[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
U.S. COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ELEVENTH CIRCUIT
________________________ September 17, 2007
THOMAS K. KAHN
No. 07-13929 CLERK
________________________
D.C. Docket No. 07-00342-CV-WS-C
THOMAS D. ARTHUR,
Plaintiff-Appellant,
versus
RICHARD ALLEN,
GRANTT CULLIVER,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Southern District of Alabama
_________________________
(September 17, 2007)
Before BIRCH, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff Thomas D. Arthur is an Alabama death row inmate scheduled for
execution by lethal injection on 27 September 2007. On 17 April 2007, the State
of Alabama (“Alabama”) filed its motion to set an execution date. On 14 May
2007, Arthur filed a 42 U.S.C. § 1983 complaint in the United States District
Court for the Southern District of Alabama, challenging Alabama’s method of
execution. On 22 June 2007, the Alabama Supreme Court granted Alabama’s
motion, and set the execution date for 27 September 2007. Alabama moved to
dismiss the complaint on 25 June 2007, alleging that Arthur’s complaint was
barred by the statute of limitations, laches, or for failure to state a claim upon
which relief could be granted. The district court granted Alabama’s motion on the
basis of laches. Arthur v. Allen, No. 07-0342, 2007 WL 2320069 (S.D. Ala. Aug.
10, 2007) (“Arthur”). Arthur timely appealed. After an expedited briefing
schedule, we affirm the district court’s judgment dismissing Arthur’s § 1983
action.
I. BACKGROUND
The details of Arthur’s offense are set forth in our opinion affirming the
district court’s judgment denying Arthur federal habeas relief. See Arthur v.
Allen, 452 F.3d 1234 (11th Cir.), modified on reh’g, 459 F.3d 1310 (11th Cir.
2006), cert. denied, U.S. , 127 S. Ct. 2033 (2007). Briefly, in 1982, Arthur,
while serving a sentence for murder in the second degree and assigned to a work
release center, murdered Troy Wicker, the husband of one of Arthur’s paramours,
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by shooting Wicker through the right eye, while he was asleep, with a .22 caliber
pistol.
Arthur was indicted for murder, convicted, and sentenced to death by
electrocution in 1982. His conviction and sentence were affirmed by the Alabama
Court of Appeals, Arthur v. State, 472 So. 2d 650 (Ala. Crim. App. 1984), but
reversed by the Alabama Supreme Court because the trial court had improperly
permitted evidence of Arthur’s prior murder conviction. In re Arthur, 472 So. 2d
665, 668-70 (Ala. 1985). The case was remanded for a new trial. Arthur v. State,
472 So. 2d 670 (Ala. Crim. App. 1985). In 1987, Arthur was again convicted and
sentenced to death. His conviction was reversed, however, because of the
admission of Arthur’s statement to the police after he had invoked his right to
remain silent. Arthur v. State, 575 So. 2d 1165, 1171-75 (Ala. Crim. App. 1990),
cert. denied, In re Arthur, 575 So. 2d 1191 (Ala. 1991) (per curiam). In 1991,
Arthur was indicted and convicted of murder for pecuniary gain. Arthur was
sentenced to death in 1992. His conviction and sentence were affirmed. Arthur v.
State, 711 So. 2d 1031 (Ala. Crim. App. 1996), affirmed, In re Arthur, 711 So. 2d
1097 (Ala. 1997). He did not file a petition for writ of certiorari to the United
States Supreme Court.
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Approximately twenty-nine months later, in September 2000, Alabama filed
a motion with the Alabama Supreme Court to set an execution date. In January
2001, Arthur filed a petition for postconviction relief with the state trial court.
The petition, however, was dismissed as untimely because of a mandatory two-
year limitations period required by Alabama Rule of Criminal Procedure 32.2(c),
and that decision was affirmed. Arthur v. State, 820 So. 2d 886, 888-90 (Ala.
Crim. App. 2001) (per curiam), cert. denied, Arthur v. Alabama, 535 U.S. 1053,
122 S. Ct. 1909 (2002). Arthur’s execution date was set for 27 April 2001. Ex
parte Arthur, 821 So. 2d 251 (Ala. 2001).
On 20 April 2001, Arthur filed a federal petition for writ of habeas corpus.
The district court granted a stay of execution and we denied a motion to vacate the
stay. Arthur v. Haley, 248 F.3d 1302, 1303 (11th Cir. 2001) (per curiam). In July
2002, while Arthur’s federal habeas petition was pending, the Alabama legislature
changed Alabama’s method of execution from electrocution to lethal injection.
The new statute gave death-row inmates 30 days to elect electrocution instead.
After that period of time, Alabama’s sole method of execution would be lethal
injection. See Ala. Code § 15-18-82.1 (2006 Cumulative Supp.).
The federal district court dismissed Arthur’s habeas petition but granted a
certificate of appealability. We affirmed the district court’s denial of habeas relief
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in 2006, and the Supreme Court denied his petition for writ of certiorari on 16
April 2007. The Alabama Supreme Court subsequently entered the order setting
the date of execution.
II. DISCUSSION
Arthur’s § 1983 action challenged Alabama’s three-drug lethal injection
protocol for violating the Eighth Amendment’s prohibition against cruel and
unusual punishment, and sought injunctive and declaratory judgment to prevent
Alabama’s use of the lethal injection procedure. The district court dismissed
Arthur’s § 1983 challenge, finding that Arthur delayed unnecessarily in bringing
his lethal injection challenge. On appeal, Arthur contends that the district court
erred in applying the “specialized equitable principles” for laches and in
dismissing his complaint based on these principles without a clear standard for
measuring the timeliness of his lethal injection challenge. We disagree.
“[W]e review the district court’s dismissal of a § 1983 method-of-execution
challenge [under the doctrine of laches] for abuse of discretion.” Grayson v.
Allen, 491 F.3d 1318, 1321 n.2 (11th Cir.), cert. denied, U.S. , S. Ct. ,
2007 WL 2086662, 76 U.S.L.W 3049(Jul. 26, 2007). “‘[T]he equitable principles
at issue when inmates facing imminent execution delay in raising their § 1983
method-of-execution challenges are equally applicable to requests for both stays
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and injunctive relief” and are “not available as a matter of right.’” Williams v.
Allen, ___ F.3d ___, 2007 WL 2368028 at *2 (11th Cir. 2007) (quoting Grayson,
491 F.3d at 1322). Those equitable principles include (1) “sensitiv[ity] to the
State’s strong interest in enforcing its criminal judgments without undue
interference from the federal courts,” (2) the plaintiff’s satisfaction of “all of the
requirements for a stay, including a showing of a significant possibility of success
on the merits,” (3) the application of “a strong equitable presumption against the
grant of a stay where the claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay,” and (4) protection of
the “States from dilatory or speculative suits.” Hill v. McDonough, U.S. , ,
126 S. Ct. 2096, 2104 (2006) (quoting Nelson v. Campbell, 541 U.S. 637, 649-50,
124 S. Ct. 2117, 2126). The strong interest of the State and the victims’s families
is “the timely enforcement of a sentence”, id. at , 126 S. Ct. at 2104, which
acquires “an added moral dimension” once post-trial proceedings finalize.
Calderon v. Thompson, 523 U.S. 538, 556 118 S. Ct. 1489, 1501 (1998).
A. Application of Specialized Equitable Principles for Laches
Arthur contends that the district court erred by applying the specialized
equitable principles instead of applying the elements of laches or the proper legal
standards for a Federal Rule of Civil Procedure Rule 12 dismissal. He maintains
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that we have not replaced the doctrine of laches with specialized equitable
principles and that such a dismissal requires a fact-specific inquiry inappropriate
on a motion to dismiss. He argues that his action, which was filed four months
before his scheduled execution, was filed sufficiently in advance to permit limited
discovery on his purported delay and the alleged prejudice to the State and the
victim’s family.
Relying upon the analysis set forth in Rutherford v. McDonough, 466 F.3d
970 (11th Cir.), cert. denied, U.S. , 127 S. Ct. 465 (2006), and Grayson, the
district court found that Arthur had unreasonably delayed in filing his § 1983
action. In considering the dismissal of a lethal injection challenge, courts are to
apply equitable principles which mandate dismissal when the plaintiff “delayed
unnecessarily in bringing the claim, . . . knowing full well that the discovery,
evidentiary hearing, and decision on the merits that he demands could not possibly
be accomplished” within the short period of time between filing and the scheduled
execution date. Rutherford, 466 F.3d at 974 (also citing and quoting Hill, U.S.
at , 126 S. Ct. at 2104 (“The federal courts can and should protect States from
dilatory . . .suits” or “suits . . . filed too late in the day.”); see also Grayson, 491
F.3d at 1321 (“[C]ourts considering dismissal of a dilatory § 1983 suit seeking
injunctive relief should recognize the ‘strong equitable presumption against the
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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” (quoting Rutherford,
466 F.3d at 974 (quoting Hill, U.S. at , 126 S. Ct. at 2104))); Williams, F.3d
at , 2007 WL 2368028 at *4 (“[T]he district court did not abuse its discretion in
dismissing Williams’s § 1983 action due to his unnecessary delay, especially
given the strong presumption against the grant of equitable relief.”).
As the district court concluded, Arthur is unable to defeat the State’s motion
to dismiss. Any claim of reasonable ignorance of the State’s lethal injection
protocol is belied by Arthur’s complaint in which he alleged, based on
“information and belief,” that Alabama uses the three-drug cocktail, specifically
identified as Thiopental, Pavulon, and potassium chloride, and his
acknowledgment that a number of Alabama cases were filed in the summer and
fall of 2006 alleging that Alabama used the same three-drug cocktail. R-1 at 6-7;
Arthur, slip op. at , 2007 WL 2320069 at *2; see e.g., Jones v. Allen, 485 F.3d
635, 641 n. 3 (11th Cir.), cert. denied, U.S. , 127 S. Ct. 2160 (2007); Grayson,
491 F.3d at 1323; Williams, F.3d at , 2007 WL 2368028 at *3. Further,
nothing precluded Arthur from filing a § 1983 challenge to our circuit precedent
mandating that method-of-execution claims be raised only in a habeas petition.
See Williams, F.3d at , 2007 WL 2368028 at *2 (citing Grayson, 491 F.3d at
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1322). Arthur did not file his § 1983 action until almost 16 months after the
Supreme Court granted certiorari in Hill v. Crosby, 546 U.S. 1158, 126 S. Ct.
1189 (2006), and almost 11 months after the Supreme Court clarified in Hill that
inmates could file § 1983 challenges to a state’s execution procedures. Although
“the equitable considerations in each case are naturally different,” even if Arthur
would have been entitled to a decision on the merits if he had brought his suit in
time to allow consideration of the merits without the entry of a stay, the strong
presumption against a stay operates against him. See Jones, 485 F.3d at 641 n. 4.
B. Standards for Timeliness of a Lethal Injection Challenge
Arthur argues that, if specialized equitable principles apply, the equities
weigh in favor of Arthur litigating the merits of his case and against dismissal. He
asserts that the standards for the timeliness of his challenge are novel and
undefined. He maintains that his complaint was prompt by reasonable standards
because it was filed in less than a month after the Supreme Court denied certiorari
on his federal habeas corpus petition and before the Alabama Supreme Court had
set an execution date.
The district court noted that we have “declined to determine precisely when
[a § 1983 method-of-execution challenge] becomes ripe, but [we] ha[ve] clearly
rejected the notion that denial of certiorari is required,” and concluded that Arthur
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unreasonably delayed filing his action when he did not file for nine months after
we had denied relief in his federal habeas action in August 2006. Arthur, slip op.
at , 2007 WL 2320069 at 4.
In rejecting similar challenges, we have held that waiting until the Supreme
Court has denied certiorari review of a federal habeas petition or even until a
certiorari petition has been pending for over three months, Jones, 485 F.3d at 640
n.2, or “until after the State file[s a] motion to set the execution date is too late to
avoid the inevitable need for a stay of execution” and is too late to allow for a full
adjudication of the merits of his action. See Williams, F.3d at , 2007 WL
2368028 at *2.
Arthur’s § 1983 action was filed before his execution date was set but was
filed only four months before the execution date was ultimately set. In Alabama,
“it is common practice for the State to ask the Alabama Supreme Court to set an
execution date for a death row inmate shortly after the United States Supreme
Court has denied certiorari review of the [inmate’s] federal habeas petition.
Williams, F.3d at , 2007 WL 2368028 at *2 (citing Jones, 485 F.3d at 639
n.2). When Arthur filed his petition for writ of certiorari in the Supreme Court on
11 January 2007, it was clear that a denial of the petition would remove the final
obstacle to lifting the stay of execution. Once the stay was lifted, execution could
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be set in as few as 30 days. See Ala. R. App. P. 8(d)(1); see also Jones, 485 F.3d
at 639 n. 2. As the district court noted, four months is not enough time for this
case to be fully adjudicated. See Arthur, slip op. at , 2007 WL 2320069 at *4
and n.6. Arthur was on notice that a challenge to Alabama’s method-of-execution
was available under § 1983 as early as June 2006, as a result of the Supreme
Court’s decision in Hill, or August 2006, as a result of other filed Alabama
actions.1
IIII. CONCLUSION
We conclude that the district court did not abuse its discretion in dismissing
Arthur’s § 1983 action due to laches, especially given the strong presumption
against the grant of equitable relief. There was no justification for Arthur’s failure
to bring his lethal injection challenge earlier to allow sufficient time for full
adjudication on the merits of this claim. Accordingly, the district court’s judgment
of dismissal is AFFIRMED.
1
Following the Hill decision and clarification that a method-of-execution challenge was
to be filed as a § 1983 action and not as a petition for writ of habeas corpus, there was no
impediment to Arthur seeking relief under § 1983 during the pendency of his habeas corpus petition.
See Nelson v. Campbell, 541 U.S. 637, 643, 124 S. Ct. 2117, 2122 (2004), Grayson, 491 F.3d at
1323; Williams, F.3d at , 2007 WL 23688028 at *2.
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BARKETT, Circuit Judge, dissenting:
I dissent believing it to be error for the district court to refuse to hear an
Eighth Amendment challenge to Alabama’s lethal injection protocol simply
because the § 1983 petitioner failed to file his claim as soon as the Alabama
legislature changed Alabama’s method of execution to lethal injection. See also
Williams v. Allen, No. 07-13638 at *5, ---F.3d---, 2007 WL 2368028 (11th Cir.
Aug. 21, 2007) (Barkett, J., dissenting).
First, it is wholly unreasonable to expect an inmate to have predicted
scientific data—only recently available—that suggests that inadequacies in the
three-drug protocol inflict “cruel and unusual punishment” as proscribed by the
Eighth Amendment. See id. Assuming arguendo that the three-drug protocol does
violate the Eighth Amendment, and that the scientific evidence that showed this
did not come into existence until some time after Alabama adopted the protocol,
the practical effect of our law in this area is to knowingly permit the
unconstitutional execution of several inmates, simply because the inmates had the
misfortune of being sentenced to death before the scientific data revealing the
constitutional infirmity of such executions could have been known. This is
patently unacceptable. Indeed, the Constitution forbids the infliction of “cruel and
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unusual punishment” at the time of its imposition, regardless of the circumstances
at the time the death penalty sentence was imposed.
Second, I continue to find untenable the suggestion that the petitioner
“should have anticipated the denial of all relief and filed this case prior to the
determination of his pending case.” See id. (emphasis in original). Indeed, even
the State of Alabama itself is not so bold and therefore will not set an execution
date until after the United States Supreme Court denies certiorari review of an
inmate’s federal habeas petition. See Jones v. Allen, 485 F.3d 635, 639 n.2 (11th
Cir. 2007).
For these reasons, I dissent.
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