[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-15095 October 08, 2003
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 03-T-1008
DAVID LARRY NELSON,
Plaintiff-Appellant,
versus
DONAL CAMPBELL, in his individual
and official capacity as Commissioner of
the Alabama Department of Corrections,
GRANTT CULLIVER,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(October 8, 2003)
Before ANDERSON, HULL and WILSON, Circuit Judges.
ANDERSON, Circuit Judge:
David Larry Nelson is an Alabama inmate convicted of capital murder and
sentenced to death. On October 6, 2003, three days prior to his scheduled
execution, Nelson filed a 42 U.S.C. § 1983 action in the Middle District of
Alabama. In his complaint, Nelson asserts that he has severely compromised veins
and that Alabama's proposed use of a "cut-down" procedure to gain venous access
(if access to a suitable vein cannot be achieved) as part of the lethal injection
procedure constitutes cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments.1 Nelson further asserts a state law claim, pursuant to 28
U.S.C. § 1367, alleging that he has been denied access to his physician in violation
of Alabama law. Among other relief, Nelson requests an order granting injunctive
relief and staying his execution scheduled for October 9, 2003. By order dated
October 7, 2003, the district court dismissed Nelson's complaint for lack of
jurisdiction. We affirm.
As we stated in Hill v. Hopper, 112 F.3d 1088, 1088-1089 (11th Cir. 1997),
"a prisoner may not circumvent the rules regarding second or successive habeas
petitions by filing a § 1983 claim." See also Felker v. Turpin, 101 F.3d 95 (11th
Cir. 1996); Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir.
2002).
The full procedural history of this case prior to the instant § 1983 claim is set out
1
The "cut-down" procedure would require making a two inch incision in Nelson's upper
arm for the purpose of locating a peripheral vein to perform a central line procedure. The
procedure would be performed using local anesthetic.
2
in detail in Nelson v. Alabama, 292 F.3d 1291, 1293-1294 (11th Cir. 2002).
However, for the purposes of this appeal it is sufficient to state that Nelson
previously filed a federal habeas petition on April 14, 1997, alleging error due to
the trial courts failure to conduct a Faretta hearing prior to allowing him to
proceed pro se at his 1994 re-sentencing hearing. Nelson v. Alabama, 292 F.3d at
1294.2
Because Nelson has previously filed a federal habeas petition, we are
confronted with the question of whether Nelson's complaint seeking relief under
42 U.S.C. § 1983 constitutes the "functional equivalent" of a second or successive
habeas petition, such that it would be subject to the requirements 28 U.S.C. §
2244. Fugate v. Dept. of Corrs., 301 F.3d 1287, 1288 (11th Cir. 2002); Hill v.
Hopper, 112 F.3d at 1089; Felker v. Turpin, 101 F.3d at 96. Nelson's § 1983 claim
alleges that Alabama's proposed possible3 use of the "cut-down" procedure to gain
venous access as part of the lethal injection procedure constitutes cruel and
2
Additionally, Nelson, through his counsel, acknowledged that he had exhausted all
available habeas corpus relief and that he would have to get permission from the Eleventh Circuit
in order to file a second or successive habeas petition. Tr. of In-Chambers Tel. Conference, Oct.
7, 2003, at *22-23.
3
We say "possible" because Alabama first proposes to gain venous access through a
femoral vein in Nelson's thigh and if unsuccessful through the external carotid artery in Nelson's
neck, neither of which procedure Nelson challenges. It is only if venous access cannot be readily
gained in those two areas that Alabama proposes to use the third alternative of the "cut-down"
procedure.
3
unusual punishment. We addressed a similar § 1983 claim in Fugate v.
Department of Corrections, 301 F.3d 1287. The plaintiff in Fugate asserted,
among other challenges to the State of Georgia's lethal injection procedure, that
the use of a "cut-down" procedure in the absence of a suitable vein violated the
Eighth and Fourteenth Amendments. Compl. for Injunctive Relief and Decl. J.,
filed Aug. 12, 2002, ¶¶ 24-28, Fugate v. Dep't of Corrs., No. 02-02219-CV-CC
(N.D. Ga. Aug. 13, 2002). On appeal, we held that the district court properly
dismissed the § 1983 action to "enjoin and restrain the defendants from executing
[Fugate] until they [took] certain measure[s] to minimize the risk of unnecessary
pain, suffering and mutilation during the execution process," because the § 1983
action constituted the "functional equivalent" of a second habeas petition. 301
F.3d at 1288. Pursuant to Fugate, we conclude that Nelson's § 1983 claim also
constitutes the "functional equivalent" of a second habeas petition as it seeks an
immediate stay to the imposition of Nelson's death sentence. See Fugate, 301 F.3d
at 1288; Spivey v. State Board of Pardons and Paroles, 279 F.3d 1301, 1303 &
n.4. We believe that the instant case is indistinguishable from Fugate; both sought
to minimize the risk of unnecessary pain during the execution process, and both
sought to stay the execution until appropriate corrective measures were taken.
Because Nelson's § 1983 claim was the "functional equivalent" of a second
4
habeas petition and because Nelson did not get our permission to file a second
habeas petition prior to filing in the district court as required by 28 U.S.C.
§2244(b)(3)(A), the district court properly dismissed Nelson's § 1983 claim for
lack of jurisdiction to entertain the claim. Fugate, 301 F.3d at 1288; Hill, 112 F.3d
at 1089. Moreover, even had Nelson sought our permission to file a second
habeas petition, the facts alleged indicate that Nelson's application would have
been denied pursuant to 28 U.S.C. § 2244(b)(2) because his cruel and unusual
punishment claim neither "relies on a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable," nor has a "factual predicate for the claim [that] could not have been
discovered previously through the exercise of due diligence... [that] if proven and
viewed in light of the evidence as a whole, would be sufficient to establish... that,
but for constitutional error, no reasonable factfinder would have found the
applicant guilty of the underlying offense." See 28 U.S.C. § 2244(b)(2); Felker v.
Turpin, 101 F.3d at 97; In re Provenzano, 215 F.3d 1233, 1235-1236 (11th Cir.
2000) (involving an application for second habeas petition challenging lethal
injection as administered by the State of Florida as cruel and unusual punishment
and dismissing it because the claim did not meet the requirements of §
2244(b)(2)).
5
With respect to Nelson's state law claim, we agree with the district court that
it is barred by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106,
104 S. Ct. 900, 911 (1994).
For the foregoing reasons the district court's judgment dismissing Nelson's
complaint is affirmed. Nelson's motion to enjoin defendants from executing him is
denied.
The judgment of the district court is AFFIRMED4, and Nelson's motion for
4
While the dissent's distinction of Felker v. Turpin, Hill v. Hopper, and possibly even
Gilreath v. State Board of Pardons & Paroles, 273 F.3d 932 (11th Cir. 2001), may be plausible,
we believe its attempt to distinguish Fugate is flawed. As noted in our opinion, we do not
believe Fugate is distinguishable. Fugate was no more attempting to avoid his sentence than is
Nelson. Both asserted that they were not challenging their sentence. See Compl. for Injunctive
Relief and Decl. J., filed Aug. 12, 2002, at *1, Fugate v. Dep't of Corrs., No. 02-02219-CV-CC
(N.D. Ga. Aug. 13, 2002). (first sentence) ("Fugate ... brings this action pursuant to 42 U.S.C. §
1983 challenging not his sentence of death, nor lethal injection as a manner of inflicting death,
but the failure of Georgia officials in changing from electrocution to lethal injection to take
sufficient measures to minimize the risk of him experiencing extreme and excruciating pain"). In
both this case and in Fugate, the appellants suggested less painful alternative ways to implement
lethal injection. In short, both cases sought to "enjoin ... the defendants from executing him until
they take certain measures to minimize the risk of unnecessary pain." Fugate, 301 F.3d at 1288
(emphasis added).
We also reject the dissent's suggestion that Nelson's attempt to stay his execution is
irrelevant to the "functional equivalent" issue. See Spivey v. State Bd.of Pardons and Paroles,
279 F.3d at 1303 (reviewing our decision in Gilreath and stating "In reviewing the denial of a
motion for preliminary injunction to stay Gilreath's execution, the Court held that '[w]e look at
the kind of relief Appellant seeks and conclude that, however the Appellant describes it, the
motion was for habeas corpus relief.'"); See also Spivey, 279 F.3d at 1304 n.4 (distinguishing the
claim in Spivey from the claim in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.
Ct. 1244 (1998), stating "There, no execution date was imminent, and there is no indication that
Woodard's claims would necessarily imply a challenge to the imposition of a death sentence.").
Nelson's prayer to stay his execution directly impedes the implementation of the state sentence,
and is indicative of an effort to accomplish via §1983 that which cannot be accomplished by a
successive petition for habeas corpus. Bradley v. Pryor, 305 F.3d 1287 (11th Cir. 2002), is
6
stay of execution is DENIED.5
readily distinguished from the instant case. That case involved no attempt to stay Bradley's
execution, and no attempt to interfere with the implementation of the state sentence.
5
The Appellant's request for oral argument is denied.
7
WILSON, Circuit Judge, dissenting:
The majority holds that Nelson’s Eighth Amendment claim challenging the
unique manner of his execution, filed under 42 U.S.C. § 1983, is the “functional
equivalent” of a habeas petition, and is therefore subject to the requirements
governing second or successive habeas petitions under 28 U.S.C. § 2244. In light
of the clear authority indicating that Nelson’s claim should be construed
exclusively under § 1983, I strongly disagree with the majority’s holding.
Nelson seeks only a temporary stay of execution until concerns regarding
the manner of his execution are addressed.1
A complaint seeking § 1983 relief in the form of a temporary stay of
execution is not automatically equivalent to a successive habeas petition. Before
making the determination of whether such a stay should be considered a habeas
petition or a civil rights action, the court must inquire into the fundamental
question of whether the plaintiff is actually seeking to challenge either the fact of
1
The majority notes that Nelson filed his § 1983 claim only three days prior to his
execution. However, the procedure at issue here had never before been implemented in Alabama
and prison officials had to craft a special procedure to govern Nelson’s execution. It is unclear at
what point they finalized the procedure and notified Nelson of it. Even in light of the chance that
Nelson seeks redress in the courts solely as a means of delaying the inevitable, the possibility of
his only recently being notified of the procedure requires our caution.
8
his conviction or the duration of his sentence–the touchstones of habeas relief.2 If
the plaintiff's § 1983 complaint "would necessarily imply the invalidity of his
conviction or sentence," the complaint must be dismissed. Heck v. Humphrey, 512
U.S. 477, 487 (1994). On the contrary, "if the plaintiff's action . . . even if
successful, will not demonstrate the invalidity of any outstanding criminal
judgment against the plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit." Id. In this case, Nelson was sentenced to
death by lethal injection, not by lethal injection subject to any painful secondary
procedure that Alabama state prison officials deem appropriate. He thus
challenges neither his conviction nor his sentence. Rather, he requests the
opportunity to enforce his Eighth Amendment rights; an opportunity that, as noted
by the district court, would be wholly absent if this action were deemed the
equivalent of a second habeas petition.
Appellees assert that this case is controlled by this court’s decision in
Fugate v. Dep't of Corrs., 301 F.3d 1287 (11th Cir. 2002) (per curiam). In Fugate,
an inmate sought a stay of execution, alleging that the manner in which Georgia
2
A court “shall entertain an application for a writ of habeas corpus in behalf of a person in
custody pursuant to the judgment of a state court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (2003)
(emphasis added). Here, Nelson does not make such a challenge.
9
administered its lethal injections was cruel and unusual under the Eighth
Amendment. We held that the district court lacked jurisdiction to consider
Fugate’s claim because it was the functional equivalent of a second habeas
petition, and he had not previously applied to this court for permission to file such
a petition under § 2244(b)(3)(A). See Fugate, 301 F.3d at 1288. Although the
facts in Fugate are similar to those in this case, Fugate does not control the
question before us. Fugate was sentenced to death by lethal injection under
Georgia law. By seeking a stay of execution on the basis of a challenge to
Georgia’s method of administering its lethal injections, Fugate was, in effect,
attempting to avoid his specific sentence. Therefore, the decision that Fugate’s
claim was the “functional equivalent” of a successive habeas petition was
reasonable.3 The same is true of our decisions in Hill v. Hopper, 112 F.3d 1088
(11th Cir. 1997) (per curiam) (holding that an inmate's constitutional challenge to
electrocution as means of execution was the functional equivalent of a second
habeas petition) and Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996) (per curiam).
Here, however, Nelson is not seeking to avoid execution by lethal injection under
3
Nevertheless, I believe that our decisions in Fugate and its prior related cases are
questionable under the standards defining habeas actions. A challenge to the manner in which an
inmate is executed, in general, is not necessarily a challenge to the inmate’s sentence of death or
his conviction. The inmate’s execution will presumably proceed, either in the same manner or in
a different manner, pending subsequent proceedings. An avenue for review of Eighth
Amendment claims must remain available to those facing death at the hands of the state.
10
Alabama law. The “cut down” procedure that is to be used in his execution is not
within Alabama’s execution procedure, nor has it been reviewed to ensure that it
passes muster under the Eighth Amendment. Nelson merely requests that a
different, more humane procedure known as “percutaneous central venous
cannulation” be used to carry out his execution, rather than the outmoded and
painful “cut down” procedure. Regardless of which procedure is used, Nelson will
be executed by lethal injection in accordance with his sentence. However, with
the implementation of the “cut down” procedure, Nelson’s Eighth Amendment
rights may be compromised in the process.
The district court noted that the rulings of the Eleventh Circuit appear to
make a distinction between cases in which a death row inmate’s execution is
imminent and cases in which execution is not imminent. In Bradley v. Pryor, 305
F.3d 1287 (11th Cir. 2002), which was decided within weeks of Fugate, we held
that a death row inmate’s § 1983 action for production of DNA evidence was not a
successive habeas petition because it “neither directly, nor by necessary
implication, attack[ed] the validity of his conviction and sentence.” Bradley, 305
F.3d at 1288. In his concurrence, and without further explanation, Chief Judge
Edmondson stressed that the fact that Bradley did not request a stay of his
execution as part of his claim was an “important” part of his decision. Id. at 1292
11
(Edmondson, C.J., concurring).
However, I fail to see the relevance of a request for a stay of execution to
the question of whether an action is the equivalent of a habeas petition. In
Gilreath v. State Bd. of Pardons & Paroles, 273 F.3d 932 (11th Cir. 2001) (per
curiam), we held that a death row inmate’s motion for a preliminary injunction to
stay his execution pending an appeal in a clemency proceeding was equivalent to a
second habeas petition. However, we did not hold that every motion for a stay of
execution was tantamount to a petition for habeas relief. In fact, we stated in the
opinion that “[w]e look to the kind of relief [the inmate] seeks from the federal
courts” in determining whether a petitioner seeks habeas relief. Id. at 933. Since
the inmate in Gilreath sought clemency, or relief from his penalty, it was clear that
his petition for a stay of execution was for the purpose of attacking his sentence.
Here, Nelson’s request for a stay has no bearing on his conviction or his sentence,
nor will it ever. If his stay is granted, he will at most have a limited opportunity to
pursue his Eighth Amendment claims. Whatever the outcome, Nelson will be
executed.
Nelson asks not to be spared; he asks only that he be executed humanely in
accordance with his constitutional rights. The bottom line in this case is that the
outcome of Nelson’s petition has no effect on either his sentence or his conviction,
12
and therefore cannot properly be construed under any circumstances as the
equivalent to a subsequent habeas petition. Therefore, pursuant to Heck v.
Humphrey, Nelson’s § 1983 action should be allowed to proceed. 512 U.S. at 487.
I respectfully dissent.
13