United States Court of Appeals,
Eleventh Circuit.
No. 97-6306.
Walter HILL, Plaintiff-Appellant,
v.
Joe S. HOPPER, Commissioner of Alabama Department of Corrections,
Defendant-Appellee.
April 17, 1997.
Appeal from the United States District Court for the Middle
District of Alabama. (No. 97-T-476-N), Myron H. Thompson, Chief
Judge.
Before HATCHETT, Chief Judge, and COX and BLACK, Circuit Judges.
PER CURIAM:
Appellant Walter Hill, an Alabama inmate convicted of capital
murder and sentenced to death, challenges on appeal the district
court's dismissal of his 42 U.S.C. § 1983 assault upon the
constitutionality of electrocution as a means of execution. The
State of Alabama intends to execute Hill by means of electrocution
on May 2, 1997. On March 31, 1997, Appellant Hill filed a
complaint in the United States District Court for the Middle
District of Alabama charging that the scheduled electrocution
constitutes cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. Among other relief, the complaint
sought to enjoin Appellee Joe S. Hopper from employing
electrocution to carry out Hill's death sentence. By order dated
April 10, 1997, the district court dismissed the complaint as an
improper successive habeas petition. We affirm.
In Felker v. Turpin, 101 F.3d 95, 96 (11th Cir.), cert.
denied, --- U.S. ----, 117 S.Ct. 450, 136 L.Ed.2d 345 (1996), we
held that a prisoner may not circumvent the rules regarding second
or successive habeas petitions by filing a § 1983 claim. Appellant
Hill acknowledges that he has filed a previous federal habeas
petition. See Hill v. Jones, 81 F.3d 1015 (11th Cir.), reh'g and
suggestion for reh'g en banc denied, 92 F.3d 1202 (11th Cir.1996),
cert. denied, --- U.S. ----, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997).
As Hill's § 1983 cruel and unusual punishment claim constitutes the
"functional equivalent" of a second habeas petition, the district
court was subject to the law applicable to successive habeas
petitions. Felker, 101 F.3d at 96. Under 28 U.S.C. §
2244(b)(3)(A), the district court lacked jurisdiction to consider
Appellant Hill's request for relief because Hill had not applied to
this Court for permission to file a second habeas petition.
AFFIRMED.