.S. at 103. But federal law “makes no
such guarantee.” Id. The Court and Congress have
If a prisoner alleges he has no access to state or federal
court, he can raise as-applied constitutional due process challenges. But the Court should not undermine ordinary habeas law
for fear of a scenario that will likely never occur.
6
51
“emphatic[ally] reaffirm[ed] . . . the constitutional obligation of the state courts to uphold federal law, and
. . . confidence in their ability to do so.” Id. at 105.
On top of all that, Nance can still challenge virtually any aspect of a State’s execution procedures via
§ 1983, so long as he does not seek to preclude the execution entirely. Georgia does not mandate any particular details regarding lethal injection, so Nance could
have suggested any feasible lethal injection protocol.
For example, Nance practically admits that central venous cannulation would be acceptable. All he can muster is that, if performed “incorrectly,” it could lead to
unnecessary pain. Pet.App.95a. Of course, that is true
of any execution procedure (including his preferred
method of firing squad). Similarly, Nance asserts that
gabapentin could selectively “diminish[ ]” pentobarbital’s effectiveness. Pet.App.96a–97a. Setting aside the
wholly speculative nature of that allegation, he could
have requested a higher dosage of pentobarbital or the
use of another drug, but instead he tries to use this
(speculative, implausible) claim to stop his execution
entirely. It is precisely such “dilatory tactics” that
AEDPA precludes. Rhines, 544 U.S. at 277.
*
*
*
States have no interest in causing unnecessary
suffering. To the contrary, throughout this nation’s history, they have displayed “an earnest desire to provide”
the most “humane” executions. Baze, 553 U.S. at 51. Of
course, for those who “oppose . . . capital punishment,”
no execution will “ever be acceptable.” Id. at 61. That is
no reason to create any atextual, ahistorical exceptions
52
to Congress’s habeas statutes, inviting the type of
“seemingly endless proceedings,” id. at 69 (ALITO, J.,
concurring), that Congress foreclosed.
CONCLUSION
The judgment of the court of appeals should be affirmed.
MARCH 2022
Respectfully submitted,
BETH A. BURTON
Deputy Attorney
General
SABRINA D. GRAHAM
Senior Assistant
Attorney General
CLINT C. MALCOM
Assistant Attorney
General
CHRISTOPHER M. CARR
Attorney General
STEPHEN J. PETRANY
Solicitor General
Counsel of Record
ROSS W. BERGETHON
DREW F. WALDBESER
Deputy Solicitors
General
OFFICE OF THE GEORGIA ATTORNEY GENERAL
40 Capitol Square, SW, Atlanta, Georgia 30334
(404) 458-3408; spetrany@law.ga.gov
Counsel for Respondents
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.