Amicus Curiae Brief — Michael Nance, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections, et al.

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.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE STATES OF TEXAS, ALABAMA,

ARKANSAS, ARIZONA, FLORIDA, IDAHO, INDIANA,

KENTUCKY, LOUISIANA, MISSISSIPPI, MONTANA,

NEBRASKA, OKLAHOMA, SOUTH DAKOTA AND

UTAH AS AMICI CURIAE IN SUPPORT OF

RESPONDENTS

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

KATHRYN M. CHERRY

Assistant Solicitor General

Counsel for Amici Curiae

[Additional counsel listed at end of brief]

QU E S TIO NS PR E S E NTE D

1. Whether a state capital inmate’s as-applied

method-of-execution challenge must be raised in a habeas petition instead of through a section 1983 action if

the inmate pleads an alternative method of execution not

currently authorized by state law.

2. Whether, if such a challenge must be raised in habeas, it constitutes a successive petition where the challenge would not have been ripe at the time of the inmate’s

first habeas petition.

(I)

TA BLE O F C O NTE N TS

Questions Presented ................................................ I

Table of Authorities .............................................. III

Interest of Amici Curiae.......................................... 1

Summary of Argument ............................................ 2

Argument.................................................................. 4

I. Petitioner’s Challenge to Georgia’s Only

Legally Adopted Method of Execution Is a

Challenge to His Sentence Which Must Be

Brought via Habeas...................................... 4

A. A state prisoner seeking to challenge

the validity of his sentence must do so

through habeas under AEDPA. ............ 5

B. A challenge to the validity of the only

method of carrying out an execution

challenges the validity of the sentence

itself. ...................................................... 10

II. Courts Are Perfectly Capable of

Addressing Method-of-Execution Claims in

Habeas. ........................................................ 18

Conclusion .............................................................. 23

(II)

TA BLE O F AU T HO R I TIE S

Page(s)

Cases:

Allen v. McCurry,

449 U.S. 90 (1980) ......................................................... 10

Baldwin v. Reese,

541 U.S. 27 (2004) ..................................................... 8, 11

Boyd v. Warden, Holman Corr. Facility,

856 F.3d 853 (11th Cir. 2017) ...................................... 13

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) .......................................... passim

Bucy v. Stroman,

No. A-15-CA-1040-SS, 2016 WL

4492195 (W.D. Tex. Aug. 23, 2016) ............................. 22

Calderon v. Thompson,

523 U.S. 538 (1998) ..................................................... 6, 9

Coleman v. Balkcom,

451 U.S. 949 (1981) ......................................................... 9

Cone v. Bell,

556 U.S. 449 (2009) ....................................................... 10

Cullen v. Pinholster,

563 U.S. 170 (2011) ......................................................... 9

DeLeon v. City of Corpus Christi,

488 F.3d 649 (5th Cir. 2007) ........................................ 19

Ford v. Wainwright,

477 U.S. 399 (1986) ....................................................... 12

Gomez v. U.S. Dist. Ct. for N. Dist. of Cal.,

503 U.S. 653 (1992) ......................................................... 1

(III)

IV

Cases—Continued:

Page(s)

Gregg v. Georgia,

428 U.S. 153 (1976) ......................................................... 6

Guillory v. Wheeler,

303 F. Supp. 2d 808 (M.D. La. 2004) .......................... 22

Harrington v. Richter,

562 U.S. 86 (2011) ......................................................... 16

Heck v. Humphrey,

512 U.S. 477 (1994) .............................................. passim

Hicks v. Swanhart,

No. 12-1633 (FLW), 2012 WL 6152901

(D.N.J. Dec. 10, 2012) .................................................. 22

Hill v. Florida,

546 U.S. 1219 (2006) ....................................................... 8

Hill v. McDonough,

547 U.S. 573 (2006) .............................................. passim

Hill v. State,

921 So.2d 579 (Fla. 2006) .................................... passim

In re Kemmler,

136 U.S. 436 (1890) ................................................. 17, 18

Mann v. Denton County,

364 F. App’x 881 (5th Cir. 2010) ................................. 19

McClish v. Nugent,

483 F.3d 1231 (11th Cir. 2007) .................................... 19

McGehee v. Hutchinson,

854 F.3d 488 (8th Cir. 2017) ........................................ 15

Middlebrooks v. Parker,

22 F.4th 621 (6th Cir. 2022) ............................... 9, 13, 14

Muhammad v. Close,

540 U.S. 749 (2004) ....................................................... 19

V

Cases—Continued:

Page(s)

Nelson v. Campbell,

541 U.S. 637 (2004) .............................................. passim

Preiser v. Rodriguez,

411 U.S. 475 (1973) ......................................................... 7

Rhines v. Weber,

544 U.S. 269 (2005) ....................................................... 22

Rutledge v. Pharm. Care Mgmt. Ass’n,

141 S. Ct. 474 (2020) ..................................................... 21

Santoro v. County of Collin,

No. 4:18-CV-00660-ALM-CAN, 2019

WL 5692186 (E.D. Tex. Aug. 16, 2019) ...................... 21

Smith v. Murray,

477 U.S. 527 (1986) ......................................................... 6

State v. Addison,

87 A.3d 1 (N.H. 2013) ................................................... 16

State v. Mata,

745 N.W.2d 229 (Nev. 2008) ........................................ 18

Stewart v. LaGrand,

526 U.S. 115 (1999) ....................................................... 19

Turner v. Commonwealth,

364 S.E.2d 483 (Va. 1988) ............................................ 16

Wilkerson v. Utah,

99 U.S. 130 (1878) ......................................................... 17

Wilkinson v. Dotson,

544 U.S. 74 (2005) ........................................................... 4

Williams v. Taylor,

529 U.S. 362 (2000) ......................................................... 5

Woodford v. Garceau,

538 U.S. 202 (2003) ......................................................... 5

VI

Cases—Continued:

Page(s)

Workman v. Bredesen,

486 F.3d 896 (6th Cir. 2007) ........................................ 18

Zurich Am. Ins. Co. v. Arch Ins. Co.,

20 F.4th 250 (5th Cir. 2021) ......................................... 21

Constitutional Provision, Statutes, and Rule:

U.S. Const. amend. VIII................................................ 8, 12

42 U.S.C. § 1983 ......................................................... passim

Ala. Code. § 15-18-82.1(c) .................................................. 13

Antiterrorism and Effective Death Penalty

Act of 1996, Pub. L. 104–132, 110 Stat.

1214 ....................................................................... passim

Fla. Stat.:

§ 922.105 (1999) ............................................................... 7

§ 922.105(1) (2005) .......................................................... 7

Prison Litigation Reform Act of 1995, Pub.

L. No. 104-134, 110 Stat. 1321-66 (1996) ...................... 8

Fed. R. Civ. P. 15(a)(2) ...................................................... 22

Other Authorities:

Bryce Buchmann, Humane Proposals for

Swift and Painless Death, 19 Rich. J.L.

& Pub. Int. 153 (2016) .................................................. 15

CHARLES ALAN WRIGHT & ARTHUR

MILLER, FEDERAL PRACTICE AND

PROCEDURE (3d ed. 2021)............................................ 20

Motion to Dismiss Second Amended

Complaint, Nelson v. Campbell, No.

2:03-cv-1008-T (May 4, 2005) ....................................... 14

VII

Other Authorities—Continued:

Page(s)

With Death Penalty Back, Nebraska

Looks Ahead to Executions, N.Y.

TIMES (Nov. 9, 2016) ............................................... 14-15

INTE RE ST O F A MIC I C U RI AE

Amici curiae are the States of Texas, Alabama, Arkansas, Arizona, Florida, Idaho, Indiana, Kentucky,

Louisiana, Mississippi, Montana, Nebraska, Oklahoma,

South Dakota and Utah. 1 Several States exercise their

sovereign prerogative to employ the death penalty to

punish society’s vilest offenders, provide the victims of

those crimes with closure, and deter repetition of such

heinous acts. They have done so because they are dutybound to fulfill their citizens’ will as expressed by statutes consistent with the Constitution. Both Congress and

this Court have recognized the vital importance of these

goals to States and to their people. See Antiterrorism

and Effective Death Penalty Act of 1996, Pub. L. 104–

132, 110 Stat. 1214 (AEDPA); Hill v. McDonough, 547

U.S. 573, 584 (2006); see also Gomez v. U.S. Dist. Ct. for

N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam).

Unsurprisingly, death row inmates often spend decades avoiding their sentences by bringing seriatim, frequently frivolous challenges either to the fact or method

of their sentences—often long after the deadline for challenging the fact of their execution. The States have

weathered these delay tactics ranging from constantly

shifting health concerns to religious objections from individuals who have never professed such religious requirements before. Here, Nance seeks an order invalidating lethal injection—the only means of execution authorized by the State of Georgia (as well as numerous

other States).

No counsel for any party authored this brief, in whole or in

part. No person or entity other than amici contributed monetarily

to its preparation or submission.

1

(1)

2

The latest strategy in prisoner litigation is to demand

States adopt methods of executions they have never attempted, long renounced, or found against their public

policy. This strategy, like so many before it, should be

rejected. Prisoners have no constitutional right to an execution suited to their personal preferences. And they

should not be permitted to use endless litigation regarding the means of execution to avoid their death sentences.

SU M MA RY O F A RGU ME NT

I. Because petitioner seeks to challenge the only

method of execution that the State has authorized, he

must press his claim through a writ of habeas corpus and

satisfy AEDPA’s strict standards for granting relief.

This Court has long held that “civil tort actions are not

appropriate vehicles for challenging the validity of outstanding criminal judgments.” Heck v. Humphrey, 512

U.S. 477, 486 (1994). A state prisoner’s challenge to the

only legally authorized method of his execution is such a

challenge: it implies the invalidity of the prisoner’s sentence because if the prisoner prevails, the State cannot

legally carry out that death sentence.

Nance’s gambit is only the latest in an unending series of novel litigation techniques developed to stave off

lawful capital sentences. If successful, no doubt every

capital defendant will copy his claims, flooding courts

with last-minute challenges to scheduled executions.

States will be forced to pass new laws and put into place

entirely new execution procedures, which will only start

the litigation process anew. But while capital murderers

may benefit from this extended procedural wrangling,

victims’ families experience anguish with each new delay.

That a State may adopt new legislation as a work-around

3

to these disguised habeas claims is hardly a remedy, as

this process encourages capital defendants to challenge

any method adopted by the State to escape a lawful capital sentence and frustrate the State’s policy of enacting

capital punishment altogether.

In adopting AEDPA’s strict standards, Congress

sought to prevent such an endless cycle of litigation. Habeas comes with significant procedural safeguards that

preserve a State’s ability to assess the legality of its own

actions in the first instance, and to carry out a prisoner’s

sentence once that sentence has been confirmed by federal habeas review. Under section 1983, by contrast, no

State court can first review the merits of a capital defendant’s challenges to a State’s capital-punishment system. And unlike under AEDPA’s strict regime preventing seriatim litigation, section 1983 claims permit a prisoner to haul States into court again and again each time

the State makes the slightest alteration to its method of

execution, or some new alleged “fact” purports to cast it

into doubt.

II. The United States frets (at 9) that dividing

challenges to a State’s method of execution from

procedures used to implement that method will be

difficult for courts and the relevant parties. But federal

courts are called upon to make far more complicated

decisions than this on a regular basis. And the United

States’ parade of horribles—States changing their

methods of execution mid-litigation; state prisoners

shifting their demands for relief after discovery;

pleadings that demand the prisoner have access to

multiple methods of execution, only some of which are

legal under State law; and so on—simply employs dire

language to describe humdrum issues faced by courts

every day. Mootness, amended complaints, stays of one

4

proceeding to allow another, and dismissal of

unexhausted claims are common tools that belie the

United States’ protests that requiring method-ofexecution challenges to be brought in habeas will cause

mass chaos amoung courts.

ARGU ME N T

I. Petitioner’s Challenge to Georgia’s Only Legally

Adopted Method of Execution Is a Challenge to

His Sentence Which Must Be Brought via

Habeas.

For nearly three decades, this Court has recognized

that habeas petitioners cannot evade the strict standards

Congress imposed on habeas relief by bringing their

claims under section 1983. Heck, 512 U.S. at 489; see also,

e.g., Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Where

a claim may be brought in habeas, federal courts must

“deny the existence of a cause of action” under section

1983. Heck, 512 U.S. at 489.

A challenge to the State’s only legally permissible

method of execution sounds in habeas. In Hill v.

McDonough, this Court permitted a state prisoner to

challenge the means by which the State would carry out

his execution under section 1983 because his “suit did not

challenge an execution procedure required by law, so

granting relief would not imply the unlawfulness of the

lethal injection sentence.” 547 U.S. at 580-81 (citing Nelson v. Campbell, 541 U.S. 637, 647 (2004)). Nance’s claim

is precisely the opposite: because Georgia has no other

legally authorized means of carrying out his sentence, if

Nance’s claim is successful, Georgia will be unable to legally fulfil his sentence. He therefore must bring his

claim through a habeas petition, with AEDPA’s attendant restrictions.

5

A. A state prisoner seeking to challenge the

validity of his sentence must do so through

habeas under AEDPA.

Petitioner (at 28-29) and the United States regale the

Court (at 8-9) with an ode to section 1983. The United

States begins by describing the statute as “exist[ing] to

vindicate the supremacy of the federal Constitution and

laws” with the purpose, “in large part,” of “overrid[ing]

portions of state law that conflict with an individual’s federal constitutional rights.” But this Court has repeatedly

recognized that Congress weighed the benefits of an allencompassing section 1983 against “the principles of

comity, finality, and federalism,” and courts have limited

section 1983 accordingly. Woodford v. Garceau, 538 U.S.

202, 206 (2003). When, as here, a prisoner seeks to challenge the validity of his sentence on constitutional

grounds, section 1983 “must yield to the more specific

federal habeas statute, with its attendant procedural and

exhaustion requirements.” Nelson, 541 U.S. at 643.

1. The most obvious example of this Court limiting

section 1983’s scope is also the one most relevant here:

Congress enacted AEDPA “to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases,” Woodford, 538 U.S. at 206 (emphasis added) (citing Williams v. Taylor, 529 U.S. 362,

386 (2000) (opinion of Stevens, J.) (“Congress wished to

curb delays, to prevent ‘retrials’ on federal habeas, and

to give effect to state convictions to the extent possible

under law”)). And this Court has held that “[t]he deference we owe to the decisions of the state legislatures under our federal system is enhanced where the specification of punishments is concerned, for ‘these are

6

peculiarly questions of legislative policy.’” Gregg v. Georgia, 428 U.S. 153, 176 (1976) (citation omitted).

In other words, Congress and this Court have confirmed that where state-court criminal sentences are at

issue, States take the lead, and federal courts’ authority

is circumscribed, due to the “profound societal costs”

when federal courts upset state convictions. Calderon v.

Thompson, 523 U.S. 538, 554 (1998) (quoting Smith v.

Murray, 477 U.S. 527, 539 (1986)). That arrangement

“reflect[s]” both Congress’ and this Court’s “enduring

respect for ‘the State’s interest in the finality of convictions that have survived direct review within the state

court system.’” Id. at 554. Such finality “is essential to

both the retributive and the deterrent functions of criminal law,” and without it, “the criminal law is deprived of

much of its deterrent effect.” Id.

2. Because section 1983 and AEDPA establish fundamentally different legal regimes, this Court has required

courts to distinguish between the two claims for nearly

three decades. Section 1983 authorizes a prisoner to

bring suit “against any person who, under color of state

law, subjects, or causes to be subjected, any citizen of the

United States to the deprivation of any rights, privileges,

or immunities secured by the Constitution.” Nelson, 541

U.S. at 643 (cleaned up). That includes constitutional

claims that “challenge the conditions of a prisoner’s confinement, whether the inmate seeks monetary or injunctive relief.” Id.

This Court recognized the boundary of section 1983

in Heck v. Humphrey. There, the Court held that a civil

rights damages action that, if successful, would “necessarily imply” the invalidity of the inmate’s conviction or

sentence could not be brought via section 1983 because

permitting such an action would enable habeas

7

petitioners to evade the strict limitations Congress imposed on federal habeas relief. 512 U.S. at 487. That is, a

suit “where an inmate seeks injunctive relief challenging

the fact of his conviction or the duration of his sentence”

is one that “fall[s] within the ‘core’ of habeas corpus” and

is not “cognizable when brought pursuant to § 1983.”

Nelson, 541 U.S. at 643 (emphasis added).

3. Preserving this distinction is vital. Where the

United States sees section 1983 as a method of vindicating federal supremacy, AEDPA reflected Congress’s respect for comity, finality, and federalism instead, especially once an inmate’s guilt has been affirmed by both

state and federal courts. In such cases, section 1983 has

distinct disadvantages that thwart, rather than further,

those principles.

For example, section 1983 claims may significantly

delay a State’s ability to carry out a sentence. “[T]he filing of a complaint pursuant to § 1983 in federal court initiates an original plenary civil action, governed by the

full panoply of the Federal Rules of Civil Procedure.”

Preiser v. Rodriguez, 411 U.S. 475, 495-96 (1973). Such a

proceeding, “with its discovery rules and other procedural formalities,” “can take a significant amount of time,

very frequently longer than a federal habeas corpus proceeding.” Id. at 496.

Section 1983 also allows inmates practically unlimited

opportunities to hale States into court and delay their executions. For example, Florida changed its method of execution from electrocution, see Fla. Stat. § 922.105

(1999), to lethal injection in 2000, although prisoners still

had the option to choose electrocution, see Fla. Stat.

§ 922.105(1) (2005). In 2005, Clarence Hill used his third

motion for post-conviction relief in state court to argue

that execution by lethal injection constitutes cruel and

8

unusual punishment under the Eighth Amendment. Hill

v. State, 921 So.2d 579, 582 & n.1 (Fla. 2006) (per curiam).

The trial court denied his motion as procedurally defaulted, and the Florida Supreme Court affirmed. Id. at

582. This Court denied review. Hill v. Florida, 546 U.S.

1219 (2006). Four days before his scheduled execution

date, Hill brought an action in federal district court under section 1983, citing a medical journal and contending

that lethal injection violated the Eighth Amendment.

Brief for the United States as Amicus Curiae Supporting

Respondents at 5, Hill v. McDonough, 547 U.S. 573

(2006) (No. 05-8794), 2006 WL 897024. He sought a preliminary injunction “barring defendants from executing

[him] in the manner they currently intend.” Id.

Section 1983 actions enabled Hill to bring his repetitive, meritless lawsuits, with all their attendant delays.

And Hill could keep delaying his execution by challenging any improvements a State made to its method of execution until a federal court finally held that his claims

were for no other purpose than delay. That is why section

1983 can, if this Court’s limitations are ignored, provide

an end-run around state court review. AEDPA’s rules of

presentment and default ensure that state courts may

first assess the constitutionality of state action—thereby

preserving important federalism concerns. See Baldwin

v. Reese, 541 U.S. 27, 32 (2004). Although a State’s ability

to carry out an inmate’s sentence is also at stake in a section 1983 suit, state courts have no inherent ability to address constitutional challenges brought through that

mechanism. Even with the additional precautions afforded by the Prison Litigation Reform Act of 1995

(PLRA), Pub. L. No. 104-134, 110 Stat. 1321-66 (1996),

requiring a prisoner to exhaust state remedies, a prison

9

grievance system is hardly equipped to upend a State’s

entire execution regime.

4. None of these characteristics of section 1983 claims

further the principles this Court and Congress have determined reign paramount once “a federal court of appeals issues a mandate denying federal habeas relief.”

Thompson, 523 U.S. at 556. At that point, “finality acquires an added moral dimension.” Id. “Only with real

finality can the victims of crime move forward knowing

the moral judgment will be carried out.” Id. And “[t]o unsettle these expectations is to inflict a profound injury to

the powerful and legitimate interest in punishing the

guilty, an interest shared by the State and the victims of

crime alike.” Id. (internal quotation marks omitted) (citation omitted). “When society promises to punish by

death certain conduct, and then the courts fail to do so,

the courts not only lessen the deterrent effect of the

threat of capital punishment, they undermine the integrity of the entire criminal justice system.” Middlebrooks

v. Parker, 22 F.4th 621, 627 (6th Cir. 2022) (Thapar, J.,

statement respecting denial of rehearing en banc) (quoting Coleman v. Balkcom, 451 U.S. 949, 959 (1981)

(Rehnquist, J., dissenting from denial of certiorari)).

Requiring state prisoners to proceed through a petition for a writ of habeas corpus does not preclude those

individuals from receiving the protections of federal constitutional law, but it does “leave[] primary responsibility” for enforcing that law “with the state courts.” Cullen

v. Pinholster, 563 U.S. 170, 182 (2011). Congress decided

that “promoting comity, finality, and federalism” would

be best served “by giving state courts the first opportunity to review [a] claim, and to correct any constitutional violation in the first instance.” Id. at 185 (alteration in original). In fact, as this Court observed, allowing

10

constitutional claims to sidestep state courts “frustrates

the State’s ability to honor [a petitioner’s] constitutional

rights.” Cone v. Bell, 556 U.S. 449, 465 (2009).

5. Petitioner’s counter-narrative—echoed by the

United States—begins and ends with the fundamental

misconception that state prisoners are entitled to have

their constitutional claims decided by a federal court.

But the idea that “every person asserting a federal right

is entitled to one unencumbered opportunity to litigate

that right in a federal district court, regardless of the legal posture in which the federal claim arises,” has no support in either the Constitution or section 1983. Allen v.

McCurry, 449 U.S. 90, 103 (1980). This Court has rejected arguments borne out of “a general distrust of the

capacity of the state courts to render correct decisions

on constitutional issues.” Id. at 105. It should do so once

more here.

B. A challenge to the validity of the only method

of carrying out an execution challenges the

validity of the sentence itself.

This Court’s precedents addressing the overlap between section 1983 and habeas corpus require courts to

take a nuanced approach to method-of-execution challenges. At some point, method-of-execution challenges

can amount to attacks on a State’s ability to implement

lawful death sentences. When a capital defendant does

so, he raises a claim which must be brought in habeas, as

his challenge prevents the execution of an otherwise lawful death sentence altogether. Petitioner’s challenge to

the validity of the only means of carrying out his execution is a challenge to his sentence itself—and thus it must

be brought in habeas. The counterarguments presented

by petitioner and his aligned amici are without merit for

11

the reasons discussed in Respondent’s brief. Rather than

burden this Court with repetitive arguments, this brief

will focus on the arguments presented by the United

States.

1. This Court’s precedents reveal why petitioner’s

claim must be brought in habeas. When this Court addressed David Nelson’s method-of-execution challenge

in 2004, it acknowledged that “[n]either the ‘conditions’”

of confinement label—referring to a section 1983 claim—

“nor the ‘fact or duration’ label”—referring to a habeas

claim—“is particularly apt” when an inmate “seek[s] to

enjoin the use of a particular method of execution.” 541

U.S. at 643-44. But it also recognized that “imposition of

the death penalty presupposes a means of carrying it

out.” Id. at 644. In a State “where the legislature has established [the challenged method of execution] as the

preferred method of execution, a constitutional challenge

seeking to permanently enjoin the use of [that method of

execution] may amount to a challenge to the fact of the

sentence itself.” Id. (citation omitted). Such a challenge

must be brought in habeas—subject to all the strictures

that Congress has imposed through AEDPA.

By contrast, in Hill, the Court concluded that relief

that would cause only an “incidental delay” that would

“not cast on [Hill’s] sentence the kind of negative legal

implication that would require him to proceed in a habeas

action.” 547 U.S. at 583. Nevertheless, in doing so, the

Court again warned that “[i]f the relief sought [by an inmate’s suit] would foreclose execution, recharacterizing

a complaint as an action for habeas corpus might be

proper.” Id. at 582.

The Court reiterated this distinction in Bucklew v.

Precythe, where it recognized that “existing state law

might be relevant to determining the proper procedural

12

vehicle for the inmate’s claim,” 139 S. Ct. 1112, 1128

(2019). The Court distinguished Hill by noting that “if

the relief sought in a 42 U.S.C. § 1983 action would ‘foreclose the State from implementing the [inmate’s] sentence under present law,’ then ‘recharacterizing a complaint as an action for habeas corpus might be proper.’”

Id. (alteration in original) (quoting Hill, 547 U.S. at 58283).

Three times ought to be the charm: method-of-execution challenges are fundamentally different from those

asking a State to modify other execution procedures. Because any new method, assuming a State is even able and

willing to adopt it, requires new training, may necessitate new facilities, and will inevitably trigger new litigation, a successful method-of-execution claim will cause

far more than “incidental delay.” Hill, 547 U.S. at 583.

Habeas is the only “proper procedural vehicle” for such

a claim.

2. The United States responds to (at 24-25) this

Court’s eighteen-year concerns over method-of-execution claims with a shrug, contending that even if a State’s

execution procedure were held to be unconstitutional,

the inmate’s sentence remains “valid.” The State, it says

(at 24-25), can simply amend its execution method to authorize a constitutional one.

The United States attempts (at 14) to distinguish

method-of-execution claims “from those that wholly foreclose the State from implementing the sentence,” such as

insanity claims under Ford v. Wainwright, 477 U.S. 399

(1986). In Ford, the Court held that the Eighth Amendment would be violated if Ford were executed while he

was insane. Id. at 410. Thus, the United States explains

(at 14), habeas is appropriate for those claims because

the State would be constitutionally barred from

13

“carrying out the death sentence in any manner, unless

and until the inmate regains competence.” The United

States’ “distinction” only highlights why habeas is appropriate here: a method-of-execution challenge from an inmate that targets a State’s sole legal method of execution

would also “foreclose the State from implementing the

sentence” until some future, uncertain date.

This argument ignores the practical realities attending both legislation and capital litigation with which the

United States is no doubt familiar. When brought under

section 1983, method-of-execution challenges allow prisoners to engage courts and States in a type of sentencing

“Whac-a-Mole,” Middlebrooks, 22 F.4th at 624 (Thapar,

J., statement respecting denial of rehearing en banc).

With each new method-of-execution change, “new facts”

allow a prisoner back into federal court. Id. at 624-25.

And even those States that have attempted ex ante to

prevent the flood of method-of-execution challenges with

more flexible legislation have legal limits on the methods

they can adopt and the preferences of their citizenry to

consider. See, e.g., Boyd v. Warden, Holman Corr. Facility, 856 F.3d 853, 868 (11th Cir. 2017) (citing Ala.

Code. § 15-18-82.1(c), which allows Alabama inmates to

choose between lethal injection and electrocution, and

only if those two methods are held unconstitutional allowing any other constitutional method of execution).

For example, Nelson was sentenced to death in 1978,

and 26 years later, three days before his scheduled execution, this Court was required to address one of what

would prove to be several of Nelson’s challenges to Alabama’s execution procedures. In an almost unparalleled

show of gall, Nelson first convinced courts to require the

State to adopt his proposed alternative procedure, only

then to challenge that procedure as unconstitutional. See

14

Motion to Dismiss Second Amended Complaint, Nelson

v. Campbell, No. 2:03-cv-1008-T (M.D. Ala. May 4, 2005)

(ECF 63).

In Middlebrooks, Judge Thapar observed that “Middlebrooks has been challenging his sentence in one form

or another for thirty-two years—more than twice the

time [the boy he tortured and killed] ever got to enjoy on

Earth.” 22 F.4th at 629 (Thapar, J., statement respecting

denial of rehearing en banc). Middlebrooks first argued

that Tennessee’s lethal injection protocol was unconstitutional because of the State’s use of pentobarbital. Id.

at 622. Eight years later, he contended that midazolam

would be unconstitutional, and demanded the State use

pentobarbital. Id. “What changed? Tennessee can no

longer access pentobarbital.” Id.

This type of gamesmanship is all but universal in capital litigation. As a result, this Court has adopted an elaborate system of jurisprudence to ensure that “challenges

to lawfully issued [capital] sentences” are resolved

“fairly and expeditiously” precisely because prisoners

with nothing to lose “attempt[] to use such challenges as

tools to interpose unjustified delay.” Bucklew, 139 S. Ct.

at 1134.

3. But even setting aside the United States’ newfound naiveté regarding capital litigation, this Court has

made clear that the effect on the States is far more significant than the United States admits. As this Court has

recognized, States have a sovereign interest in enforcing

both their laws and their legally valid judgments. See

Nelson, 541 U.S. at 644.

However unpopular capital punishment may be in

particular circles, many States have decided that some

crimes are so heinous that only the forfeiture of the offender’s life can satisfy what justice requires. Cf. With

15

Death Penalty Back, Nebraska Looks Ahead to Executions, N.Y. TIMES (Nov. 9, 2016) (explaining how Nebraska voters overrode State legislators’ attempt to end

the death penalty). These States and their citizens are

entitled to carry out these sentences in a timely manner

even if some of their fellow countrymen do not approve.

Likewise, obligating a State to change the method

through which it imposes a death sentence trenches on

the will of the citizens of that State. Not all methods of

execution are created equal in the eyes of the citizenry,

even when those methods are plainly constitutional. Execution by firing squad, for example, “requires trained

marksmen who are willing to participate,” McGehee v.

Hutchinson, 854 F.3d 488, 494 (8th Cir. 2017) (per curiam). Either as a result of “democratic pressures,” history, or public policy, States have “shifted between various methods for executing the condemned in search of

more humane execution methods.” Bryce Buchmann, Humane Proposals for Swift and Painless Death,

19 Rich. J.L. & Pub. Int. 153, 163 (2016); see also Bucklew, 139 S. Ct. at 1125 (noting that changes in methods of

execution to be more humane “occurred not through this

Court’s intervention, but through the initiative of the

people and their representatives”).

A State’s selected method of execution also affects

that State’s penal system in other ways. Juries think

about what a sentence of death will entail. In response to

a defense counsel’s objection when he sought to remind

a Virginia jury (in 1988) that the defendant would be

“strap[ped] in an electric chair and [given] twenty-five

hundred volts,” the judge responded that there was no

need to “remind the jury that the method of execution

prescribed in [Virginia] (as it has been for 79 years) is

electrocution,” as it is “something they surely already

16

knew.” Turner v. Commonwealth, 364 S.E.2d 483, 489

(Va. 1988). New Hampshire’s Supreme Court referred to

the legislative history of its capital punishment statute

as evidence that the reason for changing to lethal injection “was to make capital punishment more likely to be

imposed in [the] state.” State v. Addison, 87 A.3d 1, 157

(N.H. 2013) (citing N.H.S. Jour. 599 (1986)); see id. (quoting N.H.S. Jour. 599 (1986): “If we are going to have a

death penalty we should be prepared to use it and this

bill provides for the most humane and effective means of

accomplishing what is unfortunately a necessary part of

our state law.”).

Changing the method of execution would require a

“statutory amendment or variance,” which represents

both a significant invasion of state sovereignty and concomitant harm to our federal system. Nelson, 541 U.S. at

644. Requiring such a change before a State may execute

the inmate “impos[es] significant costs on the State and

the administration of its penal system.” Id. Congress

passed AEDPA to minimize such intrusions into state

sovereignty without at minimum allowing the State’s

court system to address the claim in the first instance.

See Harrington v. Richter, 562 U.S. 86, 103 (2011).

4. The United States insists (at 8) that “nothing justifies differential treatment of method-of-execution claims

based on whether state law currently authorizes the

identified alternative.” In support, it relies on the fact

that “an inmate seeking to identify an alternative method

of execution is not limited to choosing among those presently authorized by a particular State’s law.” United

States Br. at 15 (quoting Bucklew, 139 S. Ct. at 1128).

But that argument goes to the merits of a method-of-execution challenge, not to the appropriate procedural vehicle for one.

17

That assertion likewise contradicts this Court’s

teachings, which plainly establish the significance of the

then-existing laws under which a State sentences a criminal to death. In Hill, this Court noted that section 1983

was appropriate for Hill’s challenge as “the injunction

Hill seeks would not necessarily foreclose the State from

implementing the lethal injection sentence under present law, and thus it could not be said that the suit seeks

to establish ‘unlawfulness [that] would render a conviction or sentence invalid.’” 547 U.S. at 583 (alteration in

original) (emphasis added) (quoting Heck, 512 U.S. at

486). In other words, a suit that would prevent the State

from implementing its execution sentence under present

law would be an attempt to “establish unlawfulness

[that] would render a conviction or sentence invalid.” Id.

(alteration in original).

That does not mean that a lawfully adopted method

of execution chosen by a State cannot be unconstitutional

as applied to a state prisoner. It does mean, however,

that if the only legal method of implementing a death

sentence is held to be unconstitutional, such “unlawfulness” may effectively invalidate the conviction or sentence itself. See id.

Moreover, the United States’ myopic focus again

overlooks another reason method-of-execution claims

should be addressed first and foremost by state courts:

leaving States as the primary adjudicators of constitutional claims against state sentences preserves the

States’ role as fellow sovereigns and laboratories of democracy. For example, although this Court has upheld

the constitutionality of death by electrocution, In re

Kemmler, 136 U.S. 436 (1890), and the firing squad,

Wilkerson v. Utah, 99 U.S. 130, 134-35 (1878), some

States have rejected those methods. See, e.g., In re

18

Kemmler, 136 U.S. at 444 (describing the Governor of

New York recommending the State Legislature find a

“less barbarous manner” of execution than hanging);

State v. Mata, 745 N.W.2d 229, 278 (Neb. 2008) (Nebraska Supreme Court holding that considering new

facts concerning electrocution, that method is forbidden

by the Nebraska Constitution). “While [this] Court has

tolerated continuity in this area, the democratic processes have demanded change.” Workman v. Bredesen,

486 F.3d 896, 907 (6th Cir. 2007). By demanding that all

constitutional objections to States’ methods of execution

must be heard by a federal court, petitioner and the

United States seek to short circuit that process and minimize the import of the federalist system that lies beneath it.

II. Courts Are Perfectly Capable of Addressing

Method-of-Execution Claims in Habeas.

While vigorously defending the view that federal

courts should decide any and all constitutional challenges

through plenary civil litigation, the United States also

makes (at 20-23) the somewhat paradoxical argument

that it will be “difficult” for federal courts to implement

a rule acknowledging this Court’s and States’ concerns

about method-of-execution challenges. Federal courts

have no warrant to ignore a litigation regime created by

Congress on the basis that such decisions may involve

close calls or complex litigation: that is what federal

courts exist to do.

A. After 18 years of this Court considering whether

method-of-execution claims must be heard in habeas, and

nearly 28 years since Heck v. Humphrey, courts have

had plenty of notice—and practice—looking beyond a

capital defendant’s pleadings to determine whether a

19

challenge sounds in section 1983 or in habeas. For example, courts have developed rules to decide whether particular prison disciplinary actions challenge the fact of a

sentence or merely its method, Muhammad v. Close, 540

U.S. 749, 751 (2004) (per curiam), and whether a particular alleged breach of a plea bargain will or will not invalidate the entire sentence, Mann v. Denton County, 364

F. App’x 881, 883 (5th Cir. 2010) (per curiam), or even

whether certain forms of deferred adjudication are convictions that trigger the Heck doctrine at all, DeLeon v.

City of Corpus Christi, 488 F.3d 649, 656 (5th Cir. 2007)

(citing McClish v. Nugent, 483 F.3d 1231, 1251-52 (11th

Cir. 2007)).

Nor is there any question that federal courts are perfectly capable of determining how to address when litigants have chosen the wrong vehicle and informing the

parties to a suit of the ramifications of their pleadings. In

fact, several federal and state courts, including this

Court, have addressed method-of-execution challenges

either brought in habeas or that those courts believed

should have been brought in habeas. See, e.g., Stewart v.

LaGrand, 526 U.S. 115 (1999) (per curiam) (rejecting inmate’s method-of-execution challenge in habeas because

inmate had selected one of two methods offered by the

State).

B. But the United States frets (at 9) that the potential “dual-track approach” for method-of-execution

claims “add[s] unnecessary complexity to capital cases”

because classifying claims “would turn on state-law distinctions that may be difficult for a federal court to discern and may be impossible to assess at the pleading

stage” and courts would need to react if those classifications changed mid-litigation, such as if “an inmate revises his proposed alternative,” or “the course of

20

discovery and other proceedings sheds new light on an

alternative, or a State amends its law during the litigation.” Moreover, according to the United States, “claims

could bounce back and forth between different venues”;

“multiple claims by the same inmate could be split”; “and

the treatment of similar federal constitutional claims

could differ based solely on the otherwise-irrelevant

specificity of the execution-procedure law of the relevant

States.” United States Br. 9.

In other words, the United States seems to fear that,

should courts begin to distinguish between types of

method-of-execution claims, courts will forget how to:

understand state law despite copious practice with habeas, diversity jurisdiction, and various joint federalstate programs and respond to unclear pleading by imposing pleading standards; address amended complaints, partial dismissals, and mootness; dismiss claims

brought through the wrong vehicle; and oversee parallel,

simultaneous, and concurrent litigation or enter stays if

one case’s result may moot another case.

The States give federal courts more credit than the

United States apparently does. These are the fundamental functions of a federal court. See generally CHARLES

ALAN WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE

AND PROCEDURE (3d ed. 2021) (explaining how federal

courts address these and other issues involved in complex litigation). Any concerns about federal courts proving unequal to the task of sorting section 1983 claims

from habeas claims are both overblown and farfetched.

Addressing the United States’ concerns one-by-one,

the United States first claims (at 9) that Georgia’s position is difficult because “[t]he proper classification of a

claim would turn on state-law distinctions that may be

difficult for a federal court to discern and may be

21

impossible to assess at the pleading stage.” Assuming

that the federal government is concerned—as it

sounds—that federal courts will have difficulty with

state law, that concern implicates far more legal areas

than method-of-execution claims. Federal judges “assess

at the pleading stage” state law every day. See, e.g.,

Rutledge v. Pharm. Care Mgmt. Ass’n, 141 S. Ct. 474,

483 (2020) (holding that an Arkansas statute is not

preempted by a federal law); Zurich Am. Ins. Co. v. Arch

Ins. Co., 20 F.4th 250, 254 (5th Cir. 2021) (construing an

insurance policy in accordance with Illinois state insurance law); Santoro v. County of Collin, No. 4:18-CV00660-ALM-CAN, 2019 WL 5692186 at *4 (E.D. Tex.

Aug. 16, 2019), report and recommendation adopted, No.

4:18-CV-660, 2019 WL 4686361 (E.D. Tex. Sept. 26, 2019)

(construing Texas governmental immunity laws). Diversity jurisdiction is premised on the proposition that federal courts are equal to these sometimes difficult tasks—

even in the capital context.

As for method-of-execution claims, federal courts can

look at state statutes to determine what methods of execution are legally available in that State. This Court did

as much in Hill and Nelson alike. And federal courts may

always, when in doubt, require a party to clarify the

scope or basis for his requested relief.

The United States’ next set of concerns appears to

doubt courts’ ability to handle issues such as amended

pleadings and mootness. The United States fears (at 9)

that courts will need to react when “an inmate revises his

proposed alternative,” or “the course of discovery and

other proceedings sheds new light on an alternative, or a

State amends its law during the litigation.” Moreover,

courts would have difficulty disposing of method-of-execution claims that “could bounce back and forth between

22

different venues,” or should be split between habeas and

section 1983. United States Br. 9.

Again, federal courts have used stays to account for

direct criminal appeals, AEDPA’s one-year statute of

limitations, and the limitations assigned to section 1983

claims under state law. See, e.g., Bucy v. Stroman, No.

A-15-CA-1040-SS, 2016 WL 4492195 *4 (W.D. Tex. Aug.

23, 2016) (staying a section 1983 case while the underlying criminal case was being prosecuted); Hicks v. Swanhart, No. 12-1633 (FLW), 2012 WL 6152901 *3 (D.N.J.

Dec. 10, 2012) (staying a case while a criminal appeal was

underway); Guillory v. Wheeler, 303 F. Supp. 2d 808, 811

(M.D. La. 2004) (staying section 1983 claim in federal

court while a state criminal appeal was taking place). In

fact, this Court addressed the appropriateness of a stay

in a similar situation when some claims were unexhausted. See, e.g., Rhines v. Weber, 544 U.S. 269, 272-73

(2005). Although this Court found such stays generally

inappropriate, it was clear that courts were familiar with

the procedure. A litigant uninterested in pursuing a

claim that “changes venue,” or a court determining that

such a change is sought for delay, can also simply “delete” the offending claim. Id. at 278.

Finally, if discovery changes an inmate’s trial strategy, the court may allow an amended complaint. See Fed.

R. Civ. P. 15(a)(2). If the State changes its authorized

method of execution, the court will likely dismiss the

claim as moot—another procedure that is very familiar

to the lower federal courts. These garden-variety federal

jurisdictional issues do not become insurmountable

merely because a prisoner is required to raise a methodof-execution challenge in habeas rather than section

1983.

23

C O NC LU SIO N

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

KEN PAXTON

Attorney General of Texas

MARCH 2022

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

KATHRYN M. CHERRY

Assistant Solicitor General

OFFICE OF THE TEXAS

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.texas.gov

(512) 936-1700

24

Counsel for Additional Amici States:

STEVE MARSHALL

Attorney General

of Alabama

JEFF LANDRY

Attorney General

of Louisiana

LESLIE RUTLEDGE

Attorney General

of Arkansas

LYNN FITCH

Attorney General

of Mississippi

MARK BRNOVICH

Attorney General

of Arizona

AUSTIN KNUDSEN

Attorney General

of Montana

ASHLEY MOODY

Attorney General

of Florida

DOUG PETERSON

Attorney General

of Nebraska

LAWRENCE G. WASDEN

Attorney General

of Idaho

JOHN O’CONNOR

Attorney General

of Oklahoma

TODD ROKITA

Attorney General

of Indiana

JASON RAVNSBORG

Attorney General

of South Dakota

DANIEL CAMERON

Attorney General

of Kentucky

SEAN D. REYES

Attorney General

Of Utah