PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-9334
ELLIS WAYNE FELKER,
LARRY GRANT LONCHAR,
Plaintiffs-Appellants,
versus
TONY TURPIN, WAYNE GARNER,
JOHN DOE,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Georgia
(November 13, 1996)
Before TJOFLAT, COX and DUBINA, Circuit Judges.
PER CURIAM:
Ellis Wayne Felker and Larry Grant Lonchar (collectively
"Plaintiffs") are Georgia inmates under sentence of death. On
November 8, 1996, less than one week prior to their scheduled
executions, they filed a
42 U.S.C. § 1983 action in the Middle
District of Georgia. In their complaint, they alleged that
Georgia's use of electrocution to carry out a death sentence
constitutes cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments. They requested declaratory and
injunctive relief. Following review of arguments and affidavits,
the district court issued an order denying their request for a
preliminary injunction and declaratory relief, concluding that
they had no chance of success on the merits. The court then
entered final judgment denying relief. Plaintiffs now appeal.
Plaintiffs have filed a motion for expedited oral argument
and review. The request that review be expedited is GRANTED.
The request for oral argument is DENIED. We now address the
merits of Plaintiffs' appeal, which presents a single issue:
whether the district court erred as a matter of law in denying
relief on their Eighth Amendment claim.
I. RELEVANT PROCEDURAL HISTORY
Prior to filing their § 1983 complaint, Plaintiffs filed
separate
28 U.S.C. § 2254 petitions for writs of habeas corpus in
the Middle District of Georgia. In Lonchar's petition, Lonchar
challenged, among other things, the constitutionality of Georgia's
method of execution. Upon Lonchar's motion, the district court
dismissed the petition with prejudice. In Felker's petition,
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Felker challenged the constitutionality of his conviction and
sentence, but did not challenge Georgia's method of execution. In
1995, we affirmed denial of that petition. See Felker v. Thomas,
52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing,
62
F.3d 342 (11th Cir. 1995), cert. denied,
116 S.Ct. 956 (1996).
II. DISCUSSION
A. § 1983 CLAIM SUBJECT TO SECOND OR SUCCESSIVE HABEAS RULES
Guided by Gomez v. United States District Court,
503 U.S. 653,
112 S.Ct. 1652 (1992), as interpreted by Lonchar v. Thomas,
116
S.Ct. 1293, 1301 (1996), we conclude that Plaintiffs' § 1983 claim
is subject to the procedural requirements for bringing a second or
successive habeas claim.
In Gomez, the Court refused to consider the merits of a
plaintiff's cruel and unusual punishment claim brought under § 1983
where the plaintiff did not raise that claim in his earlier habeas
petitions. According to the Court, habeas rules would apply, even
"
if § 1983 [was] also a proper vehicle for his 'method of execution'
claim...." Lonchar,
116 S.Ct. at 1301 (interpreting Gomez). In
other words, Gomez held that a plaintiff cannot escape the rules
regarding second or successive habeas petitions by simply filing a
§ 1983 claim.
We treat Plaintiffs' § 1983 cruel and unusual punishment claim
as the functional equivalent of a second habeas petition, see
Gomez,
112 S.Ct. at 1653 (1992), and apply the rules regulating
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second or successive habeas petitions.1 Because Plaintiffs failed
to apply for permission to file a second habeas petition as
required by
28 U.S.C. § 2244(b)(3)(A), as amended by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, tit. I (1996), the district court was without authority to
consider their request for relief.
Moreover, the facts alleged do not show that Felker could meet
the § 2244(b)(2) requirements for filing a second or successive
petition. Specifically, his cruel and unusual punishment claim
neither "relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court,
that was previously unavailable;" nor has a "factual predicate
[that] could not have been discovered previously through the
exercise of due diligence...." See
28 U.S.C. § 2244(b)(2).
Therefore, we would have denied any application for permission to
file a second habeas petition made by Felker.
Lonchar could not present his claim in a second habeas
petition because he presented the exact same claim in his previous
federal habeas petition. "A claim presented in a second or
successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed."
28 U.S.C. §
2244(b)(1).
1
In light of Gomez , we decline to follow Sullivan v.
Dugger,
721 F.2d 719, 720 (11th Cir. 1983), to the extent that it
can be read to imply that a petitioner may bring a cruel and
unusual punishment claim under § 1983 without being subject to the
procedural rules governing second or successive petitions.
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B. § 1983 CLAIM AS DISTINCT FROM SECOND OR SUCCESSIVE HABEAS
PETITION
Even if we were to assume that Plaintiffs' action was properly
brought under § 1983 and not subject to habeas procedural
requirements, we would conclude the district court properly denied
Plaintiffs' claim for relief.
In light of overwhelming precedent, we conclude there is no
merit in Plaintiffs' claim that death by electrocution constitutes
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. See In re Kemmler,
136 U.S. 436, 443-44,
10
S.Ct. 930, 932 (1890); Porter v. Wainwright,
805 F.2d 930, 943 n.
15 (11th Cir. 1986); Funchess v. Wainwright,
788 F.2d 1443, 1446
(11th Cir.), cert. denied,
475 U.S. 1133,
106 S.Ct. 1668 (1986);
Sullivan v. Dugger,
721 F.2d 719, 720 (11th Cir. 1983); Spinkellink
v. Wainwright,
578 F.2d 582, 616 (5th Cir. 1978). Moreover, their
contention in the district court that "there has never been an
evidentiary hearing on the effects of execution by electrocution
since the first capital defendant was killed under this method,"
Memorandum of Law in Support of Application for Preliminary
Injunction and Complaint for Declaratory and Injunctive Relief
Pursuant to
42 U.S.C. § 1983 at 6, is simply untrue. See e.g.
Sawyer v. Whitley,
772 F.Supp. 297, 307 (E.D. La. 1991)(considering
expert evidence before rejecting Eighth Amendment claim regarding
death by electrocution); Thomas v. Jones,
742 F.Supp. 598, 606-608
(S.D. Ala. 1990)(same); Buenoano v. Dugger, No. 90-473-CIV-ORL-19,
unpublished at 31-35 (M.D. Fla. June 22, 1990)(same); Ritter v.
Smith,
568 F.Supp. 1499, 1525 (S.D. Ala. 1983)(same), aff'd in part
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and rev'd in part on other grounds ,
726 F.2d 1505, 1519 (11th
Cir.), and cert. denied,
469 U.S. 869,
105 S.Ct. 218 (1984).
Furthermore, Lonchar's claim is barred because of the doctrine
of issue preclusion. Under that doctrine, Lonchar is precluded
from asserting a § 1983 claim that Georgia's use of electrocution
to carry out a death sentence is unconstitutional because he raised
that issue in his prior federal habeas petition. See Quarles v.
Sager,
687 F.2d 344, 346 (11th Cir. 1982)(discussing preclusive
effect that federal habeas petition could have on a § 1983 claim);
Hawkins v. Risley,
984 F.2d 321, 323 (9th Cir. 1993)("[A] prior
federal habeas decision may have preclusive effect in a § 1983
action [even though the converse is not true].").
III. CONCLUSION
Whether analyzed as a § 2254 claim or a § 1983 claim,
Plaintiffs' claim for relief fails for the above reasons.
Therefore, the judgment of the district court is affirmed.
AFFIRMED.
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