Reply Brief — Nelson v. Campbell, Commissioner, Alabama Department of Corrections

/.

(5 /

(

a A

No. 03-6821

In The

Supreme Court of the Gnited States

¢

DAVID L. NELSON,

Petitioner,

V.

DONAL CAMPBELL, Commissioner,

Alabama Department of Corrections, et al.,

Respondents.

,

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

¥

REPLY BRIEF FOR PETITIONER

.

MICHAEL KENNEDY MCINTYRE*

H. VICTORIA SMITH

507 The Grant Building

44 Broad Street, N.W.

Atlanta, GA 30303

404-688-0900

BRYAN A. STEVENSON

LAJUANA DAVIS

EQUAL JUSTICE INITIATIVE

OF ALABAMA

122 Commerce Street

Montgomery, AL 36104

334-269-1803

Counsel for Petitioner

David L. Nelson

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

_ a a neeeee i

_ 2 ¢ — __.. SES eeTreenneee ii

TT sintin ini ctediceceisidininibunennnatontednemeenenesaneneen 1

Sn IIITTTET ‘istncdeieienstapuscnumiedintienidiapuseietiecenmeenetsnceesees 4

I. MR. NELSON’S COMPLAINT IS COGNIZA-

I BT enstiatericdeineneeintonisasoneenenssenes 4

A. Heck and Preiser Authorize the Review

Sought By Mr. Nelson....................000eeeeees 6

B. A Federal Court Has Authority to Grant

the Relief Sought By Mr. Nelson Under

i IEE iiiateidadsaliaedinabanenbitatgdigtedsnséimecnenmencnenes 7

Il. EVEN IF MR. NELSON’S § 1983 COM-

PLAINT WERE TO BE TREATED AS A HA-

BEAS CORPUS PETITION, IT WOULD NOT

BE BARRED AS A SUCCESSOR BECAUSE,

LIKE THE HABEAS PETITION AT ISSUE IN

MARTINEZ-VILLAREAL, IT PRESENTS A

CLAIM THAT WAS NOT RIPE AT THE TIME

OF ANY PRIOR HABEAS PROCEEDINGG..... 10

Ill. THERE ARE NO PROCEDURAL BARRIERS

TO REVIEW OF MR. NELSON’S CLAIM........ 15

ee iprnterncnncccostesnascensecenesseisensnivunsesevnceneesnses 17

ii

TABLE OF AUTHORITIES

Page

CASES

In re Cain, 137 F.3d 234 (5th Cir. 1998)..........0..ccceeeeeeeeeees 15

Cooper v. Rimmer, F.3d__, 2004 WL 232377

(Bila Cir. Pale. ©, SBD Ga ..cccccccssscesssivcsmnsnecsimmmaaanan 14

Crouch v. Norris, 251 F.3d 720 (8th Cir. 2001) ................. 15

Edwards v. Balisok, 520 U.S. 641 (1997)... eeeeeeeeeee 6

Ford v. Wainwright, 477 U.S. 399 (1986).................cceeeeeee 15

Galtieri v. United States, 128 F.3d 33 (2d Cir. 1997)........ 14

Gerstein v. Pugh, 420 U.S. 103 (1975)... cteeteee eens 9

Gibson v. Berryhill, 411 U.S. 564 (1973) ....... eee eee 9

Godinez v. Moran, 509 U.S. 389 (1993).............ccccceceeeeeeees 15

Gomez v. United States District Court, 503 U.S. 653

(BEIGE) cccccccserscserrecusonsensesensnnntesineaanianninnnannnanennn 3

Gregg v. Georgia, 428 U.S. 153 (1976).........cceceeeeeeeeeeeeees 4

Harris v. Washington, 404 U.S. 55 (1971).............ccccccceeeeees 9

Heck v. Humphrey, 512 U.S. 477 (1994)..................000 6,7,9

Hill v. Alaska, 297 F.3d 895 (9th Cir. 2002).................004. 14

James v. Walsh, 308 F.3d 162 (2d Cir. 2002)..................... 14

Johnson v. Reid, 1248. Ct. 980 (2003)... eeeeeeeeees 14

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459

(BIDET) ..2ccccscceseccsssesenssesenessnesnnseensiassslinnninnnnnnnnnannn 16

Mitchum v. Foster, 407 U.S. 225 (1972).................0.. 7, 8,10

Muhammad v. Close, 124 S. Ct. 1303 (2004).................. 6,8

Nguyen v. Gibson, 162 F.3d 600 (10th Cir. 1998).............. 15

Pennsylvania v. Union Gas, 491 U.S. 1 (1989) ...............004. 8

ill

TABLE OF AUTHORITIES -— Continued

Page

Preiser v. Rodriguez, 411 U.S. 475 (1978) ..............cccceeees 6,7

Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17,

ESTATE 14

In re Sapp, 118 F.3d 460 (6th Cir. 1997) ........0.0 eee 9

Schiro v. Farley, 510 U.S. 222 (1994)... ee eeeeeesteeeee 15

Seminole Tribe of Florida v. Florida, 517 U.S. 44

ESLER TO 8

Smalis v. Pennsylvania, 476 U.S. 140 (1986) ..................... 9

Stewart v. Martinez-Villareal, 523 U.S. 637

ES SEES ee 11, 12, 13, 14

Tarver v. State, 761 So. 2d 266 (Ala. Crim. App. 2000).........16

Tarver v. State, 769 So. 2d 338 (Ala. Crim. App. 2000)......... 16

Teague v. Lane, 489 U.S. 288 (1989).........ccceeeeceeeesteeeeees 15

Ex parte Young, 209 U.S. 123 (1908) ...............cccceessseeeeeeees 9

Young v. Hayes, 218 F.3d 850 (8th Cir. 2000).................... 10

Zablocki v. Redhail, 434 U.S. 374 (1978) ..........ccccccceceeeeeeees 9

STATUTES AND RULES

i espnsnuunoonomonnese 9

a 10, 11, 12, 13, 15

EE ee 17

ET —

i. scsemsnemonannnnonee 8

a onsonnecosns passim

siting 10

iv

TABLE OF AUTHORITIES - Continued

Page

ALA. CODE § 15-18-82.1(D).............cccsscccssssserrrrrrrrcreesssssseseees 2

Bitte CN, BO GD cecesccececessscencsscccsesconvcccnmenninepennnsnnonssesns 16

woe Bs § SS” Ren 16

TOS Ee Sf” ene 16

PED. R. CIV. PRO. 12(D).......ccccsccocsssssrsescscccccccsecsssecsesessesooees 10

PED. BR. Cry. PRO. IBLE) ...00ccvccececcssovescscsssescscesssocesesoseosesesees 10

BaD. B. Cry. PRD. BG ...cccccccsesccssescossesscsovscsccscscoscesessseneoseosees 10

MISCELLANEOUS

DEATH PENALTY INFORMATION CENTER, SEARCHABLE

DATABASE OF EXECUTIONS, available at http://

www.deathpenaltyinfo.org/executions. php ...............+++ 14

INTRODUCTION

Last April, when the State moved to set his execution

date, Mr. Nelson took the highly unusual step of respond-

ing formally, in writing, with a copy to the clerk of the

Alabama Supreme Court, that he did not oppose the

execution.’ He expressly stated that he would not chal-

lenge his death sentence and that he hoped that an execu-

tion date would be set expeditiously. J.A. 89.

Shortly before Mr. Nelson’s transfer to Holman Prison,

where the execution was to occur, his counsel took the

further unusual step of contacting the Holman warden in

an effort to assure that Mr. Nelson’s execution by lethal

injection would be carried out without problems despite

his medical condition. J.A. 25-26. Counsel offered to make

a private physician available to consult about the neces-

sary procedure at Mr. Nelson’s expense if the warden

preferred that to a prison physician. J.A. 8-9. Counsel

asked to review the lethal injection protocols so that any

medical issues could be resolved in advance. J.A. 25-26.

Mr. Nelson even offered to be executed by electrocution to

avoid any injection problems that might arise.” J.A. 92-93.

' In this letter, Mr. Nelson agreed “that an execution date should

be set promptly by the court in the immediate future” and urged the

State to take any necessary steps “to insure that an execution date be

set in an expedious [sic] manner.” J.A. 89. He stated that “he had no

plans to contest [the] motion” to set an execution date, nor would his

attorneys “be responding to [the] motion . . . , or seek a stay of execution

in [his] behalf.” Jd.

* The State makes much of Mr. Nelson’s failure to request electro-

cution during the thirty-day window in the su: mer of 2002 when

death-sentenced inmates had an opportunity 1o do so under the

transition provision of the statute that replaced Aiabama’s electric chair

(Continued on following page)

2

While acknowledging that Mr. Nelson did have a

venous-access problem which would require some atten-

tion,’ the warden rejected all offers of cooperation and

assistance from Mr. Nelson and his counsel and rebuffed

their efforts to obtain information about the State’s injec-

tion-procedure protocols — if it had any — that might be

employed to deal with this problem. The warden refused to

provide assurances that qualified medical personnel or

adequate medical support would be available to handle

complications arising from Mr. Nelson’s compromised

veins, and then belatedly proposed a surgical procedure

likely to result in gratuitous trauma and suffering. It was

to avert this potentially torturous procedure, and for no

other reason, that Mr. Nelson’s present civil-rights action

under 42 U.S.C. § 1983 was filed.

with lethal injection, ALA. CODE § 15-18-82.1(b) (1975). Resp. Br. 4, 28

n.8, 34. Of course, neither this provision nor Mr. Nelson’s failure to

invoke it is remotely relevant. Mr. Nelson has never objected to being

executed by lethal injection; he had no reason, in the summer of 2002,

to anticipate that Alabama would insist on performing the venous-

access procedure inhumanely; and he offered to accept electrocution

only as a lesser evil than the inhumane “cut-down” procedure with

which he was suddenly confronted in the fall of 2003.

* See J.A. 93 (“The nurse reported to me that Nelson did not have

any veins in his lower arms and hands sufficient to support a direct

intravenous line.”) (affidavit of Warden Culliver); see also J.A. 10

(“Defendant Culliver furthermore acknowledged to counsel for the

Plaintiff that the Plaintiff’s execution will be the first instance of the

State of Alabama having to perform a medical procedure prior to the

execution to gain venous access.”) (Complaint for Injunctive and

Declaratory Relief); J.A. 51 (“the protocol that is going to be planned for

this execution is a little different than the ones that we've had.... ”)

(counsel for the State at in-chambers telephone conference).

3

The State rests its argument that Mr. Nelson’s § 1983

complaint should be barred as a successive habeas corpus

petition on the general proposition that death-row prison-

ers are prone to file vexatious pleadings aimed at thwart-

ing executions, not on the facts of Mr. Nelson’s own case.

Mr. Nelson’s case presents a very different situation than

the one the State purports to fear — a situation wholly

remote and readily distinguishable from any inmate’s

efforts to avoid or delay an execution.* Mr. Nelson accepts

the inevitability of his execution and seeks only to have it

conducted without needless brutality.

Mr. Nelson’s § 1983 action does not challenge his

death sentence or any aspect of the criminal proceedings

or judgment that authorizes his execution. No relief he

could obtain in this action would invalidate those proceed-

ings or that judgment in whole or in part. Mr. Nelson’s

complaint questions only the decision of a prison official to

conduct a potentially excruciating surgical procedure as

the unnecessary prelude to his execution. J.A. 67. It does

not question lethal injection as a mode of execution and

does not dispute that the State is entitled to obtain venous

access through any necessary, medically appropriate

procedures, including surgical procedures. Mr. Nelson asks

only to have judicial protection against unnecessary and

ill-advised surgery performed by unqualified state agents

at the warden’s ad hoc behest and which exposes him to

* Compare Gomez v. United States District Court, 503 U.S. 653

(1992).

4

“the gratuitous infliction of suffering” in violation of the

Eighth Amendment.

&

v

ARGUMENT

I. MR. NELSON’S COMPLAINT IS COGNIZABLE

UNDER § 1983.

The State concedes that “State prisoners in Nelson’s

shoes — i.e., those who have previously filed federal habeas

petitions — may of course file § 1983 complaints challeng-

ing the conditions of their confinement.” Resp. Br. 22.

However, it asserts that Mr. Nelson’s complaint “Directly

Challenges the Imposition of His Death Sentence.” Resp.

Br. 23. There is no basis for that characterization in the

record. Rather, Mr. Nelson has explicitly, consistently, and

repeatedly disavowed challenging his death sentence or its

imposition.

The State argues that because venous access is

required before a lethal injection can be carried out, Mr.

Nelson’s § 1983 complaint necessarily challenges his

sentence. However, the complaint does not contest the

State’s right to obtain access to Mr. Nelson’s veins. It does

not contest the State’s use of surgical procedures for that

purpose, or the State’s use of any other procedures neces-

sary to carry out Mr. Nelson’s execution. That the physical

abuse which is the sole subject of Mr. Nelson’s constitu-

tional complaint will occur in the course of preparing him

for execution does not convert that complaint into an

* Gregg v. Georgia, 428 U.S. 153, 183 (1976).

5

attack on his death sentence.® Nor should it insulate the

abuse from legal scrutiny.

The State’s repeated contention that the relief sought

by Mr. Nelson “would seemingly prevent the State from

carrying out his death sentence at all” (Resp. Br. 34; see

also id. at 1, 12, 17, 21, 24-35, 44, 48) is a complete fiction.

Nothing in the cause of action pleaded by Mr. Nelson’s

§ 1983 complaiht and now before this Court would or will

support any form of relief that prevents his execution. And

the only reason why the adjudication of the complaint has

required even a temporary stay of execution is that the

State waited until six days before the scheduled execution

date to unveil its latest plans for a “cut-down” surgical

procedure and then persisted in those plans rather than

conducting settlement discussions as suggested by the

district court below — discussions that Mr. Nelson’s counsel

expressed an immediate willingness to pursue.’

* Constitutional issues concerning the particular method by which

a State undertakes to access a prison inmate’s veins can arise in

situations having nothing to do with a scheduled execution. If the State

required venous access to Mr. Nelson for HIV or other blood testing, or

some other incident of prison existence, and proposed to obtain it

through the use of unqualified personnel in a medically inappropriate

manner that creates a needless risk of pain, Mr. Nelson could bring a

§ 1983 action alleging essentially the same cause of action. And here,

indeed, the State originally proposed addressing Mr. Nelson’s medical

problems twenty-four hours before his scheduled execution. J.A. 11.

" During an in-chambers telephone conference, the district court

inquired as to whether there was “any likelihood that you lawyers could

get together and agree on a procedure that would be acceptable to both

sides for the location of the vein.” J.A. 73. In response, Mr. Nelson’s

attorney stated, “I would certainly be open to that.” Jd. Mr. Nelson’s

willingness to resolve this case through such an agreement demon-

strates the baselessness and unfairness of the State’s contention that

Mr. Nelson’s actual intent is to avoid his execution.

6

A. Heck and Preiser Authorize the Review

Sought By Mr. Nelson.

The State argues that Mr. Nelson cannot maintain his

§ 1983 action under Preiser v. Rodriguez, 411 U.S. 475

(1973), and Heck v. Humphrey, 512 U.S. 477 (1994),

because he seeks injunctive relief. The State says that

“(bly its own terms, Heck is inapplicable to Nelson’s suit

which seeks purely injunctive relief rather than monetary

damages.” Resp. Br. 32. Neither Heck nor any other

decision of this Court will support such a reading.

Heck holds that a claim is properly cognizable under

§ 1983 if a judgment in favor of the plaintiff would not

“necessarily imply the invalidity of his conviction or

sentence.” 512 U.S. at 487. Although Heck announced this

rule in the context of a claim for money damages, there is

nothing in Heck’s language or logic to suggest that the rule

is limited to such claims; and Heck has not been so limited

in subsequent decisions. For example, Edwards v. Balisok,

520 U.S. 641 (1997), involved a § 1983 action by a prison

inmate alleging that certain disciplinary hearing proce-

dures violated due process and seeking three types of

relief: (1) money damages; (2) declaratory relief; and (3)

prospective injunctive relief. In remanding the claim for

prospective injunctive relief, the Court observed that

“(o}rdinarily, a prayer for such prospective relief will not

‘necessarily imply’ the invalidity of a previous loss of good

time credits, and so may properly be brought under

§ 1983.” 520 U.S. at 649 (quoting Heck, 512 U.S. at 487).

See also Muhammad v. Close, 124 S. Ct. 1303, 1304 (2004)

(per curiam) (recognizing that Edwards “applied Heck in

the circumstances of a § 1983 action claiming damages

and equitable relief for a procedural defect in a prison

administrative process. . . .”) (emphasis added).

In any event, the rules laid down by Preiser and by

Heck do not differ in any way that is material for present

purposes. The rule of Preiser is that a state prisoner must

proceed by way of habeas corpus and cannot file an action

under § 1983 when “challenging the very fact or duration

of his physical imprisonment.” 411 U.S. at 500. Preiser

precludes a § 1983 suit for an injunction if — but only if —

“the relief [that the plaintiff] seeks is a determination that

he [or she] is entitled to immediate release or a speedier

release from ... imprisonment.” Jd. Mr. Nelson’s § 1983

suit seeks no such relief, and Preiser therefore does not

bar it.

B. A Federal Court Has Authority to Grant the

Relief Sought by Mr. Nelson Under § 1983.

Mr. Nelson’s request for a stay of execution to enable

the district court to adjudicate his Eighth Amendment

challenge to the proposed “cut-down” procedure before it

was used on him did not take his suit “outside § 1983's

ambit.” Resp. Br. 12. There is no basis for the State’s

contention that “[blecause a request for a stay of execution

entails a federal interference with state penal interests at

least as grave — if not more so — than the request for

speedier release at issue in Preiser, federal courts may not

stay impending executions under § 1983.” Resp. Br. 12; see

also id. at 40-42. This Court has repeatedly held that

federal courts are empowered to enjoin a state’s unconsti-

tutional conduct; and in Mitchum v. Foster, 407 U.S. 225,

243 (1972), the Court recognized that § 1983 suits are

“expressly authorized” exceptions to the Anti-Injunction

8

statute, 28 U.S.C. § 2283." Mitchum, indeed, observed that

“(t]he very purpose of § 1983 was to interpose the federal

courts between the States and the people, as guardians of

the people’s federal rights — to protect the people from

unconstitutional action under color of state law, ‘whether

that action be executive, legislative, or judicial.” Jd. at

242: cf. Pennsylvania v. Union Gas, 491 U.S. 1, 41-42

(1989) (Scalia, J., concurring) (noting that the Civil Rights

Act of 1871 was intended to be a “limitation|[ | of the power

of the States and enlargement] of the power of Con-

gress”), overruled on unrelated grounds by Seminole Tribe

of Florida v. Florida, 517 U.S. 44 (1996).° Across a wide

* 28 U.S.C. § 2283 provides that a federal court may not grant an

injunction staying state court proceedings “except as expressly author-

ized by Act of Congress, or where necessary in aid of its jurisdiction, or

to protect or effectuate its judgments.”

* Mr. Nelson does not suggest that Mitchum exempts § 1983 suits

from comity concerns or from requirements that a plaintiff pursue

appropriate state procedures for redress before resorting to federal

court. However, because Mr. Nelson here did exhaust all available state

procedures, his ultimate recourse to federal court was proper. Mr.

Nelson gave the State every possible opportunity to address his

concerns administratively. There are no applicable formal grievance

procedures at the Holman Correctional Facility, but he and his counsel

made repeated efforts to communicate with the warden and the

Department of Corrections. J.A. 25-26, 27-28, 92. The State did not

raise any claim of non-exhaustion of state remedies in the district court

or identify any other administrative processes that Mr. Nelson could

have pursued but did not. Its belated non-exhaustion arguments should

not be heard in this Court in the first instance. They are either waived

or, to the extent that they have not been waived and that they have any

remotely colorable foundation, they can be addressed on the basis of

informed local knowl se after adequate factual development in the

district court on remand. Cf. Muhammad v. Close, 124 S. Ct. 1303, 1307

(2004) (per curiam) (a defense is waived if the defendant failed to raise

it below “when its legal and factual premises could have been liti-

gated”).

~~ i

9

range of circumstances, this Court has not hesitated to

intervene or uphold federal intervention in state proceed-

ings when an individual claiming the protection of a

federal constitutional right would otherwise be subject to

the irremediable denial of that right” or could not assert

the right elsewhere." See generally Ex parte Young, 209

U.S. 123 (1908). In his principal brief at page 34 n.28, Mr.

Nelson cited a number of cases in which federal courts

have granted or upheld stays of execution pending the

outcome of a § 1983 action.” “And this Court long ago

© The double jeopardy cases are paradigmatic. See, e.g., Smalis v.

Pennsylvania, 476 U.S. 140, 143 n.4 (1986) (concluding that the Court

had jurisdiction under 28 U.S.C. § 1257(3) to address a double jeopardy

issue arising from the Pennsylvania Supreme Court’s determination

that the defendant, previously acquitted due to insufficiency of the

evidence, could be retried); Harris v. Washington, 404 U.S. 55, 56-57

(1971) (per curiam) (approving federal court intervention when the

state courts refused to dismiss a prosecution challenged on double

jeopardy grounds).

" See, e.g., Zablocki v. Redhail, 434 U.S. 374, 380 n.5 (1978)

(holding that abstention principles do not bar a federal suit challenging

the constitutionality of a marriage statute when there is no currently

pending state court proceeding in which to raise the challenge);

Gerstein v. Pugh, 420 U.S. 103, 126 (1975) (upholding a federal suit that

challenged pretrial detention of state criminal defendants without a

probable cause hearing, because the harm of allegedly unconstitutional

pretrial 1 .carceration could not be remedied in or by any ongoing state

court proceedings); Gibson v. Berryhill, 411 U.S. 564, 572 (1973)

(approving a federal suit challenging ongoing state license-revocation

proceedings where the licensing board was found to be biased against

the plaintiff); see also Heck v. Humphrey, 512 U.S. 477, 503 (1994)

(Souter, J., concurring).

“ The State and its amici inaccurately state that the Sixth and

Eighth Circuits have adopted a bright line rule that “federal courts lack

jurisdiction to stay executions under § 1983.” See Resp. Br. 40; Br. of

Ohio, et al., as Amici Curiae 9. However, neither circuit has assumed

such a position. See In re Sapp, 118 F.3d 460, 463-64 (6th Cir. 1997)

(Continued on following page)

10

recognized that federal injunctive relief against a state

court proceeding can in some circumstances be essential to

prevent great, immediate, and irreparable loss of a per-

son’s constitutional rights.” Mitchum, 407 U.S. at 242.

There are ample safeguards against potential abuses of

this federal injunctive authority, making it unnecessary

and imprudent to deny the authority altogether.” Jd. at

243.

Il. EVEN IF MR. NELSON'S § 1983 COMPLAINT

WERE TO BE TREATED AS A HABEAS COR-

PUS PETITION, IT WOULD NOT BE BARRED

AS A SUCCESSOR BECAUSE, LIKE THE HA-

BEAS PETITION AT ISSUE IN MARTINEZ-

VILLAREAL, IT PRESENTS A CLAIM THAT

WAS NOT RIPE AT THE TIME OF ANY PRIOR

HABEAS PROCEEDINGS.

The State argues at length in its brief that the Eighth

Amendment issue presented by Mr. Nelson’s § 1983 action

could not meet the requirements for a successive habeas

corpus filing under 28 U.S.C. § 2244(b). Mr. Nelson does

not dispute that and never has. Rather, Mr. Nelson has

(examining the merits of plaintiff’s § 1983 claim despite plaintiff’s

request for a stay of execution); Young v. Hayes, 218 F.3d 850, 853 (8th

Cir. 2000) (granting a stay of execution based on plaintiff’s § 1983

complaint challenging the constitutionality of clemency procedures).

* Defendants in § 1983 actions can seek early dismissal of the

proceedings under FED. R. Civ. PRO. 12(b) or move for prompt judgment

on the pleadings pursuant to Rule 12(c) or Rule 56. And in cases

brought by prison inmates, a district court can summarily dismiss a

petition on its own motion under 42 U.S.C. § 1997e(c) if it appears to be

“frivolous, malicious, [or] fails to state a claim on which relief can be

granted....”

11

simply pointed out that if this Court deems that habeas

corpus is the preferred procedure for resolving the consti-

tutional issues raised by his unique circumstances, the

recharacterization of his § 1983 complaint as a habeas

corpus application would not require its preclusion as a

second or successive application. On this point, Stewart v.

‘* When questioned by the district court below, counsel for Mr.

Nelson acknowledged that Mr. Nelson had “been through the federal

system and the state system at least once” and that “if this was a

successive 2254, we would certainly have to get permission” from the

court of appeals to file it. J.A. 64. He also acknowledged that Mr.

Nelson’s constitutional challenge to the warden’s proposed cut-down

procedure for obtaining venous access would not meet the

§ 2244(bX2\By\ii) requirement for “gatekeeper” permission because

“obviously, Your Honor, I mean our claim does not have anything to do

with factual innocence.” J.A. 70. But counsel nowhere conceded that Mr.

Nelson’s § 1983 complaint would be a “successive 2254” if it were

treated as a habeas petition. See generally J.A. 64-65, 69-70, 72. The

court of appeals misread the record when it took the view (in footnote 2

of its opinion, at J.A. 119-20) that counsel’s concession went that far.

Counsel’s first response to the district court’s question “Why have you

waited until now [to file the challenge to the “cut-down” procedure)”

was that “it really didn’t become ripe until he got to Holman.” J.A. 65.

The district court then pressed counsel with questions as to whether

this circumstance would bring the case within § 2244(b)(2)(B) (see, e.g.,

J.A. 69: “Why couldn’t this fall within a factual predicate that wasn’t

discovered previously?”) and counsel replied that even if the new-

factual-predicate requirement of § 2244(b)(2)(B)(i) were satisfied, the

factual-innocence requirement of § 2244(b)(2)(B)(ii) would not be; thus,

counsel was concerned that under the Eleventh Circuit's habeas

precedents, gatekeeper permission could not possibly be obtained. The

district court continued to explore the basis for this concern and counsel

continued to explain that he could not expect to get “gatekeeper”

authorization from the Eleventh Circuit if he sought it on the theory

that Mr. Nelson’s present proceeding was a second or successive habeas

application:

(THE COURT]: But let’s get back to the habeas issues.

So you’re saying that under 2244, you can’t challenge a

last minute claim of cruel and unusual punishment in the

(Continued on following page)

12

Martinez-Villareal, 523 U.S. 637 (1998), is clear and

unmistakably controlling. Pet. Br. 36-37.

The State devotes curiously little attention and no

real analysis to Martinez-Villareal. While Martinez-

Villareal’s competency-to-be-executed claim had been

raised in an earlier petition than the one this Court held

entertainable without “gatekeeper” authorization under 28

U.S.C. § 2244(b\3), that fact was not important in this

Court’s reasoning. Instead, the Court focused on the fact

that the claim was not ripe until after Martinez-Villareal’s

initial habeas corpus proceedings had been concluded and

thus could not have been raised in those previous proceed-

ings. Id. at 643, 645 (at the point when “it became clear

that [Martinez-Villareal] would have no federal habeas

relief for his conviction or his death sentence, and the

Arizona Supreme Court issued a warrant for his execu-

tion ... [h}is claim then [became] unquestionably ripe”;

manner of execution, assuming those facts did not arise un-

til the last minute. That’s your concern, Mr. McIntyre?

MR. McINTYRE: Judge, I’m sorry, would you say it

one more time?

THE COURT: Is your concern that you might not be

able to raise an Eighth Amendment claim to the manner of

execution even if those facts that give rise to the claim did

not arise until the last minute?

MR. McINTYRE: Yes.

THE COURT: As long as you were subject to a succes-

sive petition rule. ;

MR. McINTYRE: Yes.

J.A. 71-72 (emphasis added).

-

Y ane

Sdn

13

Martinez-Villareal “brought his claim in a timely fashion,

and it has not been ripe for resolution until now”).”®

Just as the competency-to-be-executed claim in

Martinez-Villareal was previously unripe and therefore

outside the purview of the “second or successive habeas

corpus application” provisions of § 2244(b)(2) and (3), Mr.

Nelson’s claim did not ripen until the State proposed using

a “cut-down” procedure to gain venous access, long after

all normal federal habeas corpus proceedings in Mr.

Nelson’s case had been finally adjudicated. It bears repeat-

ing — the more so because of the State’s efforts to obscure

these central facts in a cloud of concealing dust — that:

(1) Alabama did not even have lethal injection

as its means of execution when Mr. Nelson’s

single federal habeas corpus proceeding was

finally decided adversely by the United

States Court of Appeals for the Eleventh

Circuit in June of 2002;

(2) Mr. Nelson could not possibly have com-

plained about the warden’s plans to employ

a “cut-down” procedure for obtaining venous

access until

(a) Alabama adopted lethal injection as its

mode of execution, and

It is true that the Court in Martinez-Villareal left open the

question whether the claim would have been cognizable if it had not

been presented in Martinez-Villareal’s initial federal habeas corpus

petition. Jd. at 645 n.*. But nothing in the rationale of Martinez-

Villareal can logically support a distinction between previously-

presented-but-unripe claims and claims not previously presented

because they were unripe.

14

(b) the warden decided and announced his

plans regarding the “cut-down” proce-

dure, which

(c) the warden did not announce —- and ap-

parently did not even decide — until

about a week before Mr. Nelson’s

scheduled execution in October of 2003.

Under these extraordinary circumstances,” the State’s

position that Mr. Nelson’s sole means of challenging the

“cut-down” procedure is a “second or successive” habeas

petition ineluctably dismissible as such amounts to the

self-same _ either-too-early-or-too-late-and-therefore-never

argument that the Court in Martinez-Villareal rejected as

“perverse.” Id. at 638."

'* The extreme novelty of the circumstances of Mr. Nelson’s case is

evident when one considers the number of lethal injections in the

United States that have occurred without reported problems related to

a prisoner’s medical condition. Nationwide, there have been approxi-

mately 734 executions by lethal injection since 1976, and in only a few

cases has an issue about compromised veins been reported. See DEATH

PENALTY INFORMATION CENTER, SEARCHABLE DATABASE OF EXECUTIONS,

available at http://www.deathpenaltyinfo.org/executions.php (last visited

Mar. 15, 2004) (indicating that 734 people have been executed by lethal

injection since 1976); Cooper v. Rimmer, __ F.3d __, No. 04-99001, 2004

WL 232377 (9th Cir. Feb. 8, 2004) (questioning the propriety of a

potential cut-down procedure); Reid v. Johnson, No. 03-7916 (4th Cir.

Dec. 17, 2003) (order granting stay of execution), motion to vacate stey

denied sub nom., Johnson v. Reid, 124 S. Ct. 980 (2003) (same).

" See also, e.g., James v. Walsh, 308 F.3d 162, 168 (2d Cir. 2002)

(holding that when a subsequent habeas petition contains a new claim

that could not have been raised in the prior habeas petition, the court

will not consider that newly discovered claim successive) (citing Galtieri

v. United States, 128 F.3d 33, 37-38 (2d Cir. 1997)); Hill v. Alaska, 297

F.3d 895, 899 (9th Cir. 2002) (holding that claims relating to a pris-

oner’s parole that were never addressed by a district court and could

(Continued on following page)

15

Ill. THERE ARE NO PROCEDURAL BARRIERS TO

REVIEW OF MR. NELSON’S CLAIM.

The State argues for the first time in its merits brief

to this Court that Mr. Nelson’s claim is “in all likelihood

barred by Teague v. Lane, 489 U.S. 288 (1989).” Resp. Br.

21. But the State never raised any Teague contention in

the lower courts or in its Brief in Opposition to Certiorari

and its Teague defense should not be entertained here.

See, e.g., Godinez v. Moran, 509 U.S. 389, 397 n.8 (1993);

Schiro v. Farley, 510 U.S. 222, 229 (1994). The State’s

Teague contention is vacuous in any event, because Mr.

Nelson seeks no new rule of constitutional criminal proce-

dure that would implicate Teague. His claim neither

“breaks new ground [njor imposes a new obligation on

the States or the Federal Government.” Teague, 489 U.S.

at 301. The State’s obligation to avoid the infliction of

unnecessary pain in carrying out an execution has been

not have been presented in earlier petitions were not successive;

therefore, the prisoner need not obtain “gatekeeper” permission to file

his petition); Crouch v. Norris, 251 F.3d 720, 725 (8th Cir. 2001)

(holding that a “petition, which neither raises a claim challenging

[petitioner’s] conviction or sentence that was or could have been raised

in his earlier petition, nor otherwise constitutes an abuse of the writ, is

not ‘second or successive’ for purposes of § 2244(b)”); In re Cain, 137

F.3d 234, 236-37 (5th Cir. 1998) (“Congress did not intend for the

interpretation of the phrase ‘second or successive’ to preclude federal

district courts from providing relief for an alleged procedural due

process violation relating to the administration of a sentence of a

prisoner who has previously filed a petition challenging the validity of

his conviction or sentence, but is nevertheless not abusing the writ.”);

Nguyen v. Gibson, 162 F.3d 600, 601 (10th Cir. 1998) (dismissing claim

under Ford v. Wainwright, 477 U.S. 399 (1986) that could have been

raised in prisoner’s first habeas petition, but specifically noting that it

would be a different situation if the prisoner’s claim only became known

after his first federal habeas petition was filed).

16

established constitutional law for more than half a cen-

tury. See Louisiana ex rel. Francis v. Resweber, 329 U.S.

459, 463 (1947).

The State contends alternatively that “Nelson has

made no effort whatsoever to exhaust his state remedies

... [although] 28 U.S.C. § 2254(c) ... [requires that an]

inmate must exhaust ‘any available procedure’ for raising

his claim in state court.” Resp. Br. 20. This, too, is a point

entirely without merit. At the time when Mr. Nelson’s

Eighth Amendment claim arose, there were no state court

procedures available through which he could raise it. The

Alabama courts refuse to entertain constitutional chal-

lenges to procedures relating to an execution after a

condemned inmate’s two-year statute of limitations for

post conviction filings under Rule 32 of the Alabama Rules

of Criminal Procedure has passed,” even when a claim

rests on newly discovered evidence.” And the procedures

suggested by the State (Resp. Br. 46) for requesting the

Alabama Supreme Court to postpone setting an execution

date have no application to Mr. Nelson’s situation precisely

because his federal constitutional claim does not go to the

fact of his execution or its timing as such but solely to the

‘* See Tarver v. State, 761 So. 2d 266 (Ala. Crim. App. 2000).

Pursuant to ALA. R. CRIM. P. 32.2(c) Mr. Nelson had two years from the

date on which his direct appeal was concluded in the state court system

to file his state post conviction petition. Mr. Nelson’s direct appeal was

concluded on September 24, 1996. Thus, his state postconviction

petition was due September 24, 1998.

* See Tarver v. State, 769 So. 2d 338 (Ala. Crim. App. 2000). In any

event, Mr. Nelson could not have sought relief on a theory of newly

discovered evidence because the facts underlying his claim do not go to

factual innocence, and newly-discovered-evidence claims must meet the

factual innocence requirement of ALA. R. CRIM. P. 32.1(e) to be cogniza-

ble in state postconviction proceedings.

——————

17

way the warden plans to accomplish venous access physi-

cally. Because there is “an absence of available State

corrective process” for this claim, its exhaustion is neither

possible nor required. 28 U.S.C. § 2254(b)(1)(B)(i).

¢

CONCLUSION

The State’s brief offers no grounds on which the

decision below can be upheld. The Court of Appeals should

be reversed and the case remanded for a determination of

the merits of Mr. Nelson’s federal constitutional claim that

the “cut-down” procedure would constitute the infliction of

cruel and unusual punishment forbidden by the Eighth

Amendment.

Respectfully submitted,

MICHAEL KENNEDY MCINTYRE*

H. VICTORIA SMITH

507 The Grant Building

44 Broad Street, N.W.

Atlanta, GA 30303

404-688-0900

BRYAN A. STEVENSON

LAJUANA DAVIS

EQUAL JUSTICE INITIATIVE

OF ALABAMA

122 Commerce Street

Montgomery, AL 36104

334-269-1803

Counsel for Petitioner

David L. Nelson

*Counsel of Record

March 19, 2004