Michael Nance v. Commissioner, Georgia Department of Corrections ( 2020 )

USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 1 of 50
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11393
________________________
D.C. Docket No. 1:20-cv-00107-JPB
MICHAEL NANCE,
Plaintiff-Appellant,
versus
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________
(December 2, 2020)
Before WILLIAM PRYOR, Chief Judge, MARTIN and LAGOA, Circuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether a method-of-execution claim that
would have the necessary effect of preventing the prisoner’s execution should be
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 2 of 50
brought as a civil-rights action, 42 U.S.C. § 1983, or as a petition for a writ of
habeas corpus, 28 U.S.C. § 2254. Michael Wade Nance argues that Georgia’s
lethal-injection protocol, as applied to his unique medical situation, violates the
Eighth Amendment and that the firing squad is a readily available alternative. He
sued under section 1983 for an injunction to bar the State from executing him by
lethal injection—the only method of execution under Georgia law. See Ga. Code
§ 17-10-38(a). To be sure, the Supreme Court has permitted prisoners to seek relief
under section 1983 when a prisoner’s proposed alternative method of execution
“would have allowed the State to proceed with the execution as scheduled” under
current state law. Nelson v. Campbell, 541 U.S. 637, 646 (2004). But Nance
complains that the Constitution bars Georgia from executing him by any method of
lethal injection, regardless of the protocol. The Supreme Court has mentioned the
possibility of a complaint like Nance’s on three occasions and warned that it might
not be cognizable under section 1983. See Bucklew v. Precythe, 139 S. Ct. 1112,
1128 (2019); Hill v. McDonough, 547 U.S. 573, 582 (2006); Nelson, 541 U.S. at
644. We now decide it is not. Because the injunction Nance seeks would
necessarily imply the invalidity of his death sentence, his complaint must be
reconstrued as a habeas petition. And because that petition is second or successive,
we vacate and remand with instructions to dismiss for lack of jurisdiction.
2
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 3 of 50
I. BACKGROUND
In 1993, Nance went to a bank in Gwinnett County, Georgia, pulled a ski
mask over his face, threatened the tellers with a gun, and left with two pillowcases
full of cash. After Nance got into his car, dye packs hidden in the stolen cash
exploded. He then decided to abandon the vehicle. He crossed the street to a
nearby liquor store, where he found Gabor Balogh backing his car out of a parking
space. Nance ran around the front of Balogh’s car, yanked open the door, and
pointed his gun at Balogh. As Balogh pleaded for his life, Nance pulled the trigger
and shot him dead.
A jury convicted Nance of murder in 1997, and he was sentenced to death.
He was resentenced to death after a new sentencing trial in 2002, and the Georgia
Supreme Court affirmed that sentence on direct appeal. The Georgia Supreme
Court rejected his petition for collateral relief in 2013. Nance then filed a federal
habeas petition, see 28 U.S.C. § 2254, and we affirmed the order denying that
petition.
Nance filed this civil-rights action, see 42 U.S.C. § 1983, on January 8,
2020, and alleged that the State’s lethal-injection protocol was unconstitutional as
applied to him because of two medical issues. First, he alleged that, due to his
compromised veins, he would be subjected to excruciating pain during attempts to
establish venous access for his execution, that he would be subjected to painful
3
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 4 of 50
leakage of the injection drug even if venous access was established, and that the
State’s alternative methods to establish venous access would not be performed
humanely. Second, he alleged that his use of gabapentin, a drug that he has been
prescribed for his back pain since 2016, had altered his brain chemistry in a way
that would diminish the efficacy of the lethal injection drug and leave him sensate
and in extreme pain during his execution. Nance alleged that death by firing squad
was a feasible and readily implemented alternative method of execution that would
significantly reduce his substantial risk of severe pain. He sought a declaratory
judgment as well as “injunctive relief to enjoin the [State] from proceeding with
[his] execution . . . by a lethal injection.”
The State moved to dismiss Nance’s complaint on January 30, 2020. It
argued that Nance’s claim was untimely, that he failed in his complaint to allege
sufficient facts to support a plausible claim for relief, and that he failed to exhaust
his administrative remedies. The district court granted the State’s motion to
dismiss. It concluded that Nance’s suit was untimely and that he failed to state a
claim for relief with respect to his venous-access theory because he did not allege
plausible facts establishing that his compromised veins created the requisite risk of
suffering for a valid claim under the Eighth Amendment. After Nance appealed,
we directed the parties to address at oral argument whether Nance’s complaint
4
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 5 of 50
should be reconstrued as a habeas petition and, if so, whether it was second or
successive.
II. STANDARD OF REVIEW
We are obligated to address subject-matter jurisdiction sua sponte. Mallory
& Evans Contractors & Eng’rs, LLC v. Tuskegee Univ., 663 F.3d 1304, 1304 (11th
Cir. 2011). A district court lacks subject-matter jurisdiction over a state prisoner’s
second or successive petition for a writ of habeas corpus absent an order from the
court of appeals authorizing it to consider the petition. Williams v. Chatman, 510
F.3d 1290, 1295 (11th Cir. 2007).
III. DISCUSSION
To succeed in a method-of-execution challenge under the Eighth
Amendment, a prisoner “must show a feasible and readily implemented alternative
method of execution that would significantly reduce a substantial risk of severe
pain and that the State has refused to adopt without a legitimate penological
reason.” Bucklew, 139 S. Ct. at 1125 (citing Glossip v. Gross, 576 U.S. 863, 869–
78 (2015), and Baze v. Rees, 553 U.S. 35, 52 (2008) (plurality opinion)). In most
method-of-execution challenges, prisoners satisfy the alternative-method
requirement of the Baze-Glossip test by alleging that the State could make changes
to its lethal-injection protocol that would significantly reduce the prisoner’s risk of
pain. See, e.g., Jordan v. Comm’r, Miss. Dep’t of Corr., 947 F.3d 1322, 1325 (11th
5
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 6 of 50
Cir. 2020) (prisoners alleged that single-injection protocol might reduce risk of
pain and was a known and available alternative to State’s three-drug protocol).
Nance takes a different approach.
Nance alleges that death by firing squad is a feasible and readily
implemented alternative method of execution, and he seeks an injunction barring
the use of lethal injection. But Georgia law authorizes execution only by lethal
injection. See Ga. Code § 17-10-38(a). It is not necessarily fatal to the merits of
Nance’s claim that the State does not authorize his alleged alternative method of
execution. See Bucklew, 139 S. Ct. at 1128 (“[T]he Eighth Amendment is the
supreme law of the land, and the comparative assessment it requires can’t be
controlled by the State’s choice of which methods to authorize in its statutes.”).
But a court considering the merits of a complaint like Nance’s must “inquire into
the possibility that one State possessed a legitimate reason for declining to adopt”
the alleged alternative method. Id. And alleging an alternative method of execution
that is not authorized by the State’s law not only complicates the merits of a
method-of-execution challenge; it has procedural implications as well.
We divide our discussion of those procedural implications in two parts. First,
we explain that Nance’s complaint must be reconstrued as a habeas petition
because an injunction preventing the State from executing a prisoner under its
present law necessarily implies the invalidity of that prisoner’s sentence. Second,
6
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 7 of 50
we explain that Nance’s habeas petition is second or successive and that the district
court lacked jurisdiction to consider it.
A. A Section 1983 Claim for Relief That Would Prevent a State from
Executing a Prisoner Under Present Law Must be Reconstrued as a
Habeas Petition.
Two statutes establish the procedural landscape for method-of-execution
claims. Section 1983 authorizes “an action at law, suit in equity, or other proper
proceeding for redress” against any person who, under color of state law,
“subjects . . . any citizen of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution . . . .” 42 U.S.C. § 1983. This
general language covers Nance’s suit: the Eighth Amendment secures the right not
to be subjected to a “method of execution [that] cruelly superadds pain to the death
sentence.” Bucklew, 139 S. Ct. at 1125. But a specific statute controls over a
general one, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts § 28, at 183 (2012), and the more-specific federal habeas statute, 28
U.S.C. § 2254, provides an exclusive remedy when it applies, Preiser v. Rodriguez,
411 U.S. 475, 490 (1973).
Prisoners challenging their convictions or the duration of their sentences
proceed exclusively through habeas, and prisoners challenging the conditions of
their confinement proceed exclusively through section 1983. “Congress has
determined that habeas corpus is the appropriate remedy for state prisoners
7
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 8 of 50
attacking the validity of the fact or length of their confinement, and that specific
determination must override the general terms of [section] 1983.” Id. Because a
prisoner’s challenge to the fact of his conviction or duration of his sentence falls at
the “core of habeas corpus,” such a challenge may not be brought in a complaint
under section 1983. Id. at 489. By contrast, a suit that does not “seek[] a judgment
at odds with [a prisoner’s] conviction or . . . sentence” may be brought only under
section 1983. Muhammad v. Close, 540 U.S. 749, 754–55 (2004). “[A
section] 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact or
length of his custody.” Preiser, 411 U.S. at 499. In sum, “[i]ssues sounding in
habeas are mutually exclusive from those sounding in a [section] 1983 action.”
McNabb v. Comm’r, Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th Cir. 2013).
Situating method-of-execution claims in this landscape presents a “difficult
question.” Nelson, 541 U.S. at 644. Method-of-execution claims often fall in an
uncertain area near the line between section 1983 and habeas, where “[n]either the
‘conditions’ nor the ‘fact or duration’ label is particularly apt.” Id. The Supreme
Court has never held that a challenge to a method of execution was not cognizable
as a complaint under section 1983. But the Court has repeatedly cautioned that
there could be a type of method-of-execution challenge that would be cognizable
only in habeas. And this appeal concerns exactly that type of challenge. We first
8
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 9 of 50
review the guidance provided by the Supreme Court before turning to the
unanswered question presented in this appeal.
The Supreme Court first considered the possibility that a method-of-
execution claim might be cognizable only in habeas in Nelson v. Campbell, 541
U.S. 637. Nelson involved a challenge, under section 1983, to the contemplated use
of a “cut-down” procedure to gain access to a prisoner’s compromised veins for
lethal injection. Id. at 641–42. The State argued that the prisoner’s complaint
should be construed as a habeas petition because, if successful, it would prevent
the State from carrying out his execution. Id. at 645. The Court rejected that
argument because the cut-down procedure was not indispensable to the execution;
in fact, the prisoner had “alleged alternatives that, if they had been used, would
have allowed the State to proceed with the execution as scheduled.” Id. at 646. But
the Court stated in dicta that some method-of-execution challenges might still be
cognizable only in habeas: “In a State . . . where the legislature has established
lethal injection as the preferred method of execution, a constitutional challenge
seeking to permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself.” Id. at 644 (citation omitted).
The Supreme Court revisited the boundary between section 1983 and habeas
in Hill v. McDonough, 547 U.S. 573. In Hill, a prisoner filed a complaint under
section 1983 seeking an injunction to prevent the State from proceeding with its
9
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 10 of 50
planned lethal-injection protocol; he alleged that the drug to be used for the first
injection was not a suitable anesthetic for the administration of the second and
third drugs. Id. at 578. The Supreme Court reiterated its dicta in Nelson that “a
constitutional challenge seeking to permanently enjoin the use of lethal injection
may amount to a challenge to the fact of the sentence itself.” Id. at 579 (quoting
Nelson, 541 U.S. at 644). But the prisoner in Hill “concede[d] that other methods
of lethal injection the [State] could choose to use would be constitutional,” id. at
580 (internal quotation marks omitted), and the State did not argue that “granting
[the prisoner’s] injunction would leave the State without any other practicable,
legal method of executing [him] by lethal injection,” id. Because “injunctive relief
would not prevent the State from implementing the sentence,” the Court said that
“the suit as presented would not be deemed a challenge to the fact of the sentence
itself” and that it was cognizable under section 1983. Id. at 579–80. But the Court
left open the possibility that “recharacterizing a complaint as an action for habeas
corpus might be proper” in a method-of-execution challenge where “the relief
sought would foreclose execution.” Id. at 582.
The most recent guidance from the Court on the question whether a method-
of-execution claim may be brought under section 1983 came last year in Bucklew
v. Precythe, 139 S. Ct. 1112. And the Court once again repeated its warnings in
Nelson and Hill. The main holding of Bucklew was that as-applied challenges to a
10
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 11 of 50
method of execution, like facial challenges, under the Eighth Amendment, must
plead an alternative method of execution. Id. at 1126 (citing Glossip, 576 U.S. at
878, and Baze, 553 U.S. at 61). But, the Court noted, “[a]n inmate seeking to
identify an alternative method of execution is not limited” by the Baze-Glossip test
under the Eighth Amendment “to choosing among those presently authorized by a
particular State’s law.” Id. at 1128. That concern was not implicated in Bucklew
itself, because the prisoner’s alleged alternative to lethal injection was authorized
under state law. Id. at 1121; Mo. Rev. Stat. § 546.720. But it was nonetheless
important to clarify the point, because inferior courts—including this one—had
understood Baze and Glossip to mean that the Eighth Amendment requires a
prisoner to “identify an alternative that is ‘known and available’ to the state in
question,” meaning that unauthorized alternatives did not satisfy the test. Arthur v.
Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1317 (11th Cir. 2016) (emphasis
added), abrogated in part by Bucklew, 139 S. Ct. 1112. Still, the Supreme Court
made clear that the Baze-Glossip test is not friendly to an “inmate [who] is more
interested in . . . delaying his execution” than in “avoiding unnecessary pain.”
Bucklew, 139 S. Ct. at 1129. And to avoid opening the floodgates to abusive
litigation based on its clarification of the alternative-method requirement, the Court
cautioned that “existing state law might be relevant to determining the proper
11
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 12 of 50
procedural vehicle for the inmate’s claim,” 139 S. Ct. at 1128, even if it had no
bearing on the prisoner’s substantive right under the Eighth Amendment.
And so, the Supreme Court made it clear in Nelson, Hill, and Bucklew that it
is an open question whether section 1983 can support a claim that would “foreclose
the State from implementing [a] lethal injection sentence under present law.” Hill,
547 U.S. at 583; see also Bucklew, 139 S. Ct. at 1128 (relying on Hill). The dissent
says that we “assume the role of the Supreme Court” by “anticipat[ing] that the
Supreme Court has overruled its own precedent.” Dissenting Op. at 29, 38. But the
Supreme Court was clear in Nelson, Hill, and Bucklew that it has no precedent on
this question to overrule. The Supreme Court has left it for us to decide in the first
instance whether a claim for relief that would prevent a state from implementing a
death sentence under its current law must be brought as a civil complaint under
section 1983 or as a habeas petition. This appeal squarely presents that question.
Nance argues that circuit precedent establishes that his claim is cognizable
under section 1983 and that the Supreme Court’s parenthetical in Bucklew is only
“a curiosity” that does not undermine that precedent. But the decisions he cites are
inapposite. Nance argues that in McNabb, 727 F.3d 1334, we held that method-of-
execution challenges are never cognizable in habeas. We disagree. McNabb
involved a challenge to the State’s lethal-injection protocol based on the argument
that “an ineffective first drug or improper administration of a first drug in a three-
12
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 13 of 50
drug protocol would violate the constitution.” Id. at 1344. That claim is
indistinguishable from the claim in Hill that the Supreme Court allowed to proceed
under section 1983. 547 U.S. at 578.
We explained in McNabb that “[u]sually, . . . challenges [to] a state’s
method of execution . . . [are] not an attack on the validity of [a prisoner’s]
conviction and/or sentence,” 727 F.3d at 1344 (emphasis added), and accordingly
held that “a [section] 1983 lawsuit, not a habeas proceeding, is the proper way to
challenge lethal injection procedures,” id. (alteration adopted) (emphasis added)
(internal quotation marks omitted). McNabb did not announce a categorical rule for
all method-of-execution challenges; it addressed only challenges to specific lethal
injection procedures, and its holding clearly left open the question this appeal
presents.
Nance also argues that we considered a complaint under section 1983 that
would have prevented the State from carrying out a death sentence under present
law in Ledford v. Commissioner, Georgia Department of Corrections, 856 F.3d
1312 (11th Cir. 2017), but we never considered whether the complaint should have
been construed as a habeas petition. Nance is correct that his complaint is similar
to the prisoner’s complaint in Ledford; both Nance and Ledford argued that
gabapentin would have a bad interaction with the State’s execution drug, id. at
1317, and both alleged the firing squad as an alternative method of execution
13
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 14 of 50
rather than offer changes to the State’s injection protocol, id. at 1317–18. But we
did not hold in Ledford that a complaint that would leave a State unable to carry
out a death sentence could be brought under section 1983.
We denied relief in Ledford for a multitude of independently sufficient
reasons: we concluded that the prisoner’s complaint was untimely, id. at 1316; that
he did not establish a substantial risk of severe pain for his substantive right under
the Eighth Amendment, id. at 1317; that his firing-squad argument did not satisfy
the substantive requirement under the Eighth Amendment that he plead an
alternative method of execution that was feasible and readily implemented under
state law, id. at 1317–18 (citing Arthur, 840 F.3d at 1315–18, abrogated in part by
Bucklew, 139 S. Ct. 1112); and that he had not established entitlement to the
equitable relief requested in his last-minute challenge, id. at 1319. A decision that
does not catalog every independently sufficient reason for denying relief does not
create a binding precedent with respect to the alternative reasons it does not
discuss. This rule is particularly important in the context of an unaddressed
jurisdictional defect like lack of permission to file a second-or-successive habeas
petition. 28 U.S.C. § 2244(b)(3)(A); Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996)
(“[W]e have repeatedly held that the existence of unaddressed jurisdictional
defects has no precedential effect.”). Ledford’s silence on the prisoner’s use of
section 1983 instead of habeas has no precedential effect.
14
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 15 of 50
We failed in Ledford to recognize the jurisdictional error in allowing a
prisoner to bring a section 1983 claim that would have left the State unable to carry
out his death sentence because we believed—erroneously, as Bucklew later
revealed—that no such claim even existed under the Eighth Amendment as a
matter of substantive law. When we decided Ledford our precedents held that the
Eighth Amendment required prisoners to allege an alternative method of execution
authorized under state law. See Arthur, 840 F.3d at 1316, abrogated in part by
Bucklew, 139 S. Ct. 1112. Based on our misunderstanding of the alternative-
method requirement under Baze and Glossip, we ruled in Ledford that the prisoner
failed to state a claim because his complaint did not allege an alternative method of
lethal injection, and that his firing-squad argument was not a permissible
alternative to doing so. Ledford, 856 F.3d at 1317–18 (citing Arthur, 840 F.3d at
1316). We do not have a binding precedent establishing the proper vehicle for a
claim for relief that would prevent a state from implementing a death sentence
under its current law.
A complaint seeking an injunction against the only method of execution
authorized in a state must be brought in a habeas petition, because such an
injunction necessarily implies the invalidity of the prisoner’s death sentence. “The
line of demarcation between a [section] 1983 civil rights action and a
[section] 2254 habeas claim is based on the effect of the claim on the inmate’s . . .
15
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 16 of 50
sentence.” McNabb, 727 F.3d at 1344 (internal quotation marks omitted). “[I]f the
relief sought by the inmate would either invalidate his conviction or sentence or
change the nature or duration of his sentence, the inmate’s claim must be raised in
a [section] 2254 habeas petition, not a [section] 1983 civil rights action.”
Hutcherson v. Riley, 468 F.3d 750, 754 (11th Cir. 2006).
Because Nance’s requested relief would prevent the State from executing
him, implying the invalidity of his death sentence, it is not cognizable under
section 1983 and must be brought in a habeas petition. This conclusion follows
from the decisions in Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards v.
Balisok, 520 U.S. 641 (1997), in which the Supreme Court distinguished between
complaints under section 1983 and habeas petitions. Although the Heck line of
cases involved civil-rights actions for damages, the Supreme Court has suggested
that the logic of Heck also applies in the context of method-of-execution
challenges. In both Nelson and Hill, the Supreme Court made clear that its decision
was “consistent with Heck’s and Balisok’s approach to damages actions that
implicate habeas relief,” Hill, 547 U.S. at 583 (citing Nelson, 541 U.S. at 646–47),
and suggested that the parallel analysis between the two fields followed from the
fact that “civil rights damages actions . . . , like method-of-execution challenges,
fall at the margins of habeas,” Nelson, 541 U.S. at 646.
16
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 17 of 50
In Heck, the Supreme Court proceeded from the fact “that [section] 1983
creates a species of tort liability,” 512 U.S. at 483 (internal quotation marks
omitted), and explained that the relationship of section 1983 to the common law of
torts comes with limitations on the kinds of claims cognizable under it. Citing “the
hoary principle that civil tort actions are not appropriate vehicles for challenging
the validity of outstanding criminal judgments,” id. at 486, the Court held that
“when a state prisoner seeks damages in a [section] 1983 suit, the district court
must consider whether a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence” and, if so, dismiss the complaint unless
the plaintiff showed a favorable termination of the underlying criminal proceeding,
id. at 487. The Court clarified this principle in Balisok, where it held that a “claim
for declaratory relief and money damages, based on allegations . . . that necessarily
imply the invalidity of the punishment imposed, is not cognizable under
[section] 1983.” 520 U.S. at 648.
In the light of the principle distilled in Heck and Balisok, the Supreme Court
in Hill described the inquiry for determining whether a method-of-execution claim
is cognizable under section 1983 as being “whether a grant of relief to the inmate
would necessarily bar the execution.” 547 U.S. at 583 (emphasis added). The word
“necessarily” is key to the Heck inquiry, and it explains why Nance’s complaint is
different from the prisoners’ complaints in Nelson and Hill. We have noted that the
17
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 18 of 50
concept of “logical necessity . . . is at the heart of the Heck opinion,” Dyer v. Lee,
488 F.3d 876, 879 (11th Cir. 2007), and explained that this “emphasis on logical
necessity is a result of the Court’s underlying concern in Heck: that [section] 1983
and the federal habeas corpus statute . . . were on a collision course,” id. at 880(internal quotation marks omitted). The Heck inquiry prevents prisoners from
making “an ‘end-run’ around habeas,” but when there is no necessary logical
connection between relief under section 1983 and the negation of a conviction or
sentence, there is no concern about an end-run and no need to apply Heck. Id. Both
Nelson and Hill are examples of decisions that did not implicate the concern
expressed in Heck about end-runs around the habeas statutes.
The Supreme Court allowed the complaints under section 1983 in Nelson
and Hill to proceed because the relief sought in each case did not necessarily imply
the invalidity of the prisoner’s death sentence, even if, as the State argued in Hill,
the claim would “frustrate the execution as a practical matter.” 547 U.S. at 583.
The requested injunction against the use of a cut-down procedure for venous
access in Nelson, 541 U.S. at 641–42, did not necessarily imply the invalidity of
the prisoner’s death sentence because the fact “[t]hat venous access is a necessary
prerequisite [to carrying out a death sentence] does not imply that a particular
means of gaining such access is likewise necessary,” id. at 645. The State could
potentially carry out the death sentence with a different method of venous access.
18
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 19 of 50
And the requested injunction against the use of an allegedly inadequate anesthetic
as part of the injection protocol in Hill, 547 U.S. at 578, did not necessarily imply
the invalidity of the prisoner’s death sentence because the “obvious necessity” of
“the injection of lethal chemicals” does not by itself mean that a particular
combination of drugs chosen by the State is a necessary prerequisite to carrying out
a death sentence, id. at 581. That is, the injunction would not ban the state from
carrying out the death sentence using a different injection protocol.
In this appeal, unlike in Nelson and Hill, a judgment in Nance’s favor would
imply the invalidity of his death sentence—not only as a practical matter, but as a
matter of logical necessity. In his complaint, Nance asked the district court to
“[g]rant injunctive relief to enjoin the [State] from proceeding with [his]
execution . . . by a lethal injection.” Lethal injection is necessary to carry out any
death sentence in Georgia, because lethal injection is the only method of execution
authorized under Georgia law. See Ga. Code § 17-10-38(a). Unlike the injunctions
in Nelson and Hill, the injunction Nance seeks would prevent his execution from
being carried out, necessarily implying the invalidity of his death sentence.
There is no way to read Nance’s complaint to avoid the collision between
section 1983 and habeas that the Supreme Court contemplated in Heck, and given
that conflict, the specific terms of the habeas statute must override the general
terms of section 1983. See Preiser, 411 U.S. at 490. Habeas and section 1983 are
19
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 20 of 50
mutually exclusive. McNabb, 727 F.3d at 1344. And based on the lines drawn by
the Supreme Court in Heck, Nelson, and Hill, Nance’s claim falls beyond the outer
border of section 1983 and is cognizable only in habeas.
To be sure, a judgment in Nance’s favor implies the invalidity of his
sentence as a matter of logical necessity only if we take Georgia law as fixed. Even
if Nance prevails in this suit, the State could respond by enacting a law authorizing
execution by firing squad. And Nance does not contest—at least for now—that the
State could constitutionally carry out his death sentence if it did so.
But section 1983 complaints are “civil tort actions,” which means that they
are not “appropriate vehicles for challenging the validity of outstanding criminal
judgments.” Heck, 512 U.S. at 486. So it is not our place to entertain complaints
under section 1983 that ask us to force a State to fundamentally overhaul its system
of capital punishment. “[T]he Constitution affords a ‘measure of deference to a
State’s choice of execution procedures.’” Bucklew, 139 S. Ct. at 1125 (quoting
Baze, 553 U.S. at 52 n.2).
For purposes of determining whether a method-of-execution challenge
sounds in section 1983 or habeas, a federal court must accept as fixed a state law
providing a facially constitutional method of execution. That is particularly so
when a would-be section 1983 complainant insists that the State resort to a method
of execution that it has already determined is less humane than the alternatives. See
20
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 21 of 50
id. at 1128 (“[A] court [must] inquire into the possibility that one State possessed a
legitimate reason for declining to adopt the protocol of another.”). If we sanction
Nance’s decision to proceed under section 1983 by refusing to take the State’s law
as fixed, we must effectively interpret Nance’s complaint as a request for an
injunction directing the State to either enact new legislation or vacate his death
sentence. By doing so, we invite a collision with more than the habeas statute. Cf.
New York v. United States, 505 U.S. 144, 188 (1992).
No matter how you read it, Nance’s complaint attacks the validity of his
death sentence. It is cognizable only as a habeas petition, and we must evaluate it
as such.
B. Nance’s Petition is Second or Successive.
Because Nance’s complaint is a habeas petition, we must determine whether
it is second or successive. When a prisoner effectively, even if not formally, raises
a new habeas claim without first obtaining this Court’s permission to file a second
or successive petition, the district court lacks subject-matter jurisdiction to consider
the petition. Franqui v. Florida, 638 F.3d 1368, 1375 (11th Cir. 2011). Nance did
not move this Court for permission to file his petition, so the district court lacked
jurisdiction if the petition was second or successive. See 28 U.S.C.
§ 2244(b)(3)(A).
21
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 22 of 50
Under the normal rule, Nance’s petition is second or successive. See
Patterson v. Sec’y, Fla. Dep’t of Corr., 849 F.3d 1321, 1325 (11th Cir. 2017).
Nance already brought a habeas petition contesting his death sentence. Nance v.
Warden, Ga. Diagnostic Prison, 922 F.3d 1298 (11th Cir. 2019). As we have
explained above, he effectively contested the validity of that sentence a second
time when he brought this section 1983 action. Because Nance did not move this
Court for permission to file a second or successive petition, section 2244(b)
required the district court to dismiss the suit for lack of jurisdiction. Even if Nance
had asked us to allow his second or successive petition, we could not have done so
because the petition does not satisfy either the requirements of section 2244(b)(2).
Nance’s petition does not rely on a new rule of constitutional law made retroactive
to his case by the Supreme Court, 28 U.S.C. § 2244(b)(2)(A), nor is it predicated
on newly discovered facts establishing that no reasonable factfinder could have
found him guilty, id. § 2244(b)(2)(B).
Nance argues that a different second-or-successive rule controls as-applied
method-of-execution claims, and that his petition is not second or successive
because he filed it as soon as his claim was ripe. He relies primarily on the
Supreme Court’s decision in Panetti v. Quarterman, 551 U.S. 930 (2007). In
Panetti, a prisoner filed a habeas petition raising issues about his competency to
stand trial and waive his right to counsel, but not his competency to be executed.
22
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 23 of 50
Id. at 937. Those claims were denied. Id. He later filed another habeas petition in
which he argued that he was insane and, therefore, not competent to be executed
under Ford v. Wainwright, 477 U.S. 399 (1986). Panetti, 551 U.S. at 934–35, 938.
The State argued that because the prisoner’s first habeas petition failed to raise a
Ford claim, his second-in-time petition—which did raise a Ford claim—was
second or successive. Id. at 942. The Supreme Court rejected the State’s
interpretation of section 2244 because it would put prisoners in the position of
either “forgo[ing] the opportunity to raise a Ford claim in federal court[,] or
rais[ing] the claim in a first federal habeas application . . . even though it [would
be] premature.” Id. at 943. The Court reasoned that “Congress did not intend the
provisions of [the Antiterrorism and Effective Death Penalty Act] addressing
‘second or successive’ petitions to govern a filing in the unusual posture presented
[by] a [section] 2254 application raising a Ford-based incompetency claim filed as
soon as that claim is ripe,” id. at 945, and it held that “[t]he statutory bar on
‘second or successive’ applications does not apply to a Ford claim brought in an
application filed when the claim is first ripe,” id. at 947.
As we have observed, “the [Supreme] Court was careful to limit its holding
[in Panetti] to Ford claims.” Tompkins v. Sec’y, Dep’t of Corr., 557 F.3d 1257,
1259 (11th Cir. 2009). But Nance says that this appeal is indistinguishable from
Panetti because his petition also involves a challenge based on facts existing at the
23
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 24 of 50
time of a contemplated execution and brought as soon as that claim was ripe.
Nance’s reliance on Panetti assumes that the decision established a rule that a
prisoner is entitled to one full and fair opportunity to challenge his sentence
through habeas, and that the accrual of a new challenge entitles him to a new
opportunity to file a petition.
The Supreme Court rejected Nance’s reading of Panetti in Magwood v.
Patterson, 561 U.S. 320 (2010). In Magwood, a prisoner was sentenced to death at
a second sentencing trial after successfully challenging his original death sentence
through habeas. Id. at 326. He filed another habeas petition, which was dismissed
as second or successive because it challenged an alleged error repeated in the first
and second sentencing trials that could have been challenged in the first habeas
petition. Id. at 328–29. The Supreme Court reversed, id. at 343, reasoning that the
“first [habeas petition] challenging [a] new judgment cannot be ‘second or
successive’ such that [section] 2244(b) would apply,” id. at 331. Four dissenters
objected that the Court’s opinion did not apply the rule in Panetti as they
understood it: that “to determine whether an application is ‘second or successive,’
a court must look to the substance of the claim the application raises and decide
whether the petitioner had a full and fair opportunity to raise the claim in the prior
application.” Id. at 345 (Kennedy, J., dissenting). But the Court did more than just
apply a different rule. In fact, the Court’s opinion explicitly rejected the “full and
24
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 25 of 50
fair opportunity” interpretation of section 2244(b) that Nance would extract from
Panetti.
Nance and the Magwood dissenters’ “full and fair opportunity”
interpretation of Panetti, the Court explained, leads to “fundamental error.” Id. at
335. “Under the . . . ‘one opportunity’ rule, . . . the phrase ‘second or successive’
would not apply to a claim that the petitioner did not have a full and fair
opportunity to raise previously.” Id. (emphasis omitted). That result is erroneous,
the Court recognized, because the language of section 2244 describes petitions
with claims based on intervening caselaw or newly discovered facts as second or
successive. See 28 U.S.C. § 2244(b)(2). And it does so despite the fact that “[i]n
either circumstance, a petitioner cannot be said to have had a prior opportunity to
raise the claim,” Magwood, 561 U.S. at 335, which would make them not second
or successive under a “one opportunity” rule. The “full and fair opportunity”
reading of Panetti is foreclosed by the text of the statute. Magwood did not directly
undermine Panetti by deciding that a “[habeas petition] challenging the same state-
court judgment must always be second or successive.” Id. at 335 n.11. But the
Court did reject a broad reading of Panetti’s exception to the second-or-successive
bar in section 2244, and the Magwood dissenters lamented that, in doing so, the
Court “confin[ed] the holding of Panetti to the facts of that case.” Id. at 350(Kennedy, J., dissenting).
25
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 26 of 50
Panetti’s holding is tailored to the context of Ford claims. And because the
considerations informing the Supreme Court’s adoption of the rule in that context
do not obtain in the context of as-applied method-of-execution challenges, we do
not extend Panetti in this appeal. Panetti was motivated by a desire to avoid
putting prisoners in the position of either “forgo[ing] the opportunity to raise a
Ford claim in federal court[,] or rais[ing] the claim in a first federal habeas
application . . . even though it [would be] premature.” Panetti, 551 U.S. at 943.
That concern is far more serious in the Ford context than it is in the context of an
as-applied method-of-execution claim. A Ford claim always challenges the fact of
a death sentence itself, see Ford, 477 U.S. at 410 (“The Eighth Amendment
prohibits the State from inflicting the penalty of death upon a prisoner who is
insane.”), and must therefore be brought in a habeas petition and never under
section 1983, see Nelson, 541 U.S. at 643 (“[Section] 1983 must yield to the more
specific federal habeas statute . . . where an inmate seeks injunctive relief
challenging the fact of his conviction or the duration of his sentence.”). Without
the ability to file an additional habeas petition, a prisoner whose mental health
deteriorates after his first habeas petition has no way to bring a Ford claim in
federal court. In contrast, a prisoner whose physical health deteriorates following
his first habeas petition may rely on section 1983 to minimize the risk of pain
during his execution—with the caveat that he seek relief designed to accommodate
26
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 27 of 50
his state’s authorized methods of execution to his unique health factors instead of
an injunction that would effectively serve as a permanent stay of his execution.
Nance could have filed a complaint under section 1983 to demand changes
to the State’s lethal-injection protocol that would accommodate his weak veins and
past gabapentin usage and thus mitigate the risk of a needlessly painful execution.
Instead, he demanded death by firing squad and dared the legislature to call his
bluff. Applying the normal test for a second or successive habeas petition instead
of the special Panetti rule does not prevent any prisoner from bringing a method-
of-execution challenge in federal court—“assuming, of course, that [he] is more
interested in avoiding unnecessary pain than in delaying his execution.” Bucklew,
139 S. Ct. at 1129. The fact that the Antiterrorism and Effective Death Penalty Act
prevents prisoners from bringing second or successive petitions designed to
undermine the effectiveness of the death penalty is part of the statutory design, not
a justification for extending Panetti.
The ordinary meaning of a second or successive petition applies in this
appeal. Nance already challenged his death sentence in habeas once. This petition
is second or successive, and the district court should have dismissed it for lack of
jurisdiction under section 2244(b).
27
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 28 of 50
IV. CONCLUSION
We VACATE the order dismissing Nance’s complaint as untimely and
REMAND with instructions to dismiss for lack of jurisdiction.
28
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 29 of 50
MARTIN, Circuit Judge, dissenting:
Michael Wade Nance is a Georgia prisoner who has been sentenced to die
for his crime. Georgia law establishes a protocol for taking Mr. Nance’s life by
lethal injection. For death penalty cases, one would expect federal courts to
respect precedent and deliver predictability. Yet the majority’s ruling offers chaos
instead—not only for Mr. Nance, but for everyone on death row in Georgia,
Alabama, and Florida. This opinion creates chaos because it plainly violates at
least two principles firmly established by Supreme Court and Eleventh Circuit
precedent. Specifically the majority opinion violates the well-established
principles from our precedent that: (1) require method of execution claims to be
brought as claims pursuant to 42 U.S.C. § 1983; and (2) instruct federal courts of
appeals not to anticipate that the Supreme Court has overruled its own precedent,
but instead to wait for the Court to expressly tell us it has done so. Surely it is the
role of the courts to provide predictable and reliable processes for those facing
their death at the hands of the State. We have failed to perform that role here.
Mr. Nance brought suit under 42 U.S.C. § 1983 seeking to have the District
Court order the Defendants, the Commissioner of the Georgia Department of
Corrections and the Warden of Georgia Diagnostic and Classification Prison, not
to execute him using Georgia’s current execution policies, because doing so would
violate his Eighth and Fourteenth Amendment rights. Mr. Nance alleges there is a
29
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 30 of 50
substantial risk that executing him according to Georgia’s lethal injection protocol
will “lead[] to a prolonged execution that will produce excruciating pain” because
his veins are “extremely difficult to locate through visual examination, and those
veins that are visible are severely compromised and unsuitable for sustained
intravenous access.”
Notably, the mistakes with Mr. Nance’s case did not begin in our court. The
District Court dismissed Mr. Nance’s complaint under Federal Rule of Civil
Procedure 12(b)(6), which requires a court to accept all factual allegations in the
complaint as true and “draw all reasonable inferences in the plaintiff’s favor.”
West v. Warden, Comm’r, Ala. DOC, 869 F.3d 1289, 1296 (11th Cir. 2017)
(applying Rule 12(b)(6) standard to § 1983 suit challenging the constitutionality of
Alabama’s lethal injection protocol). The District Court did quite the opposite
here, conducting its own evaluation of Mr. Nance’s claims and finding, for
example, that his claims were “false.” When this type of mistake happens in a
district court, Eleventh Circuit precedent requires this Court to conduct a de novo
review to determine whether the plaintiff has alleged facts that, if true, would state
a method of execution claim (and, if so, reverse the District Court’s dismissal).
See id. at 1300–01. Yet Mr. Nance has not received the benefit of this well-
established process.
30
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 31 of 50
It is from this obvious error made by the District Court that Mr. Nance
appealed. But rather than litigate this issue as expected, the lawyers handling this
case were seemingly blindsided by a direction from this Court to be prepared to
answer whether Mr. Nance properly brought his claim under § 1983, or whether
his claim “amount[s] to a challenge to the fact of his sentence itself that must be
reconstrued as a habeas petition.” Counsels’ surprise was evidenced, for example,
by a statement from counsel for Georgia who told us, “candidly,” at oral argument,
that “this was a situation that until we got this order from the Court, we had – we
had grown accustomed to dealing with these in [§] 1983.” See Oral Argument
Recording at 26:58–27:32 (Oct. 14, 2020). Mr. Nance and his attorneys rose to
this unexpected challenge and offered several examples of why construing Nance’s
claim as a habeas petition is error under Eleventh Circuit precedent. See id. at
12:45–15:06. Nevertheless the majority opinion departs from our precedent. The
majority justifies its disregard for precedent by saying the Supreme Court has
“mentioned the possibility” that a complaint like Mr. Nance’s “might not be
cognizable” under § 1983. See Maj. Op. at 2.
I regret that I must dissent in what should have been a case we easily
remanded to the District Court so it could correct its errors.
31
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 32 of 50
I.
Georgia law provides that the single method for executing death row
prisoners is lethal injection. See O.C.G.A. § 17-10-38(a). On its own, the majority
raised the issue of whether Mr. Nance’s § 1983 claim challenging Georgia’s lethal
injection protocol is actually a challenge to the fact of his sentence such that it
must be construed as a habeas petition. The correct answer is a resounding no.
Mr. Nance is not saying he should not be executed. He has apparently accepted his
fate. Rather, he is merely asking our court to direct the State to execute him by a
different method because the State’s lethal injection method violates his
constitutional rights.
The majority opinion makes several related errors in ruling on Mr. Nance’s
action that result in the creation of a new category of cases—subject to new
procedural rules—not recognized by the Supreme Court. The majority does away
with the established line of demarcation between a § 1983 civil rights action and a
habeas petition. See Maj. Op. at 15–20. In doing so, it calls this Court’s decision
in Ledford v. Commissioner, Georgia Department of Corrections, 856 F.3d 1312(11th Cir. 2017), “erroneous[],” and proceeds to dismiss Ledford’s substantive
analysis in an effort to support its procedural conclusion. Maj. Op. at 15; see id. at
13–15. But for all the majority’s talk of distinguishing the substantive
requirements of Eighth Amendment claims from the rights and remedies in § 1983
32
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 33 of 50
actions, the majority can point to no concrete holding—in any decision by the
Supreme Court or this Circuit—that supports today’s decision requiring Mr. Nance
to bring his Eighth Amendment method-of-execution claim by way of a habeas
petition.
A. MR. NANCE HAS ALLEGED A FEASIBLE, READILY IMPLEMENTED
ALTERNATIVE METHOD FOR HIS EXECUTION UNDER BUCKLEW.
To begin, the Supreme Court’s ruling in Bucklew does not support the
majority’s holding that Mr. Nance’s claim must be brought in a habeas petition.
Neither does any other Supreme Court case. To the contrary, ample binding
precedent compels us to conclude that method of execution claims must be brought
in a § 1983 action. See, e.g., Nelson v. Campbell, 541 U.S. 637, 642, 124 S. Ct.
2117, 2122 (2004) (reversing this Court’s holding “that § 1983 claims challenging
the method of execution necessarily sound in habeas”); Hill v. McDonough, 547
U.S. 573, 576, 578, 126 S. Ct. 2096, 2100–01 (2006) (reversing this Court’s
holding that the § 1983 action was a successive habeas petition because the suit
was “comparable in its essentials” to Nelson); Baze v. Rees, 553 U.S. 35, 52, 128
S. Ct. 1520, 1532 (2008) (plurality opinion) (holding that in a § 1983 action,
plaintiffs are required to plead and prove a known and available alternative in order
to state an Eighth Amendment claim); Glossip v. Gross, 576 U.S. 863, 879, 135 S.
Ct. 2726, 2738 (2015) (characterizing Hill as holding “that a method-of-execution
claim must be brought under § 1983 because such a claim does not attack the
33
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 34 of 50
validity of the prisoner’s conviction or death sentence”); Tompkins v. Sec’y, Dep’t
of Corr., 557 F.3d 1257, 1261 (11th Cir. 2009) (per curiam) (“A § 1983 lawsuit,
not a habeas proceeding, is the proper way to challenge lethal injection
procedures.”); Valle v. Singer, 655 F.3d 1223, 1229 n.6 (11th Cir. 2011) (per
curiam) (affirming District Court’s finding that “Valle challenges the
constitutionality of the execution procedure he is scheduled to undergo. Such
challenges are appropriately brought under § 1983.”); Boyd v. Warden, Holman
Corr. Facility, 856 F.3d 853, 865 (11th Cir. 2017) (“Following Nelson and Hill, we
have entertained method-of-execution challenges to specific aspects of a state’s
lethal injection protocol pursuant to § 1983.”). Even in the face of all of this
precedent, the majority opinion relies on dicta in Bucklew to reach the opposite
conclusion.
Bucklew did two things. It affirmed that a person bringing a method of
execution claim—whether a facial challenge or an as-applied challenge—must
meet the requirements set out by the Supreme Court in Baze-Glossip. Bucklew,
139 S. Ct. at 1122, 1129. To that end, Bucklew said that a prisoner “seeking to
identify an alternative method of execution [under the Baze-Glossip test] is not
limited to choosing among those [methods of execution] presently authorized by a
particular State’s law.” Id. at 1128 (emphases added). Instead, “a prisoner may
point to a well-established protocol in another State as a potentially viable option.”
34
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 35 of 50
Id. In this way, the Supreme Court gave substantive guidance in Bucklew for what
is required to state a method of execution claim. It said “the Eighth Amendment is
the supreme law of the land, and the comparative assessment it requires can’t be
controlled by the State’s choice of which methods to authorize in its statutes.” Id.“In light of this,” and recognizing that the burden to show this prong is often
“overstated,” the Supreme Court saw “little likelihood that an inmate facing a
serious risk of pain will be unable to identify an available alternative.” Id. at
1128–29.
Of course, Bucklew also said that “existing state law might be relevant to
determining the proper procedural vehicle for the inmate’s claim.” Id. at 1128(emphasis added). On this topic, it cited Hill and referenced, in a parenthetical, the
idea 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 582–83, 126 S. Ct. at 2103). The
majority opinion, and the resulting loss of this appeal by Mr. Nance, is based on
this obscure reference in Bucklew.
Yet nothing in Bucklew, nor in any other Supreme Court case I am aware of,
says that when a plaintiff points to an alternative method of execution not
35
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 36 of 50
expressly codified under state law, that plaintiff’s case must sound in habeas. 1 The
Supreme Court has simply never ruled that method-of-execution claims must—or
even should—be brought by way of a habeas petition. Nevertheless the majority
appears to have carved out a new procedural requirement based on this
parenthetical citation in Bucklew. In so doing, the majority ignores at least two
key principles. First, courts may not anticipate that the Supreme Court will
overrule its own precedent. Second, Bucklew (parenthetical included) does not
require method-of-execution claims to be brought in habeas.
Neither does the majority’s opinion appropriately account for this Circuit’s
test for determining whether a claim is properly brought in a civil action or in a
habeas petition. Our Circuit precedent has set the “line of demarcation between a §
1983 civil rights action and a § 2254 habeas claim.” Hutcherson v. Riley, 468 F.3d
750, 754 (11th Cir. 2006). That precedent called upon this panel to look at the
effect Mr. Nance’s claim will have on his sentence. We are required to ask, on the
one hand, does Mr. Nance seek to invalidate his conviction or sentence, or to
change the nature or duration of his sentence? Id.; see also Magwood v. Patterson,
1
A plurality of the Supreme Court could have done so in Baze, when the plaintiff
challenged Kentucky’s method of execution, which statutorily required death sentences “be
executed by continuous intravenous injection of a substance or combination of substances
sufficient to cause death.” Ky. Rev. Stat. Ann. § 431.220(1)(a); see 553 U.S. at 44, 128 S. Ct. at1527–28. Yet Baze said nothing at all about habeas. See id. at 56, 128 S. Ct. at 1534 (holding
that Kentucky’s failure to adopt the proposed alternatives does not, by itself, demonstrate that the
execution procedure is cruel and unusual).
36
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 37 of 50
561 U.S. 320, 332, 130 S. Ct. 2788, 2797 (2010) (“A § 2254 petitioner is applying
for something: His petition seeks invalidation (in whole or in part) of the judgment
authorizing the prisoner’s confinement.” (quotation marks and emphases omitted));
Edward v. Balisok, 520 U.S. 641, 648, 117 S. Ct. 1584, 1589 (1997) (explaining
that only those claims that “necessarily imply the invalidity of the punishment
imposed” are not cognizable under § 1983 (emphasis added)). Or on the other
hand, does Mr. Nance seek to change the “‘circumstances of his confinement’”?
Hutcherson, 468 F.3d at 754 (quoting Hill, 547 U.S. at 579, 126 S. Ct. at 2101).
For me, the remedy Mr. Nance seeks best fits into the category of one relating to
the circumstances of his confinement. He simply is not seeking to “invalid[ate] a
particular death sentence.” See Johnson v. Bredesen, 558 U.S. 1067, 130 S. Ct.
541, 543 (2009) (mem.) (Stevens, J., respecting the denial of certiorari). Mr.
Nance does not challenge or dispute that the State can go forward with his
execution. He is asking that it do so “‘by simply altering its method of
execution.’” Id. (quoting Nelson, 541 U.S. at 644, 124 S. Ct. at 2123).
When properly applied to Mr. Nance’s case, the “line of demarcation” test is
fatal to the analysis in the majority opinion. But the majority makes almost no
effort to analyze Mr. Nance’s case in this way. Rather, it summarily concludes that
because Mr. Nance pointed to an alternative method of execution authorized by
other states, we must interpret his complaint “as a request for an injunction
37
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 38 of 50
directing the State [of Georgia] to either enact new legislation or vacate his death
sentence,” which “would prevent the State from executing him.” See Maj. Op. at
16, 21. Mr. Nance’s case is not the one portrayed by the majority.
B. THE MAJORITY OPINION CREATES A NEW PROCEDURE FOR
BRINGING A METHOD-OF-EXECUTION CLAIM.
The majority seems to assume the role of the Supreme Court here, because it
creates new requirements for method-of-execution claims. Again, it does this
despite the precedent I’ve cited that requires these claims to be brought in a § 1983
action. See Agostini v. Felton, 521 U.S. 203, 237, 117 S. Ct. 1997, 2017 (1997)
(“[I]f a precedent of this Court has direct application in a case, yet appears to rest
on reasons rejected in some other line of decisions, the Court of Appeals should
follow the case which directly controls, leaving to this Court the prerogative of
overruling its own decisions.” (quotation marks omitted)); Evans v. Sec’y, Fla.
Dep’t of Corr., 699 F.3d 1249, 1264 (11th Cir. 2012) (“[W]e have always been
careful to obey the supreme prerogative rule and not usurp the Supreme Court’s
authority to decide whether its decisions should be considered overruled.”). The
State of Georgia was not the one to suggest Mr. Nance’s case requires this new
procedure. See Oral Argument Recording at 26:58–27:32. Indeed, Georgia
acknowledged that the issue (of whether a method-of-execution claim should be
brought in a habeas petition) was not before the Supreme Court in Bucklew. See
id. As if more support were needed, this underscores how the majority has acted
38
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 39 of 50
with an absence of precedent to support its ruling. The job of our panel was to
read the plain language of Bucklew and apply it as binding precedent, like this
Court has done in so many cases before. Instead, the panel itself raised a new issue
for Mr. Nance’s case—theorizing a novel outcome before the parties had even
argued their case. As a result, method-of-execution claims must now be handled
differently in this Circuit. And as for Mr. Nance, this panel has deprived him of a
claim he had every right to pursue. With this loss, Mr. Nance’s execution will
arrive more swiftly, and without his method-of-execution claims ever having been
examined beyond a mere read of his pleadings.
Neither does Mr. Nance’s case offer up such a unique set of facts that we
must depart from the analysis both this Court and the Supreme Court have applied
in every previous method-of-execution case. And today’s ruling disturbs a well-
settled rule of law in a way that does not clarify, but instead harms existing
Supreme Court precedent. The majority opinion will sow confusion. A prisoner
can no longer be certain about the proper procedure for bringing a method-of-
execution claim. The majority’s holding will also invite new litigation—if a
plaintiff’s attorney previously brought a method of execution claim in a § 1983
suit, will the attorney now be found to have been ineffective? I know of no basis
for this panel to take the drastic action of holding that Mr. Nance’s claim should
39
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 40 of 50
have been brought in a habeas petition when no Supreme Court precedent directs
him to.
The majority arrives at its novel ruling in part by describing why this Court’s
decision in Ledford, 856 F.3d 1312, has no bearing on Mr. Nance’s case. See Maj.
Op. at 13–15. To begin, there is very little difference between Mr. Nance’s case
and Mr. Ledford’s case. Ledford was based on similar facts and had the same
procedural posture now before us in Mr. Nance’s case. See id. at 13–14
(acknowledging that Mr. Nance’s allegations are similar to those in Ledford). Mr.
Ledford filed suit under § 1983, alleging “that, because he has taken gabapentin for
a decade,” the dose of pentobarbital required by Georgia’s lethal injection protocol
would “not render him insensate quickly enough and that he will suffer serious
pain during the execution.” Ledford, 856 F.3d at 1316. Mr. Nance alleged the
same facts in addition to his allegations that his veins are too compromised to be
executed by lethal injection. The Ledford court recognized that the lethal injection
protocol challenged by Mr. Ledford was required by Georgia law. Id. at 1315 (“In
October 2001, Georgia adopted lethal injection as its method of execution.” (citing
O.C.G.A. § 17-10-38(a)). And it is worth noting that the Ledford court also
recognized that Mr. Ledford had not alleged that an alternative method of lethal
injection would substantially reduce his risk of severe pain. Id. at 1317–18.
Rather, Mr. Ledford, like Mr. Nance, alleged that a firing squad is a feasible and
40
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 41 of 50
readily implemented method of execution in Georgia that would reduce his risk of
severe pain. Id. at 1318.
Like Mr. Nance, Mr. Ledford brought his claim under § 1983. In contrast to
Mr. Nance, Mr. Ledford suffered no ill effects for failing to bring his claim in a
habeas petition. Mr. Ledford’s panel simply applied well-established precedent to
hold that he was tardy in bringing his claims about the interaction of gabapentin
and pentobarbital as applied to him because he “alleges that he has been taking
gabapentin for approximately a decade.” Id. at 1316. Despite the similarity of the
two cases, the Ledford court did not sua sponte raise the issue the majority opinion
raises and says is “squarely present[ed]” here. Maj. Op. at 12. Of course the
Ledford panel could have, based on the same statement in Hill that was later
restated in the now-touted Bucklew parenthetical. But it did not, again because no
precedent requires or even directs us to hold that method of execution claims are
cognizable in habeas. We should not deviate from the line of demarcation
Ledford—and many other courts—have essentially taken for granted, and apply
the Supreme Court’s procedural directive to Mr. Nance’s case as well.
The majority opinion itself recognizes that the facts of Mr. Nance’s case are
similar to those in Ledford. See Maj. Op. at 13–14. But it avoids explaining the
different procedural approach it takes for Mr. Nance’s case by turning to the
Ledford panel’s substantive analysis of the Eighth Amendment’s alternative-
41
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 42 of 50
method requirement. See id. at 14–15. But this collapses the very distinction
between the “substantive right under the Eighth Amendment” and the procedural
vehicle of § 1983 the majority says it is making. See id. at 14; see also id. at 12
(citing Bucklew, 139 S. Ct. at 1128). Thus it would seem that the majority cannot
disagree with my point that no precedent supports the majority’s new rule that Mr.
Nance must bring his method-of-execution claim in a habeas petition.
It is true that the Ledford panel, as the majority says, did not decide what is
the proper vehicle for bringing a method-of-execution claim.2 See Maj. Op. at 15.
It had no reason to. The proper vehicle for bringing these claims is well-
established and Bucklew’s clarification of the substantive requirements does not
change the procedural ones. This reflects a missing link in the majority’s logic.
See id. at 14–15 (describing Ledford as an erroneous Eighth Amendment ruling
“[b]ased on our misunderstanding of the alternative-method requirement under
Baze and Glossip”). And the majority cannot properly ignore precedent by merely
2
The majority also distinguishes Ledford by saying it did not expressly address any
jurisdictional defect. See Maj. Op. at 14. Perhaps that is because, like here, there was no
jurisdictional defect to be found. Neither is Mr. Nance’s a case that finally brings any purported
jurisdictional issue before us. It resembles Ledford in all key respects but for one: the majority’s
sua sponte invitation to counsel to address the existence of this court-created jurisdictional issue
in Mr. Nance’s case.
42
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 43 of 50
explaining that the judges who decided Ledford misunderstood the alternative-
method requirement under the Baze-Glossip test. See Maj. Op. at 15.3
But for the majority’s strained effort to justify a new category of method-of-
execution claims based on an obscure parenthetical in the Supreme Court’s opinion
in Bucklew, Mr. Nance would win this appeal.
II.
At last, I will address the merits of the appeal Mr. Nance actually filed. The
parties argue about whether Mr. Nance’s method of execution claim is timely and
whether he stated a claim for relief. Assuming that at least Mr. Nance’s
compromised vein claim is timely, 4 we must determine whether Nance’s complaint
3
Taken to its logical end, the majority’s holding would also bless a State’s efforts to
legislate away available alternatives that a litigant could point to in order to satisfy his burden
under Baze-Glossip in a § 1983 action. By limiting the ways an execution can be carried out
under statute, any state can foreclose claims under § 1983 that this Court and the Supreme Court
have historically and repeatedly treated as cognizable under § 1983.
Today the Georgia statute says only that execution must be effected by “lethal injection”;
tomorrow it could mandate lethal injection by a specified three-drug cocktail, or require a
particular procedure to gain intravenous access. But of course, people sentenced to death have
repeatedly brought challenges under § 1983 alleging that certain portions of a lethal injection
protocol or cutdown procedure violates their Eighth Amendment rights. See, e.g., Glossip, 576
U.S. at 867, 135 S. Ct. at 2731 (addressing challenge to Oklahoma’s switch from pentobarbital to
midazolam under § 1983); Nelson, 541 U.S. at 645–46, 124 S. Ct. at 2123–24 (holding that the
challenge to the cut-down procedure to enable the lethal injection was properly brought under
§ 1983). The logical implication of the majority’s ruling is that now a legislature’s selection of
procedures, no matter how narrow or specific, would not only deserve “deference,” Maj. Op. at
20 (quotation marks omitted), but also work to prevent a challenge under § 1983.
4
The parties agree that, for as-applied challenges, “the statute of limitations does not
begin to run until the facts which would support the cause of action are apparent or should be
apparent to a person with a reasonably prudent regard for his rights.” See McNair v. Allen, 515
F.3d 1168, 1173 (11th Cir. 2008). Mr. Nance says his veins are severely compromised, and that
43
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 44 of 50
includes “enough facts to state a claim to relief that is plausible on its face.” Bell
Atl. Co. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007).
Under the Baze-Glossip test, a prisoner challenging the method of his
execution must show two things: “(1) the lethal injection protocol in question
creates a substantial risk of serious harm, and (2) there are known and available
alternatives that are feasible, readily implemented, and that will in fact
significantly reduce the substantial risk of severe pain.” Ledford, 856 F.3d at 1316
(quotation marks omitted) (alteration adopted); see also Bucklew, 139 S. Ct. at1125 (citing Glossip, 576 U.S. at 868–78, 135 S. Ct. at 2732–38; Baze, 553 U.S. at
52, 128 S. Ct. at 1532). This legal framework applies to both facial and as-applied
“medical technicians have difficulty locating a suitable vein” when they seek to draw his blood.
He also alleged that in May 2019, a medical technician told him that the GDOC execution team
would have to use an alternative procedure to gain intravenous access, because they “would not
otherwise be able to obtain sustained intravenous access.” Then, in October 2019, after a
physical examination, Mr. Nance learned there are no discernible veins in his upper or lower
extremities.
From the face of Mr. Nance’s complaint, he affirmatively alleged that he learned about
the condition of his veins—and the impact they would have on his execution—in May 2019 at
the earliest. See Siebert v. Allen, 506 F.3d 1047, 1048–49 (11th Cir. 2007) (recognizing that
knowledge of underlying medical conditions, and thus “factual predicate” for claim, was “in
place” upon diagnosis). Defendants acknowledge that Mr. Nance did plead he became aware of
his “severely compromised and tortured veins in May 2019,” but urge us to read Mr. Nance’s
complaint as “conveniently silent” about the cause of his compromised veins or any change in
his veins. However, a statute of limitations bar is an affirmative defense, and a plaintiff is not
required to negate an affirmative defense in his complaint. La Grasta v. First Union Sec., Inc.,
358 F.3d 840, 845 (11th Cir. 2004); see also Boyd, 856 F.3d at 872 (noting that dismissal of a §
1983 method-of-execution claim is appropriate “only if it is apparent from the face of the
complaint that the claim is time-barred”). Mr. Nance alleged sufficient facts to survive
Defendants’ timeliness challenge. See La Grasta, 358 F.3d at 848 (“[D]epending on what
discovery reveals, the result at the summary judgment stage may or may not be the same.”).
44
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 45 of 50
challenges to a State’s method of execution. See Bucklew, 139 S. Ct. at 1128–29
(“(re)confirm[ing] that anyone bringing a method of execution claim . . . must meet
the Baze-Glossip test”). With these principles in mind, I turn to the elements of
Mr. Nance’s claim.
A. THE DISTRICT COURT ERRED BY MAKING FACTUAL FINDINGS
ABOUT MR. NANCE’S ALLEGATIONS BASED ON HIS PLEADINGS
ALONE.
The District Court made findings of fact and weighed Mr. Nance’s claims
when it ruled on the Defendants’ motion to dismiss under Rule 12(b)(6). Here are
a few examples.
• “In response to Plaintiff’s claim that, because the IV Team is not in
the execution chamber it is ‘very unlikely that they could recognize
[an] extravasation and take timely, appropriate action,’ this Court
finds that the claim is false.” See R. Doc. 26 at 15–16 (emphasis
added) (relying on protocol language that “clearly refutes Plaintiff’s
claim”).
• “While it is possible that Plaintiff may experience pain if the IV Team
unsuccessfully attempts to establish intravenous access, such pain
would be de minimis as it would be no worse than that encountered
when visiting a physician or donating blood.” Id. at 14 (emphasis
added).
• “[T]his court first notes that Plaintiff’s claim [that if cannulation is not
successful the physician will resort to a cutdown procedure] is entirely
speculative because it is based on Plaintiff’s ‘information and belief.’
In fact, it is not at all clear that Georgia would use a cut-down
procedure” based on the GDOC’s Protocol. Id. at 16–17 (citation
omitted).
• “As far as this Court can determine, utilization of a cut-down
procedure in an execution is quite rare. This Court is aware of only
one, or possibly two, cut-down procedures during an execution in the
45
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 46 of 50
United States.” Id. at 17 & n.7 (citing Bucklew, 139 S. Ct. at 1131,
and Nooner v. Norris, 594 F.3d 592, 604 (8th Cir. 2010)).
• “[T]his Court must further presume that,”—contrary to Mr. Nance’s
allegations—“to the degree that a physician must resort to a cutdown
procedure, he will do so in a humane manner[.]” Id. at 18 (emphasis
added).
It is black letter law that “[a] motion to dismiss does not test the merits of a
case.” See Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1037 (11th
Cir. 2008). In deciding a motion to dismiss, courts must accept the allegations in
the complaint as true and construe them in the light most favorable to the plaintiff.
Hunt v. Aimco Props., L.P., 814 F.3d 1213, 1221 (11th Cir. 2016). This rule does
not permit evaluating facts or taking judicial notice of findings of fact in other
cases. Cf. Grayson v. Warden, Comm’r, Ala. Dep’t of Corr., 869 F.3d 1204,
1225–26 (11th Cir. 2017) (holding the issue of “[w]hether compounded
pentobarbital was feasible and ‘readily available’ . . . was a factual issue” specific
to this plaintiff’s case). The District Court violated these well-established
principles here, so it clearly erred in reaching its holding that Mr. Nance failed to
state a claim.
An evaluation of Mr. Nance’s complaint reveals that he has properly alleged
the first element of a method of execution claim based on his compromised veins.
To show that Georgia’s lethal injection protocol “creates ‘a substantial risk of
serious harm,’” Ledford, 856 F.3d at 1316, Mr. Nance alleges, among other things,
46
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 47 of 50
that (1) inserting an intravenous catheter into his veins will be “extremely difficult
and presents a substantial risk that the vein will ‘blow’ and lose its structural
integrity, causing the injected pentobarbital to leak into the surrounding tissue”;
and (2) the likely alternative to intravenous access is a “cutdown procedure.”
These allegations track the allegations of other plaintiffs who have survived a
motion to dismiss.5 Mr. Nance has therefore alleged sufficient facts to show a
substantial risk of harm based on his compromised veins.
B. MR. NANCE PROPERLY ALLEGED THAT A FIRING SQUAD IS A
FEASIBLE AND READILY IMPLEMENTED ALTERNATIVE.
Mr. Nance’s allegations also support the second element of the Baze-Glossip
test: that “there are known and available alternatives that are feasible, readily
implemented, and that will in fact significantly reduce the substantial risk of severe
pain.” Ledford, 856 F.3d at 1316 (quotation marks omitted). He alleges that the
State of Utah has carried out three executions by firing squad since 1976, most
recently in 2010, and Utah’s procedures for doing so are publicly accessible. He
5
For example, in Bucklew, the Supreme Court noted that the plaintiff asserted, among
other things, that the state’s injection protocol “could cause the vein to rupture” and the IV Team
might use a painful cut-down procedure. 139 S. Ct. at 1130. The Supreme Court did not say
these risks could not qualify as substantial risk of severe pain as a matter of law; rather, the Court
rejected these asserted risks because they “rest[ed] on speculation unsupported” at the summary
judgment stage. Id. The Supreme Court made a similar determination in Baze. The Baze
plaintiffs claimed that “it is possible that the IV catheters will infiltrate into surrounding tissue,
causing an inadequate dose to be delivered to the vein.” 553 U.S. at 54, 128 S. Ct. at 1533. The
Supreme Court rejected that risk because the evidence—following “extensive hearings and . . .
detailed findings of fact” by the trial court—showed that Kentucky trained its personnel to
calculate and mix an adequate dose. Id. at 41, 128 S. Ct. at 1526.
47
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 48 of 50
alleges execution by firing squad is “a known and available alternative method”
recognized as permissible by the Supreme Court. Mr. Nance says Georgia has a
“sufficient stockpile or can readily obtain both the weapons and ammunition
necessary” to carry out such an execution. And he alleges a firing squad will result
in a “swift and virtually painless” execution. These allegations are sufficient to
allege that Georgia is “able to implement and carry out” execution by firing squad
“relatively easily and reasonably quickly.” See Boyd, 856 F.3d at 868.
Defendants argue Mr. Nance has done nothing more than “recite[] the formulaic
elements” of this prong, but they place too heavy a burden on Nance at the
pleadings stage. See Bucklew, 139 S. Ct. at 1128–29 (recognizing there is “little
likelihood that an inmate facing a serious risk of pain will be unable to identify an
available alternative”). Mr. Nance has indeed pointed to “well-established
protocol in another State” and alleged that Georgia has the means to carry out this
method of execution. See id. at 1128.
This Court has recognized the viability of execution by firing squad. See
Ledford, 856 F.3d at 1318 (explaining that the firing squad method has “given way
to more humane methods of execution” (quotation marks omitted and alteration
adopted)); Boyd, 856 F.3d at 881 (Wilson, J., concurring in judgment) (“[W]e
know that the firing squad is a straightforward, well-known procedure that has
been performed for centuries.”). So has the Supreme Court. See Bucklew, 139 S.
48
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 49 of 50
Ct. at 1123 (citing Wilkerson v. Utah, 99 U.S. 130 (1879)). There appear to be two
Supreme Court Justices who have recognized that a firing squad may be
“significantly more reliable than other methods, including lethal injection,” and
“there is some reason to think that [death by firing squad] is relatively quick and
painless.” Glossip, 576 U.S. at 976–77, 135 S. Ct. at 2796 (Sotomayor, J.,
dissenting); see also Arthur v. Dunn, 137 S. Ct. 725, 733–34 (2017) (mem.)
(Sotomayor, J., dissenting from the denial of certiorari); Bucklew, 139 S. Ct. at
1136 (Kavanaugh, J., concurring) (citing Justice Sotomayor’s dissent in Arthur and
explaining the State conceded a firing squad is an available alternative, if
adequately pled).
In sum, Mr. Nance has stated a sufficient claim and the District Court erred
in holding he did not.
* * *
I can think of no more consequential act of a government than to take the life
of one of its citizens. Mr. Nance is facing that fate in Georgia. The role of federal
courts in the process of the taking of Mr. Nance’s life is limited. Our job in Mr.
Nance’s case was merely to apply straightforward and well-established rules to
determine whether, as Mr. Nance claims, the District Court erred by making
findings of fact and weighing allegations in ruling on the State’s motion to dismiss.
The majority opinion fails to undertake this job. More worrisome, the majority’s
49
USCA11 Case: 20-11393 Date Filed: 12/02/2020 Page: 50 of 50
decision to change the rules governing the procedure by which death row prisoners
must bring a method of execution claim introduces chaos into this area of the law.
People facing their death at the hands of the State deserve more reliable treatment
from their federal courts. I dissent.
50