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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 1046

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0011%3A11. Public record. Not legal advice.