Ledford v. Commissioner, Georgia Department of Corrections

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[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 17-12167
Non-Argument Calendar
________________________

D.C. Docket No. 1:17-cv-01705-SCJ

J. W. LEDFORD, JR.,

Plaintiff - Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS,
WARDEN,
OTHER UNKNOWN EMPLOYEES AND AGENTS,

Defendants - Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

Before ED CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.

HULL, Circuit Judge:
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Under a sentence of death, J.W. Ledford, Jr. has his execution scheduled for

Tuesday, May 16, 2017, at 7:00 p.m. On Thursday, May 11, 2017, a mere five

days before his execution, Ledford challenged Georgia’s method of his execution

by filing a civil complaint under 42 U.S.C. § 1983. Since 2013, Georgia’s

execution protocol has provided for lethal injection by the administration of a

single drug: five grams (5,000 milligrams) of compounded pentobarbital.

After briefing, the district court denied Ledford’s motion for a temporary

restraining order and dismissed Ledford’s § 1983 complaint. The district court

determined, inter alia, (1) that Ledford’s § 1983 claims are time barred; (2) that, in

any event, Ledford had not shown a substantial likelihood of success on the merits

of his § 1983 claims; and (3) that, alternatively, Ledford had not carried his burden

to demonstrate that equitable relief, such as a stay, should be granted at this late

hour.

On May 12, 2017, Ledford filed a Notice of Appeal. On May 15, 2017, at

11:00 a.m., Ledford filed an “Emergency Motion for an Order Staying the

Execution.” After careful review, we deny Ledford’s motion.

I. BACKGROUND

In 1992, Ledford murdered his 73-year-old neighbor, Dr. Harry Johnston,

Jr., robbed Dr. Johnston’s wife, and burglarized the Johnstons’ home, tying up

Mrs. Johnston with a rope. Ledford v. Warden, Ga. Diagnostic & Classification

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Prison, 818 F.3d 600, 608-09 (11th Cir. 2016). A Georgia jury convicted Ledford

of murder, armed robbery, burglary, and kidnapping, and “unanimously

recommended imposition of the death penalty.” Id. at 614. The Supreme Court of

Georgia affirmed Ledford’s conviction and sentence on direct appeal. Ledford v.

State, 439 S.E. 2d 917 (Ga. 1994).

After the United States Supreme Court denied Ledford’s petition for

certiorari, Ledford v. Georgia, 513 U.S. 1085, 115 S. Ct. 740 (1995), Ledford

sought state habeas corpus relief in the Superior Court of Butts County, Georgia.

Ledford, 818 F.3d at 615. That petition was denied on July 27, 1999, and the

Supreme Court of Georgia denied him a certificate of probable cause to appeal in

2001. Id. at 620-21. The United States Supreme Court thereafter again denied

certiorari. Ledford v. Turpin, 534 U.S. 1138, 122 S. Ct. 1086 (2002).

Ledford then timely filed a 28 U.S.C. § 2254 petition in the federal district

court, in which he pled multiple claims. On March 19, 2008, the district court

denied Ledford’s § 2254 petition. Ledford, 818 F.3d at 628. On February 27,

2014, the district court denied reconsideration. Id. at 631. This Court affirmed the

denial of Ledford’s § 2254 petition. Id. at 608, 651. This Court also denied

Ledford’s petition for rehearing en banc. Ledford v. Warden, Ga. Diagnostic &

Classification Prison, No. 14-15650 (11th Cir. May 18, 2016). The United States

Supreme Court denied certiorari for a third time. Ledford v. Sellers, __ U.S. __, __

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S. Ct. __, No. 16-6444, 2017 WL 1199485 (Apr. 3, 2017). The United States

Supreme Court subsequently denied Ledford’s petition for rehearing. Ledford v.

Sellers, __ U.S. __, __ S. Ct. __, No. 16-6444, 2017 WL 2039266 (May 15, 2017).

II. STANDARD OF REVIEW

The standard governing a stay pending appeal is the same as the standard

applicable to a motion for a temporary restraining order. A stay pending appeal is

appropriate only if the moving party establishes: “(1) a substantial likelihood of

success on the merits; (2) that the [stay] is necessary to prevent irreparable injury;

(3) that the threatened injury outweighs the harm the [stay] would cause the other

litigant; and (4) that the [stay] would not be adverse to the public interest.”

Gissendaner v. Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015)

(quoting Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260, 1263 (11th Cir.

2014)).

III. STATUTE OF LIMITATIONS

The State argues, inter alia, that Ledford has not shown a substantial

likelihood of success on the merits because his § 1983 complaint is time-barred.

An untimely complaint cannot succeed on the merits. Gissendaner, 779 F.3d

at 1280. A § 1983 challenge to a state’s method of execution is subject to the

statute of limitations governing personal injury actions in the state where the

challenge is brought. Id. Ledford brought his § 1983 action in Georgia, which has

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a two-year statute of limitations period for such actions. See id.; O.C.G.A. § 9-3-

33.

The right of action for a method-of-execution challenge “‘accrues on the

later of the date on which’ direct review is completed by denial of certiorari, ‘or

the date on which the capital litigant becomes subject to a new or substantially

changed execution protocol.’” Gissendaner, 779 F.3d at 1280 (quoting McNair v.

Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)).

The United States Supreme Court denied Ledford’s petition for certiorari on

direct review on January 9, 1995. Ledford v. Georgia, 513 U.S. 1085, 115 S. Ct.

740 (1995).

In October 2001, Georgia adopted lethal injection as its method of

execution. O.C.G.A. § 17-10-38(a) (stating “[a]ll persons who have been

convicted of a capital offense and have had imposed upon them a sentence of death

shall suffer such punishment by lethal injection”); Gissendaner, 779 F.3d at 1281.

In March 2013, Georgia changed from using a single dose of FDA-approved

pentobarbital to using a single dose of compounded pentobarbital. See

Gissendander, 779 F.3d at 1281. In July 2013, Georgia’s lethal injection secrecy

act went into effect. See id.; O.C.G.A. § 42-5-36(d). This Court has squarely held

that these changes made in 2013 are not substantial changes to Georgia’s execution

protocol. Gissendaner, 779 F.3d at 1281-82; Wellons, 754 F.3d at 1263-64. Thus,

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Ledford’s method-of-execution claim accrued in October 2001 and must have been

filed by October 2003 to be timely. See Gissendaner, 779 F.3d at 1280. This

means that Ledford’s § 1983 complaint challenging lethal injection, filed on May

12, 2017, is over ten years too late.

In any event, Ledford’s § 1983 complaint was not filed even within twenty-

four months of that March 2013 change or the July 2013 secrecy act. Ledford also

alleges that he has been taking gabapentin for approximately a decade. Thus,

Ledford’s § 1983 claims about the interaction of those two drugs—compounded

pentobarbital and gabapentin—are filed too late as well.

“A time-barred complaint cannot justify a stay of execution, regardless of

whether its claims have merit.” Gissendaner, 779 F.3d at 1284; see also Henyard

v. Sec’y, DOC, 543 F.3d 644, 647 (11th Cir. 2008). Because Ledford’s § 1983

complaint was time-barred, he cannot show a substantial likelihood of success on

the merits, and a stay of execution is not warranted.

IV. NO SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS

Alternatively, even if his claims were not time-barred, Ledford has failed to

show that he is entitled to any relief at this time.

“Capital punishment, including capital punishment by lethal injection,

generally is constitutional.” Chavez v. Fla. SP Warden, 742 F.3d 1267, 1271 (11th

Cir. 2014). Because “[s]ome risk of pain is inherent in any method of execution,”

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the Eighth Amendment “does not demand the avoidance of all risk of pain in

carrying out executions,” particularly where the pain results “by accident or as an

inescapable consequence of death.” Baze v. Rees, 553 U.S. 35, 47, 50, 128 S. Ct.

1520, 1529, 1531 (2008) (plurality opinion)

Instead, to prevail on an Eighth Amendment challenge to a state’s lethal

injection protocol, the plaintiff must establish that the method of execution

presents a risk that is “‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’” Glossip v. Gross, 576

U.S. __, __, 135 S. Ct. 2726, 2737 (2015) (quoting Baze, 553 U.S. at 50, 128 S. Ct.

at 1531). A plaintiff must establish “an objectively intolerable risk of harm that

prevents prison officials from pleading that they were subjectively blameless for

purposes of the Eighth Amendment.” Chavez, 742 F.3d at 1272 (quoting Baze,

553 U.S. at 50, 52, 61, 128 S. Ct. at 1531). This requires the plaintiff to 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.’” Id. (quoting Baze, 553 U.S. at 50, 128 S. Ct. at

1531-32, 1537).

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A. Substantial Risk of Serious Harm

Ledford does not challenge Georgia’s method of execution in administering

a single dose of five grams of compounded pentobarbital. Rather, Ledford asserts

an “as-applied” claim that, because he has taken gabapentin for a decade, that dose

of pentobarbital, a mega-lethal dose, will not render him insensate quickly enough

and that he will suffer serious pain during the execution.

With respect to the first required showing, Ledford’s allegations and

supporting documents do not establish a substantial risk of serious harm, much less

a substantial likelihood of success on the merits of his claims. As noted above,

where an Eighth Amendment cruel and unusual punishment claim alleges the risk

of future harm, the conditions presenting the risk must be “‘sure or very likely to

cause serious illness and needless suffering,’ and give rise to ‘sufficiently

imminent dangers.’” Glossip, 576 U.S. at __, 135 S. Ct. at 2737(quoting Baze, 553

U.S. at 50, 128 S. C.t at 1531) (quotation marks omitted); Wellons, 754 F.3d at

1265. The factual allegations in Ledford’s complaint and the supporting evidence

do not establish that it is sure or very likely that Ledford will suffer serious injury

or needless suffering during his execution.

We need not rely on the second requirement because Ledford has not carried

his burden to show a substantial likelihood of success on his claim that, because

Ledford has taken gabapentin for a decade, his execution by a lethal injection of

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five grams of compounded pentobarbital is sure or very likely to cause serious

illness and needless suffering.

Ledford admits that fourteen Georgia inmates have been executed with five

grams of pentobarbital without incident and he submits the autopsies of some of

them. Interestingly, Ledford expressly admits that he is not claiming that any of

these inmates (in the autopsies) were sensate during their executions. At page

fifteen, footnote ten of his complaint, Ledford states: “Mr. Ledford does not allege

that any of these fourteen (14) inmates were conscious or sensate during their

executions.”

To distinguish his case from the fourteen Georgia executions that occurred

without incident, Ledford claims that five grams of pentobarbital will not render

him insensate quickly enough because of his history of taking gabapentin. The

State’s expert directly refutes that claim. For example, Dr. Jacqueline Martin

testified that “the amount administered in the Georgia Department of Corrections’

Execution Protocol, 5000 mg, is more than sufficient to carry out the execution

without causing Plaintiff pain despite the prior administration of 1800 mg of

gabapentin per day.” And even Ledford’s experts do not opine how quickly five

grams of pentobarbital will or will not render Ledford insensate. The expert can

say only that the use of gabapentin “will diminish the effect of pentobarbital,” but

the district court stressed, “how much, [Dr.] Berges never says.” And the district

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court pointed out Dr. Martin’s observation that the research does “not show that

gabapentin’s inhibitory effect would survive the large, lethal dose of pentobarbital

[used] . . . in judicial execution.” The district court found that Ledford’s experts

did not demonstrate the substantial risk of severe pain that Ledford must

demonstrate. 1

B. Known and Available Alternatives

Alternatively, even assuming arguendo that Ledford has shown a substantial

likelihood of success on the first requirement, as to the second requirement,

Ledford’s complaint fails to state a plausible claim for relief. As to Georgia’s

lethal injection method, Ledford does not even attempt to identify an alternative

procedure or drug that is “feasible, readily implemented, and in fact significantly

reduce[s] a substantial risk of severe pain.” Glossip, 576 U.S. at __, 135 S. Ct. at

2737 (quoting Baze, 553 U.S. at 52, 128 S. Ct. at 1532). Ledford’s complaint

includes no allegations that: (1) there is an alternative drug that will substantially

reduce the risks he identifies with compounded pentobarbital; (2) any alternative

means of acquiring that alternative drug; or (3) an alternative method of lethal

1
We also reviewed the declaration of Dr. Mark A. Edgar, who reviewed fourteen
autopsies, but his opinion about the risk of pain is prefaced with the condition that “if the person
were conscious” or “if the prisoners were aware.” Dr. Edgar never opines how long it would
take for an inmate who received a five-gram injection of pentobarbital to become insensate. The
opinion of Dr. Joel B. Zivot about the risk of pain is also based on the caveat that “[i]f any
inmate was aware or sensate during the process.”
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injection that would substantially reduce the risk Ledford identifies based on his

history of taking gabapentin.

For the above reasons, in addition to being time-barred, Ledford’s complaint

fails to state a plausible claim for relief. Because Ledford has not shown a

substantial likelihood of success on the merits of his challenge to the lethal

injection protocol, the motion for a stay is denied. See Gissendaner, 779 F.3d at

1283.

V. FIRING SQUAD CLAIM

We also agree with the district court that Ledford has not alleged sufficient

facts to render it plausible that a firing squad is a feasible and readily implemented

method of execution in Georgia that would significantly reduce a substantial risk

of severe pain. The Georgia legislature is free, within the parameters established

by the United States Constitution, to choose the method of execution it deems

appropriate. Execution by lethal injection has been ruled constitutional. Boyd v.

Warden, Holman Corr. Facility, __ F.3d __, No. 15-14971, 2017 WL 1856071, at

*8 (11th Cir. May 9, 2017); Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268,

1316 (11th Cir. 2016). Having authorized a constitutional method of execution,

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Georgia “is under no constitutional obligation to experiment with execution by . . .

firing squad.” Boyd, 2017 WL 1856071, at *1; Arthur, 840 F.3d at 1315-18.2

In fact, Ledford’s own expert, Dr. James Williams, a trauma doctor with

expertise in firearms, avers: “At the present time, lethal injection of

pharmacologic agents dominates the field, and, in my opinion, for good reason:

when available and performed appropriately, lethal injection provides us with

arguably the quickest and most humane method of deliberately ending life.” While

Dr. Williams opines that “gunshot wounding is—if properly carried out—also an

effective means of accomplishing” death, Dr. Williams never describes gunshot

wounding as a humane method, much less a more humane or the most humane

method.

As the Supreme Court has recognized, “[t]he firing squad, hanging, the

electric chair, and the gas chamber have each in turn given way to more humane

methods [of execution], culminating in today’s consensus on lethal injection.”

2
Contrary to Ledford’s claims, the Eighth Circuit’s decision is not inapposite to our
Circuit’s precedent. In McGehee v. Hutchinson, the Eighth Circuit vacated the district court’s
stay of execution, denied a stay, and stated “we concur with the Eleventh Circuit that the State
must have access to the alternative and be able to carry out the alternative method relatively
easily and reasonably quickly.” McGehee v. Hutchinson, 854 F.3d 488, 488 (8th Cir. 2017) (en
banc) (per curiam) (citing Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1300 (11th Cir.
2016)), cert. denied, 137 S. Ct. 1275 (2017). The Eighth Circuit concluded that the petitioner
had not shown “a significant possibility that use of a firing squad is readily implemented and
would significantly reduce a substantial risk of severe pain.” Id. at 488.
The Sixth Circuit did affirm a district court’s stay in a 2-1 opinion over a dissent, but the
Sixth Circuit has now voted that case en banc. In re Ohio Execution Protocol, 853 F.3d 822 (6th
Cir. 2017), reh’g en banc granted, opinion vacated, No. 17-3076, 2017 WL 1457946 (6th Cir.
Apr. 25, 2017), withdrawn from bound volume (May 5, 2017). In any event, both the Sixth and
Eighth Circuit cases were about midazolam, not pentobarbital which Georgia uses.
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Baze, 553 U.S. at 62, 128 S. Ct. at 1538; see also id. at 42, 128 S. Ct. at 1526-27

(“A total of 36 States have now adopted lethal injection as the exclusive or primary

means of implementing the death penalty, making it by far the most prevalent

method of execution in the United States.”); Furman v. Georgia, 408 U.S. 238,

296-97, 92 S. Ct. 2726, 2756 (1972) (Brennan, J., concurring) (“Our practice of

punishing criminals by death has changed greatly over the years. One significant

change has been in our methods of inflicting death. Although this country never

embraced the more violent and repulsive methods employed in England, we did for

a long time rely almost exclusively upon the gallows and the firing squad. Since

the development of the supposedly more humane methods of electrocution late in

the 19th century and lethal gas in the 20th, however, hanging and shooting have

virtually ceased.”).

In any event, Ledford asserted this firing squad claim well beyond the two-

year statute of limitations governing § 1983 claims in Georgia and thus his firing

squad claim is untimely.

VI. EQUITABLE RELIEF

As an alternative and independent ground, we deny Ledford’s motion for a

stay because a stay of execution is an equitable remedy, and Ledford has not

carried his burden to demonstrate entitlement to that equitable relief.

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A stay is an equitable remedy not available as a matter of right, and before a

court grants a stay, it must consider “the relative harms to the parties,” “the

likelihood of success on the merits,” and “the extent to which the inmate has

delayed unnecessarily in bringing the claim.” Nelson v. Campbell, 541 U.S. 637,

649-50, 124 S. Ct. 2117, 2126 (2004). We consider the relative harms to the

parties by balancing the competing interests of Ledford and Georgia. Crowe v.

Donald, 528 F.3d 1290, 1292 (11th Cir. 2008). “A defendant’s interest in being

free from cruel and unusual punishment is primary; however, the State’s interest in

effectuating its judgment remains significant.” McNair, 515 F.3d at 1172. Victims

of crime also “have an important interest in the timely enforcement of a sentence.”

Hill v. McDonough, 547 U.S. 573, 584, 126 S. Ct. 2096, 2104 (2006). “[L]ike

other stay applicants, inmates seeking time to challenge the manner in which the

State plans to execute them must satisfy all of the requirements for a stay,

including a showing of a significant possibility of success on the merits.” Id.

“Given the State’s significant interest in enforcing its criminal judgments,

there is a strong equitable presumption against the grant of a stay where a claim

could have been brought at such a time as to allow consideration of the merits

without requiring entry of a stay.” Nelson, 541 U.S. at 650, 124 S. Ct. at 2126

(citations omitted). In several decisions, this Court has refused to grant a dilatory

stay sought on the eve of an execution. See, e.g., Crowe, 528 F.3d at 1294; Diaz v.

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McDonough, 472 F.3d 849, 851 (11th Cir. 2006); Hill v. McDonough, 464 F.3d

1256, 1259-60 (11th Cir. 2006).

Even if not barred by the statute of limitations, Ledford’s claims are barred

because he has not timely made them, given he waited until five days before his

execution. In any event, in our balancing of the hardships and equitable relief, we

must take into account the fact that the State and the relatives of Ledford’s victims

have a strong interest in the finality of the criminal judgments and in seeing

lawfully imposed sentences carried out in a timely manner.

Our decision in Jones v. Allen provides guidance here. 485 F.3d 635 (11th

Cir. 2007), cert. denied, 550 U.S. 930, 127 S. Ct. 2160 (2007). In that case, the

inmate Jones, facing an imminent execution, filed a § 1983 civil action challenging

the three-drug protocol in Alabama that had been in existence since 2002, but

Jones waited until 2006 to file his civil action. Id. at 636-38. This Court

concluded that Jones’s delay “leaves little doubt that the real purpose behind his

claim is to seek a delay of his execution, not merely to effect an alteration of the

manner in which it is carried out.” Id. at 640 (quoting Harris v. Johnson, 376 F.3d

414, 418 (5th Cir. 2004)). Similarly, in the instant case, Georgia has used lethal

injection with a single dose of pentobarbital for years, and Ledford has taken

gabapentin for ten years. Only five days before his execution did Ledford bring his

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concern about the interaction of these two drugs. Ledford has failed to show any

equitable relief is warranted in these circumstances.

Under all the particular facts and circumstances of this case, Ledford has not

shown that he has met the equitable requirements for a stay against the State.

VII. CONCLUSION

After review, this Court denies Ledford’s motion for a stay of execution

because (1) Ledford’s § 1983 claims are time-barred; (2) alternatively, Ledford has

not shown a substantial likelihood of success on his § 1983 claims; and (3) in any

event, equitable considerations, including Ledford’s delay in bringing a § 1983

complaint and the State’s and the victims’ interests in the finality and timely

enforcement of valid criminal judgments, do not warrant the entry of a stay of

Ledford’s execution for this 1992 murder. 3

EMERGENCY MOTION FOR A STAY DENIED.

3
Plaintiff-Appellant’s Petition for Initial Hearing En Banc and for a stay of execution
from the en banc court remains pending.
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JORDAN, Circuit Judge, concurring:

I join Parts I–III of the majority opinion and concur in the denial of a stay.

Because Mr. Ledford’s execution protocol claim is untimely under Eleventh

Circuit precedent, I do not find it necessary to address the other grounds set forth

by the majority.