[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11878
Non-Argument Calendar
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D.C. Docket No. 1:19-cv-00057-KD-MU
CHRISTOPHER LEE PRICE,
Plaintiff - Appellant,
versus
COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Alabama
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(May 24, 2019)
Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Christopher Lee Price appeals from the district court’s
denial of Price’s motion to stay his execution under 28 U.S.C. § 1292(a)(1). Before
addressing Price’s arguments, we pause to briefly set forth the facts and relevant
history.
I.
The last time Price was before us, we issued a decision affirming, on different
grounds, the district court’s denial of a previous motion for stay of execution (“First
Motion for Stay”) filed by Price. See Price v. Comm’r, Dep’t. of Corr., 920 F.3d
1317 (11th Cir. 2019). There, we found that the district court had before it no reliable
evidence from which to conclude that execution by nitrogen hypoxia would
significantly reduce Price’s risk of substantial pain as compared to the State of
Alabama’s current three-drug lethal-injection protocol. Id. at 1330. In reaching this
conclusion, we determined that the district court improperly relied on a preliminary
draft report by East Central University labeled “Do Not Cite.” Id.
Following our affirmance, and just before his scheduled execution, Price filed
a petition for writ of certiorari and an application for a stay of his execution with the
Supreme Court. While those filings were pending, Price filed another motion for
stay of execution with the district court, seeking essentially the same relief as the
first, but attaching several affidavits and a final report by the East Central University
2
(“Second Motion for Stay”).1 The district court granted the Second Motion for Stay
hours before Price’s scheduled execution, after concluding that Price met his burden
of showing a likelihood of success on the merits of his Eighth Amendment claim.
The State immediately filed with this Court a motion to vacate the stay, arguing, in
part, that the district court lacked jurisdiction to enter its order. We found that
substantial questions about our jurisdiction and the district court’s jurisdiction were
present, so we entered an order staying Price’s impending execution until further
order of the Court. The State then sought for the Supreme Court to vacate the stays.
In a 5-4 decision entered in the early morning hours of April 12, 2019, the
Supreme Court lifted the stays entered by both this Court and the district court. The
majority explained its reasoning as follows:
The application to vacate the stay of execution, presented
to Justice THOMAS and by him referred to the Court, is
granted, and the stays entered by the District Court for the
Southern District of Alabama and the United States Court
of Appeals for the Eleventh Circuit on April 11, 2019, are
vacated. In June 2018, death-row inmates in Alabama
whose convictions were final before June 1, 2018, had 30
days to elect to be executed via nitrogen hypoxia. Ala.
Code § 15-18-82.1(b)(2). Price, whose conviction became
final in 1999, did not do so, even though the record
indicates that all death-row inmates were provided a
written election form, and 48 other death-row inmates
elected nitrogen hypoxia. He then waited until February
2019 to file this action and submitted additional evidence
today, a few hours before his scheduled execution time.
1
In the meantime, Price filed with this Court an Emergency Motion to Immediately Issue
Mandate.
3
See Gomez v. United States Dist. Court for Northern Dist.
of Cal., 503 U.S. 653, 654, 112 S. Ct. 1652, 118 L.Ed.2d
293 (1992) (per curiam) (“A court may consider the last-
minute nature of an application to stay execution in
deciding whether to grant equitable relief.”).
Dunn v. Price, 139 S. Ct. 1312 (Apr. 12, 2019). By the time the Supreme Court
entered its decision, however, Price’s death warrant had already expired, so his
execution did not proceed as originally scheduled.
A few days later, on April 15, 2019, the State filed an emergency motion for
an expedited second execution date with the Alabama Supreme Court. On the same
date, the district court held a status conference with the parties to determine how to
proceed with Price’s method-of-execution lawsuit. At the conference, Price
requested that the district court schedule his Section 1983 claim for trial. In response
to questions posed by the district court during the status conference, both Price and
the State filed their relative positions regarding whether the district court had
jurisdiction to proceed with the case and whether the Supreme Court’s order vacating
the stays of Price’s execution resolved Price’s Section 1983 claim. Both parties
agreed that the district court had jurisdiction to proceed with the case. And although
both parties appeared to agree that the Supreme Court’s April 12, 2019, order did
not resolve the merits of the Section 1983 action, the State argued that the order
made it clear that Price was not entitled to another stay of execution.
4
Soon thereafter, the district court entered an order granting Price’s oral request
for an expedited trial, setting a June 10, 2019, non-jury trial on Price’s Eighth
Amendment claim. In the same order, the district court explained, “The Plaintiff’s
request that the case be expedited further, if the execution date is set before the trial,
is DENIED. Pursuant to the Supreme Court’s [April 12, 2019,] decision, no further
stay of execution will be granted.”2 One week later, on April 29, 2019, the State of
Alabama set Price’s new execution date for May 30, 2019.
In response, Price filed a motion in which he sought, among other things,
another stay of execution (“Third Motion for Stay”). The following day, on May 1,
2019, the district court denied, in part, Price’s request to stay his execution. In doing
so, the district court set forth the entirety of the Supreme Court’s April 12, 2019,
majority decision. The district court then explained that the “Supreme Court vacated
the stay of execution due to Price’s failure to timely elect for nitrogen hypoxia,
making clear that a stay of execution is not an available remedy to Price.” The
district court entered another order denying the remaining portion of Price’s motion
on May 2, 2019.
Price now appeals the district court’s orders (1) indicating that no further stays
will be entered, and (2) denying his Third Motion for Stay. He argues that the district
2
At the time, Price’s new execution date had not yet been set.
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court erred as a matter of law in construing the Supreme Court’s April 12, 2019,
decision as categorically precluding it from issuing any further stays in Price’s case.
II.
We review the district court’s categorical denial of future motions for stay of
execution, as well as its denial of the Third Motion for Stay, for abuse of discretion.
Brooks v. Warden, 810 F.3d 812, 818 (11th Cir. 2016). An error of law is an abuse
of discretion. Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1331 (11th Cir. 2014).
After consideration, and in light of the Supreme Court’s prior ruling in its April 12,
2019, order, we conclude that though the district court may not categorically deny
all future motions for stay, without knowledge of the particular bases for them, the
district court did not abuse its discretion when it denied Price’s Third Motion for
Stay.
III.
We have carefully reviewed the Supreme Court’s April 12, 2019, decision.
There, a majority of the Court lifted the stays of execution entered by this Court and
the district court based on what it found to be Price’s undue delay in the case. See
Dunn, 139 S. Ct. at 1312 (citing Gomez v. United States Dist. Court for Northern
Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-
minute nature of an application to stay execution in deciding whether to grant
equitable relief.”)). The majority articulated three examples in support of its finding
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that Price’s actions were untimely and supported a denial of his motion for stay of
execution: (1) Price’s failure to timely elect nitrogen hypoxia within the 30-day
statutory opt-in period; (2) Price’s decision to wait until February 2019 to file a
Section 1983 action challenging his method of execution; and (3) Price’s failure to
submit potentially adequate evidence until a few hours before his scheduled
execution time. See id.
Recently, albeit in denying a different petition for writ of certiorari filed by
Price, Justice Thomas provided further insight regarding what he and two other
Justices perceived to be dilatory behavior by Price in this case. Price v. Dunn, No.
18-1249, 2019 WL 2078104 (U.S. May 13, 2019) (mem.). As evidence of
unjustified delay, Justice Thomas pointed out that Price
delayed in bringing this successive § 1983 action until
almost a year after Alabama enacted the legislation
authorizing nitrogen hypoxia as an alternative method, six
months after he forwent electing it as his preferred
method, and weeks after the State sought to set an
execution date.
Id. at *4 (Thomas, J., concurring). According to Justice Thomas, entering a stay
“under these circumstances—in which the petitioner inexcusably filed additional
evidence hours before his scheduled execution after delaying bringing his challenge
in the first place—only encourages the proliferation of dilatory litigation strategies
that we have recently and repeatedly sought to discourage.” Id. (citations omitted).
7
Here, Price claims the district court misconstrued the Supreme Court’s April
12, 2019, order when it found that the decision precluded the district court from
issuing any further stay of execution. We agree with Price, but only to the extent
that the district court understood the Supreme Court’s April 12, 2019, order to
categorically preclude the issuance of further stays of execution in this case, no
matter the reason. If, for example, some last-minute event occurred that potentially
provided an appropriate basis for a stay and could not possibly have been brought
earlier because the triggering event did not occur until immediately before the
motion was brought (e.g., if the State substituted baby aspirin for midazolam at the
last minute), the Supreme Court’s reasoning that Price could not obtain a stay
because he had been dilatory in seeking one would not apply, and the motion would
have to be evaluated on its own merits.
But with respect to the order denying the Third Motion for Stay, that is not an
issue. As grounds for its denial, the district court stated that the “Supreme Court
vacated the stay of execution due to Price's failure to timely elect for nitrogen
hypoxia, making clear that a stay of execution is not an available remedy to Price.”
To the extent the district court suggested that Price was not able to seek a stay of
execution only because he failed to timely opt-in to Alabama’s nitrogen hypoxia
protocol within thirty days, we disagree. The Supreme Court’s April 12, 2019,
decision did not announce such a holding.
8
Rather, as we have discussed, the Supreme Court vacated the stays because it
found Price’s actions to be untimely. While the Supreme Court’s April 12, 2019,
decision mentioned Price’s failure to opt-in to the nitrogen hypoxia protocol within
the thirty-day statutory period, it did so merely as an example in support of its
conclusion that Price did not act in a timely manner—both in bringing his Section
1983 claim and later in filing his First and Second Motions for Stay.
We need not opine on how much of a role Price’s missing the thirty-day opt-
in period played in the Supreme Court’s determination to vacate the stays. The
Supreme Court made clear by pointing to various examples—including Price’s delay
in bringing his action and filing additional evidence just a few hours before his
execution—that Price waited too long to advance his claims. Accordingly, the
Supreme Court deemed Price’s claims untimely regardless of the thirty-day opt-in
period put into place by the State of Alabama.
That the Supreme Court found Price’s claims to be untimely is now the law
of this case. See United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 2014)
(appellate decisions bind subsequent proceedings in the same case “not only as to
explicit rulings, but also as to issues decided necessarily by implication on the prior
appeal.”) (citation and internal quotation marks omitted). Considering this fact, we
agree with the district court’s conclusion that it could not grant Price’s Third Motion
for Stay. Here, Price asserts that he is entitled to a stay of execution to allow the
9
district-court trial proceedings to occur, since the Supreme Court did not opine on
the merits of his challenge.
But the problem for Price is that the Supreme Court’s reasoning for denying
Price a stay applies equally to his Third Motion for Stay as it did to his First and
Second Motions. In other words, Price brings no new claims that he could not have
known about earlier. And if Price’s claims were untimely in April 2019, they are no
more timely now that an additional six weeks have passed.
Price points to the Supreme Court’s recent grant of stay of execution in
Murphy v. Collier, No. 18A985, 2019 WL 2078111, at *1 (U.S. Mar. 28, 2019)
(mem.), to support his argument that the district court’s interpretation of the Supreme
Court’s April 12, 2019, opinion was flawed. He notes that in Murphy, the petitioner
challenged a Texas policy that had been in place for years, and the challenge came
only one month prior to the petitioner’s execution. Price also points to Justice
Kavanaugh’s concurrence, in which he stated that the one-month filing period was
sufficiently timely. Price further emphasizes that here, he sought to be executed by
nitrogen hypoxia in January 2019, more than a month prior to having been assigned
an execution date. So by implication, Price argues his claim is not untimely.
Notwithstanding that Murphy presents circumstances and claims dissimilar to
those presented here, the holding in Murphy, is the law of the case in that case. It
does not dictate the outcome here where the Supreme Court has already spoken on
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the issue of timeliness. The fundamental problem for Price is the Supreme Court
has already found his claim to be untimely and, therefore, unworthy of a stay of
execution. And because that holding it is the law of this case, both this Court and
the district court are bound by the April 12, 2019, decision.
IV.
Although we do not agree with the district court’s reasoning for denying
Price’s Third Motion for Stay, we agree that the district court correctly concluded
that it had to deny Price’s Third Motion for Stay under the Supreme Court’s April
12, 2019, order. We therefore affirm the district court’s denial of the Third Motion
for Stay. See Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213,
1220 (11th Cir. 2018) (holding that we may affirm the district court on any basis that
the record supports).
AFFIRMED.
11