Case: 17-12167 Date Filed: 05/16/2017 Page: 1 of 29
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12167-P
________________________
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, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, and JILL PRYOR,
Circuit Judges.*
BY THE COURT:
A petition for initial hearing en banc having been filed, a judge in active
service having requested a poll on the petition, and a majority of the judges in
*
Judge Julie Carnes, having recused herself, did not participate.
Case: 17-12167 Date Filed: 05/16/2017 Page: 2 of 29
active service having voted against it, the petition is DENIED. The motion for a
stay of execution is DENIED and the State’s motion to file a response to the
plaintiff-appellant’s sur-reply is DENIED AS MOOT.
2
Case: 17-12167 Date Filed: 05/16/2017 Page: 3 of 29
ED CARNES, Chief Judge, concurring in the denial of the petition for initial
hearing en banc:
Concurring in the denial of the motion for hearing en banc, I write separately
to point out a different interpretation of the record than that of two of my
colleagues, which bears on the timeliness issue.
Judge Wilson’s dissenting opinion states that what Ledford alleges is that
“he has a ‘unique medical condition,’ and he alleges that the condition arose within
the past two years.” Wilson Dissent at 25 n.3. This, he adds, is not like the claim
in Gissendaner that relied on conditions that had not changed in the past two years.
Id. But in the complaint he filed in the district court, Ledford alleged that he has
been taking gabapentin for over a decade and that the problem is the brain becomes
less responsive to other drugs over a prolonged period of time. See Complaint at 2
(“His long-term exposure to this medication has changed the chemistry of his brain
. . . .”); id. at 9 (“When taken for an extended period of time, gabapentin will alter
a person’s brain chemistry . . . .”); id. at 10 (“Those receptors shaped by long-term
administration of gabapentin become less responsive to pentobarbital.”); id. at 12
(Dr. Bergese’s opinion based on gabapentin having been “administered to a person
. . . for a considerable period of time”); id. at 15 (Dr. Zivot’s opinion based on
Ledford’s “prolonged exposure to gabapentin”); id. at 16 (“Accordingly, because
of his decade of gabapentin treatments . . .”); id. (alleging that the objectively
intolerable risk arises from “his decade-long use of gabapentin”). The complaint
3
Case: 17-12167 Date Filed: 05/16/2017 Page: 4 of 29
could not, and does not, allege that the decade-long use of gabapentin arose within
the last two years. It arose over more than a decade, far outside the two year
statute of limitations.
Judge Jill Pryor’s dissenting opinion states that Ledford’s dosage of
gabapentin has been increasing for a number of years, and his long term exposure
to it has altered his brain chemistry so that using pentobarbital is very likely to
cause him to experience unbearable pain and suffering. But Ledford never alleged
that the risk of gabapentin diminishing the effect of pentobarbital arose only in the
last two years before he filed the complaint. We cannot fault district courts for
failing to foresee theories not alleged before them.
4
Case: 17-12167 Date Filed: 05/16/2017 Page: 5 of 29
HULL, Circuit Judge, specially concurring in the denial of the petition for initial
hearing en banc:
I concur for the reasons set forth in the assigned panel’s published order,
dated May 15, 2017, attached hereto as Exhibit A, which denies Mr. Ledford’s
belated motion for a stay of execution. Among other reasons, Mr. Ledford’s 42
U.S.C. § 1983 claims are barred by the statute of limitations and, in any event, as a
matter of equitable considerations, are untimely filed five days before his
execution.
For example, Mr. Ledford’s own complaint alleges he has been taking
escalating doses of gabapentin for approximately a decade, and in March 2013
Georgia began using a single dose of five grams of pentobarbital in its lethal
injection protocol. Thus, Mr. Ledford’s § 1983 claims, which are largely about his
prolonged use of gabapentin for ten years and the interaction of gabapentin and
pentobarbital, accrued at least by 2013 and his § 1983 claims were not filed until
May 11, 2017, which is two years too late.
In any event, as discussed in the panel opinion, Mr. Ledford has not shown a
substantial risk of severe pain as required by Glossip v. Gross, 576 U.S. __, 135 S.
Ct. 2726 (2015), or a substantial likelihood of success on the merits of his claims to
warrant a stay of execution. I also concur in the denial of Mr. Ledford’s petition
for the reasons laid out in the majority opinions in Boyd v. Warden, Holman
Correctional Facility, ___ F.3d ___, No. 15-14971, 2017 WL 1856071 (May 9,
5
Case: 17-12167 Date Filed: 05/16/2017 Page: 6 of 29
2017), and Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016),
cert. denied sub. nom. Arthur v. Dunn, ___ U.S. ___, 137 S. Ct. 725 (2017).
6
Case: 17-12167 Date Filed: 05/16/2017 Page: 7 of 29
EXHIBIT A
[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:
7
Case: 17-12167 Date Filed: 05/16/2017 Page: 8 of 29
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
8
Case: 17-12167 Date Filed: 05/16/2017 Page: 9 of 29
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. ,
9
Case: 17-12167 Date Filed: 05/16/2017 Page: 10 of 29
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
10
Case: 17-12167 Date Filed: 05/16/2017 Page: 11 of 29
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,
11
Case: 17-12167 Date Filed: 05/16/2017 Page: 12 of 29
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,”
12
Case: 17-12167 Date Filed: 05/16/2017 Page: 13 of 29
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).
13
Case: 17-12167 Date Filed: 05/16/2017 Page: 14 of 29
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
14
Case: 17-12167 Date Filed: 05/16/2017 Page: 15 of 29
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
15
Case: 17-12167 Date Filed: 05/16/2017 Page: 16 of 29
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.”
16
Case: 17-12167 Date Filed: 05/16/2017 Page: 17 of 29
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,
17
Case: 17-12167 Date Filed: 05/16/2017 Page: 18 of 29
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.
18
Case: 17-12167 Date Filed: 05/16/2017 Page: 19 of 29
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.
19
Case: 17-12167 Date Filed: 05/16/2017 Page: 20 of 29
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.
20
Case: 17-12167 Date Filed: 05/16/2017 Page: 21 of 29
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
21
Case: 17-12167 Date Filed: 05/16/2017 Page: 22 of 29
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.
22
Case: 17-12167 Date Filed: 05/16/2017 Page: 23 of 29
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.
23
Case: 17-12167 Date Filed: 05/16/2017 Page: 24 of 29
WILSON, Circuit Judge, dissenting to the denial of hearing en banc, joined by
MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges:
There are over six hundred people on death row in Florida, Georgia, and
Alabama. The Framers of the Constitution determined that such individuals cannot
be subjected to torturous, inhumane deaths. Our decision in Arthur, 1 however, has
all but overturned the Framers’ determination. Under Arthur, even if a death row
prisoner in Florida, Georgia, or Alabama faces an inhumane method of execution,
the prisoner has no real recourse.
Arthur imposed a “de facto ban on [relief from a torturous, inhumane death]
by adopting method-of-execution rules that lead to litigation gridlock.” See Baze
v. Rees, 553 U.S. 35, 71, 128 S. Ct. 1520, 1542 (2008) (Alito, J., concurring). To
obtain relief from an inhumane method of execution, a death row prisoner must
identify a known-and-available execution alternative. Because lethal-injection
drugs are both scarce and shrouded in secrecy, prisoners are having to turn to death
by firing squad and other non-drug alternatives to meet this requirement. But
under Arthur, an execution alternative is available only if it is state authorized, and
neither Florida, Georgia, nor Alabama currently authorize any non-drug
alternatives other than electrocution (a clearly problematic method of execution).
1
Arthur v. Comm’r, Ala. Dep’t of Corrs., 840 F.3d 1268 (11th Cir. 2016), cert. denied
sub nom. Arthur v. Dunn, 580 U.S. ___, 137 S. Ct. 725 (2017).
24
Case: 17-12167 Date Filed: 05/16/2017 Page: 25 of 29
So, the hundreds of prisoners sentenced to death in those states face a de facto ban
on relief from a torturous, inhumane death. That defies the intent of the Framers.
J.W. Ledford’s case presents an opportunity for our court to revisit Arthur,
and for the reasons discussed more fully in my dissent in Arthur and my
concurrence in Boyd,2 I strongly believe our court should do so.
I respectfully dissent to the denial of hearing en banc. 3
2
Boyd v. Warden, Holman Corr. Facility, ___ F.3d ___, No. 15-14971 (11th Cir. May 9,
2017).
3
I believe hearing en banc is warranted despite the panel’s conclusion that Ledford’s
claim is untimely. First, regardless of that conclusion, this case implicates an issue of
“exceptional importance” in our circuit. See Fed. R. App. P. 35. Arthur, in my view, was
wrongly decided, and the panel relied on Arthur as a basis for denying Ledford’s claim. “We
have a responsibility to interpret the law correctly,” which requires an en banc hearing to correct
Arthur and the panel’s reliance on it. See McCarthan v. Dir. of Goodwill Indus.-Suncoast, Inc.,
851 F.3d 1076, 1099 (11th Cir. 2017) (en banc). Second, I am not persuaded that the panel’s
timeliness conclusion is correct. The panel says that Ledford should have filed his claim within
two years of Georgia changing its lethal-injection protocol. That might be true if Ledford was
alleging that the protocol is unconstitutional as a general matter. But that is not what he alleges.
He argues that the protocol is inhumane as applied to him because he has a “unique medical
condition,” and he alleges that the condition arose within the past two years. See Gissendaner v.
Comm’r, Ga. Dep’t of Corrs., 803 F.3d 565, 569 n.1 (11th Cir. 2015) (per curiam). This is not a
case, then, where the claim is “untimely because [it] rel[ies] on factual conditions that have not
changed in the past” two years. See Gissendaner v. Comm’r, Ga. Dep’t of Corrs., 779 F.3d
1275, 1281 (11th Cir. 2015) (per curiam); Siebert v. Allen, 506 F.3d 1047, 1049–50 (11th Cir.
2007) (per curiam) (concluding that a prisoner’s method-of-execution claim was timely because
it was an as-applied challenge that “derive[d] from [a] recent [medical] diagnosis”). Third,
Ledford’s initial federal habeas petition was resolved just yesterday, so I do not believe that he
can be characterized as improperly delaying this action. See Ledford v. Sellers, No. 16-6444
(U.S.S.C. May 15, 2017).
25
Case: 17-12167 Date Filed: 05/16/2017 Page: 26 of 29
JILL PRYOR, Circuit Judge, dissenting to the denial of hearing en banc, joined by
WILSON, MARTIN, and ROSENBAUM, Circuit Judges:
I agree in full with Judge Wilson’s dissent in Arthur, 1 his concurrence in
Boyd,2 and his dissent today. The Eighth Amendment guarantees death row
inmates the right to humane treatment, but by effectively foreclosing all method-
of-execution challenges, the Court has signaled that this right does not follow
inmates to the execution chamber. Unfortunately, the Court’s jurisprudence on the
substance of method-of-execution challenges is not the only way in which we have
systematically closed and locked the courthouse doors on inmates under death
sentences. We are also locking the courthouse doors based on an erroneous
interpretation of the statute of limitations applicable to method-of-execution
challenges. 3
Georgia’s lethal injection protocol currently provides that inmates shall be
executed with a lethal dose of compounded pentobarbital. J.W. Ledford raises an
as-applied challenge under 42 U.S.C. § 1983 to the use of this protocol in his
execution. He alleges that the cumulative effect of a medication he has taken over
the last several years has altered his brain chemistry such that pentobarbital will
1
Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub
nom. Arthur v. Dunn, 137 S. Ct. 725 (2017).
2
Boyd v. Warden, Holman Corr. Facility, No. 15-14971, __ F.3d __, 2017 WL 1856071
(11th Cir. May 9, 2017).
3
Because this case presents an as-applied challenge to Georgia’s method of execution, I
do not address the Court’s statute of limitations jurisprudence as it pertains to per se method-of-
execution challenges.
26
Case: 17-12167 Date Filed: 05/16/2017 Page: 27 of 29
lack the capacity to anesthetize him while it stops the functioning of his central
nervous system. As a result, Mr. Ledford alleges, if he is executed using
compounded pentobarbital he is very likely to endure excruciating pain and
suffering akin to drowning in his own saliva.
The panel began by stating hornbook law: a challenge brought pursuant to
§ 1983 is subject to the statute of limitations governing personal injury actions in
the state in which the challenge is brought. Ledford v. Comm’r, Ga. Dep’t of
Corr., No. 17-12167, __ F.3d __, 2017 WL 2104682, at *2 (11th Cir. May 15,
2017). In Georgia, this statute of limitations is two years. See id. Because this
Court has held that “a method of execution claim accrues on the later of the date on
which state review is complete”—for Mr. Ledford, January 1995—“or the date on
which the capital litigant becomes subject to a new or substantially changed
execution protocol”—according to the panel, October 2001—the panel concluded
that Mr. Ledford’s claim was time barred. McNair v. Allen, 515 F.3d 1168, 1174
(11th Cir. 2008); Ledford, 2017 WL 2104682, at *2 (quoting Gissendaner v.
Comm’r, Ga. Dep’t of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (quoting
McNair, 515 F.3d at 1174)).
The panel’s analysis is simple enough. Indeed, it’s too simple. McNair’s
accrual rule does not control in an as-applied challenge such as Mr. Ledford’s,
where there are allegations that Mr. Ledford’s brain chemistry has changed over
27
Case: 17-12167 Date Filed: 05/16/2017 Page: 28 of 29
time such that he is now very likely to suffer an injury that he would not have
experienced within two years of October 2001. Rather, the applicable rule is this
Circuit’s general rule that “the statute of limitations does not begin to run until the
facts which would support a cause of action are apparent or should be apparent to a
person with a reasonably prudent regard for his rights.” Mullinax v. McElhenney,
817 F.2d 711, 716 (11th Cir. 1987) (alteration and internal quotation marks
omitted); see McNair, 515 F.3d at 1173 (explaining that Mullinax “has long been
the law of this Circuit” for § 1983 actions). By way of illustration, in Siebert v.
Allen, decided the year before McNair, we concluded that an “as-applied” § 1983
challenge to Alabama’s lethal injection protocol was timely because the factual
predicate for that claim— Mr. Siebert’s diagnosis with pancreatic cancer and
hepatitis C—occurred shortly before he filed his amended complaint. 506 F.3d
1047, 1048-49 (11th Cir. 2007). We said that Mr. Siebert’s “as-applied” claim was
timely because it “derive[d] from his recent diagnosis.” Id. at 1049-50.4
It is this general rule from Mullinax, seen in action in Siebert, that should
have been applied here. Mr. Ledford alleged that for a number of years he has
been taking medication for chronic nerve pain, his dosage had been increasing, and
his long-term exposure to that medication has altered his brain chemistry such that
4
More recently, Gissendaner, cited by the panel, suggested that a recent change in an
inmate’s medical condition could affect our statute of limitations analysis, though it denied Ms.
Gissendaner relief because she had failed to allege that there was a recent change in her medical
condition.
28
Case: 17-12167 Date Filed: 05/16/2017 Page: 29 of 29
the State’s use of pentobarbital in his execution is very likely to cause him to
experience unbearable pain and suffering. It is not at all apparent from the face of
Mr. Ledford’s May 11, 2017 complaint that his as-applied claim accrued more than
two years prior to that filing. See Jones v. Bock, 549 U.S. 199, 215 (2007) (noting
that dismissal on the affirmative defense of statute of limitations is appropriate
only “if the allegations, taken as true,” show that relief is time-barred).
Admittedly, we cannot tell from the allegations of Mr. Ledford’s complaint that his
claim is timely. But that is not the standard we are bound to apply.
By holding Mr. Ledford’s as-applied challenge time barred, the panel locks
the courthouse doors on him and on virtually any other death row inmate who may
assert an as-applied challenge to an execution protocol in this Circuit. This defies
common sense, logic, our case law, and the dictates of the Eighth Amendment.
For these reasons and the reasons Judge Wilson has articulated in his dissent, I
believe we should have heard Mr. Ledford’s case en banc. I respectfully dissent.
29