Saturday, October 07, 2006

Justice Wilson, 11 circuit dissent in Rutherford Oct 5, 2006

WILSON, Circuit Judge, dissenting:

It is now clear that Rutherford is entitled to challenge the method by which
Florida seeks to execute him by presenting his claim under 28 U.S.C. § 1983. See
Hill v. McDonough, 547 U.S. ____, 126 S. Ct. 2096, 2101–04, 165 L. Ed. 2d 44

The Supreme Court remanded Rutherford’s case back to us for
reconsideration in light of its decision in Hill. Rutherford v. McDonough, 126 S.
Ct. 2915, 165 L. Ed. 2d 914 (2006) (mem.). Pursuant to the remand, the majority
agrees with the district court’s alternative ruling that Rutherford’s § 1983 claim
should not be heard because he should have brought it earlier.

I disagree.

I continue to believe, as I noted in my earlier dissent, that the district court abused
its discretion by concluding that even if Rutherford’s § 1983 claim were
cognizable, his delay in bringing the claim precluded equitable relief.

Rutherford v. Crosby, 438 F.3d 1087, 1097–98 (11th Cir. 2006) (Wilson, J., dissenting)
(hereinafter Rutherford I). Because the factual basis for Rutherford’s claim only
recently came to light and because the legal basis for his claim was not in place
until six days before his scheduled execution, he did not unnecessarily delay in

The majority asserts that Rutherford was aware of the factual grounds for his claim as 1
early as 2000 when the state of Florida instituted lethal injection as a method of execution. That
year, the Florida Supreme Court evaluated the constitutionality of Florida’s lethal injection
protocols. See Sims v. State, 754 So. 2d 657 (Fla. 2000).

The petitioner in Sims, however,
centered his argument on the pain and suffering that could occur if execution procedures were
not followed. Id. at 668. In this case, Rutherford alleges that even if carried out as planned, the
execution methods constitute cruel and unusual punishment.

Rutherford bases his claim on
recent research published in a medical journal detailing the effects of the chemicals in lethal
injection. See Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 THE LANCET 1412 (Apr. 16, 2005). This research indicates that inmates may feel the suffering of suffocation, the burning through the veins, and the pain of a heart attack due to
inadequate anaesthesia. Id.

Though the factual basis for Rutherford’s claim may have been
known to him in April of 2005, the legal basis for his claim was not available until January 2006.
bringing his § 1983 action. 1

The district court’s determination that Rutherford unreasonably delayed the
filing of his claim was, in essence, an alternative basis for dismissing his case.

There was no semblance of a proper discussion or balancing of the equities of
Rutherford’s claim. The court did not apply the appropriate standard for a stay or
injunction under § 1983.

Conspicuously absent from the district court’s order is
any discussion of the following four factors: (1) whether there is a substantial
likelihood of success on the merits; (2) whether the requested action is necessary
to prevent irreparable injury; (3) whether the threatened injury outweighs the harm
the stay or injunction would inflict upon the non-movant; and (4) whether the
requested action would serve the public interest. See Seigel v. Lepore, 234 F.3d
1163, 1176 (11th Cir. 2000) (per curiam).

The district court obviously did not feel
the need to consider these four factors because it believed that Rutherford’s “claim
and request for relief [wa]s the functional equivalent of a successive habeas corpus
petition.” Rutherford I, 438 F.3d at 1102 (reprinting district court order as
appendix). We have learned from Hill that that belief was incorrect. 126 S. Ct. at

Without weighing the four factors, the district court erroneously concluded
that Rutherford unnecessarily delayed in bringing his claim, and thus deemed a
stay inappropriate. A “strong equitable presumption against the grant of a stay” is
appropriate only when “a claim could have been brought at such a time as to allow
consideration of the merits without the requiring of a stay.” Nelson v. Campbell,
541 U.S. 637, 650, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004).

Here, there
would have been little point in Rutherford bringing his claim any earlier than he
did. Prior to the Supreme Court’s decision in Hill, our precedent in Robinson v.
Crosby, 358 F.3d 1281 (11th Cir. 2004), would have required a district court to
treat Rutherford’s § 1983 claim as a successive habeas corpus petition. See id. at

Thus, based on our prior precedent which has now been overruled, the
district court would have been correct to summarily dismiss it for lack of
jurisdiction. See id. It was not until the Supreme Court’s grant of certiorari in Hill
that Rutherford had reason to believe that his claim would be heard. Rutherford
filed his § 1983 claim on January 27, 2006, two days after the Supreme Court
granted certiorari in Hill. I see nothing in the record to suggest, as the majority
opines, that Rutherford “deliberately waited” to file his claim days before his
scheduled execution.

Thus, the district court abused its discretion in applying a
“strong equitable presumption” against a stay. Furthermore, the district court’s
order only analyzed this issue as an afterthought on the premise that the court’s
first ground would be upheld.

The majority affirms the district court’s dismissal of Rutherford’s § 1983
action in an effort to “protect states from dilatory or speculative suits.” Hill, 126
S. Ct. at 2104. The majority concludes that a remand is unnecessary because the
district court already determined that Rutherford’s suit was dilatory.

I do not read
Hill as giving license to the lower federal courts “to overlook all other
considerations that are called for in equity, which, after all, should be a recourse to
principles of justice and fairness to correct or supplement the law as applied to
particular circumstances.” Brown v. Livingston, 457 F.3d 390, 392 (5th Cir. 2006)
(Dennis, J., dissenting). Rather, “equity in cases of this nature requires courts to
consider the particular circumstances of each case and to examine them for
whether or not the challenge has been brought dilatorily or for improper purposes .
. . , and, if not, whether it should be allowed to proceed.” Id.

The district court
did not consider Rutherford’s particular circumstances.
The majority also argues that its decision to affirm is compelled by the
result in the Hill case on remand. Hill v. McDonough, No. 06-14927, 2006 WL
2641659, (11th Cir. Sept. 15, 2006). Hill filed his § 1983 claim four days before
his execution with full knowledge that under this Circuit’s precedent, his claim
would be dismissed as a successive habeas petition. See Robinson, 358 F.3d at

In fact, the district court dismissed Hill’s claim outright for lack of
jurisdiction, holding that Hill’s action was the functional equivalent of a
successive petition for a writ of habeas corpus filed without leave and, thus, ran
afoul of 28 U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL
167585, at *2–3 (N.D. Fla. Jan. 21, 2006).

Following our precedent in Robinson,
358 F.3d 128, and In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), we
summarily affirmed the district court and denied Hill’s application for a stay of his
execution pending appeal. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006)
(per curiam). Against the odds, the U.S. Supreme Court granted certiorari in Hill’s
case. Hill v. Crosby, 546 U.S. __, 126 S. Ct. 1189, 1190, 163 L. Ed. 2d 1144
(2006) (mem.).

Hill’s case is materially different from Rutherford’s.

Hill filed a highly
speculative suit as a last ditch effort to stall his execution. Nothing in our circuit
precedent, or Supreme Court precedent, provided a basis for a § 1983 challenge to
Hill’s method of execution.

On the other hand, when Rutherford filed his § 1983
claim, the legal landscape had fundamentally changed. A grant of certiorari by the
Supreme Court, obviously, does not change our Circuit law, but it does call that
law into question.

Only after the Supreme Court’s grant of certiorari in Hill,
which presented the same issues Rutherford faced, did Rutherford have reason to
believe that his claim would be heard. The majority suggests that it “cannot be the
law” that Rutherford could benefit from precedent established by Hill’s efforts.
Again, I disagree.

Litigants benefit from the efforts of prior litigants who shape
the law every day. That is precisely why the Supreme Court remanded this case
back to us for reconsideration – because Hill forged new precedent.

Nothing in the record suggests that Rutherford filed his claim solely in an
attempt to delay his impending execution. In fact, the record compels the opposite
conclusion. Since Rutherford filed his § 1983 claim, he has vigorously pursued
that claim and urged the courts at all stages to give him an evidentiary hearing on
the merits.

For example, Rutherford urged us to remand his case to the district
court post-Hill for further proceedings on the merits despite the fact that no death
warrant was pending and his execution was not imminent. Furthermore, once his
second death warrant had been signed and his execution date set, he petitioned the
U.S. Supreme Court for a writ of mandamus in an effort to compel us to remand
his case to the district court for a hearing.

These circumstances contradict the
majority’s assertion that his § 1983 claim is merely as a delay tactic and instead
demonstrate that Rutherford has sought and continues to seek a full and fair
hearing on the merits of his constitutional challenge to Florida’s lethal injection

I am simply not persuaded by the view of the majority that Rutherford’s
sole intent is to buy more time on death row, rather than to force the State to
execute him in compliance with the Constitution.

Certainly, the State and its victims have an “important interest in the timely
enforcement of a sentence,” but this interest must be balanced against the
constitutional right of a death row inmate to be executed in a manner consistent
with the requirements of the Constitution.

Recent developments in medical
research have called into question the degree of pain and suffering caused by the
method of lethal injection some states, including Florida, use. See Leonidas G.
Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365
THE LANCET 1412 (Apr. 16, 2005). To date, most lower courts have avoided
squarely addressing whether execution by this three-drug protocol violates the
Eighth Amendment, thus preventing review by the United States Supreme Court.
See, e.g., Hill, 2006 WL 2641659; Robinson, 358 F.3d 1281; Brown v. Crawford,
408 F.3d 1027 (8th Cir. 2005) (per curiam); Bieghler v. State, 839 N.E.2d 691

A court in the Northern District of California is currently hearing expert testimony 2
regarding a challenge to California’s lethal injection protocols, which are materially similar to
Florida’s procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006).

deserves the same opportunity.

Consequently, I would grant Rutherford’s Application for a Stay
of Execution, permitting him to return to the district court for a hearing on the merits of his §
1983 claim.
(Ind. 2005). But see Walker v. Johnson, No. 1:05-CV-934 CMH TRJ, 2006 WL
2619857 (E.D. Va. Sept. 11, 2006) (dismissing inmate’s § 1983 claim which relied
on risks of deviation from execution protocol).

Rutherford does not challenge the validity of his sentence, rather the method
in which the State seeks to carry it out. Rutherford’s challenge, even if successful,
does not foreclose his execution. He will be put to death for his crime.

because Rutherford presents a legitimate claim that the lethal injection protocol
that awaits him may constitute cruel and unusual punishment, which the Eighth
Amendment forbids, and because the district court failed to engage in a full and
proper analysis of the equities in Rutherford’s case, I would reverse the district
court’s decision and remand for a hearing on the merits of his § 1983 claim.2

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