[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 24, 2006
_______________________
THOMAS K. KAHN
CLERK
No. 06-15510
Non-Argument Calendar
________________________
D. C. Docket No. 06-00657-CV-WS-C
LARRY HUTCHERSON,
Plaintiff-Appellant,
versus
BOB RILEY,
TROY KING,
DRAYTON NABORS,
SETH HAMMETT,
LUCY BAXLEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(October 24, 2006)
Before BIRCH, DUBINA and WILSON, Circuit Judges.
DUBINA, Circuit Judge:
Before the court for review is Larry Eugene Hutcherson’s (“Hutcherson”)
appeal from the district court’s dismissal of his 42 U.S.C. § 1983 action, and a
Motion to Stay his Execution pending appeal (Appeal No. 06-15510). Hutcherson
filed his § 1983 complaint in district court 14 days prior to his scheduled execution
date of October 26, 2006. On October 19, 2006, Hutcherson filed an Application
for Leave to File a Successive Habeas Petition and a Motion to Stay (Appeal No.
06-15544), which we deny in a separate order. For the reasons that follow, we
affirm the district court’s order denying Hutcherson relief under § 1983, and we
deny his concomitant Motion to Stay his Execution.
I. BACKGROUND
A Mobile County, Alabama, jury originally convicted Hutcherson of capital
murder occurring during the course of sodomy and burglary. The jury
recommended a death sentence by a vote of 11-1. The circuit court followed the
jury’s recommendation and sentenced Hutcherson to death. In affirming
Hutcherson’s convictions and sentence, the Alabama Court of Criminal Appeals
found the facts, in part, as follows:
The state’s evidence tended to show that on June 26, 1992, the body of
89-year-old Irma Thelma Gray was discovered in her home on Moffatt
Road in Mobile, Alabama. The victim’s throat had been cut so
severely that she was almost decapitated. Dr. Leroy Riddick, a
forensic medical examiner, testified that the cut on her throat was 10
inches long, beginning at her left earlobe and progressing to within one
and one-half inch of her right earlobe. The cut severed her windpipe
and her carotid artery and went all the way to her spine. The victim
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had many other injuries that Dr. Riddick testified occurred before her
throat was cut. These injuries, consistent with a beating, included
numerous other cuts, bruises, and multiple fractured ribs. There was
also evidence that the victim had been sodomized.
Hutcherson v. State, 677 So. 2d 1174, 1178 (Ala. Crim. App. 1994).
The Alabama Supreme Court reversed and remanded, holding that the
admission of DNA evidence, without laying a proper foundation indicating that the
testing laboratory performed generally accepted techniques, was error. Ex parte
Hutcherson, 677 So. 2d 1205 (Ala. 1996). Upon remand, Hutcherson entered a plea
of guilty to capital murder, and, upon recommendation of the jury, the circuit court
again sentenced him to death. The appellate court affirmed. Hutcherson v. State,
727 So. 2d 846 (Ala. Crim. App. 1997). The Alabama Supreme Court affirmed, Ex
parte Hutcherson, 727 So. 2d 861 (Ala. 1998), and the United States Supreme
Court denied certiorari review. Hutcherson v. Alabama, 527 U.S. 1024, 119 S. Ct.
2371 (1999).
Subsequently, Hutcherson filed a post-conviction petition pursuant to Rule
32, Ala. R. Crim. P. in the circuit court. The State filed a petition for writ of
mandamus, directing the Alabama Supreme Court to order the circuit court to
dismiss Hutcherson’s petition on jurisdictional grounds. The Alabama Supreme
Court granted the mandamus petition. Ex parte Hutcherson, 847 So. 2d 386 (Ala.
2002). The circuit court denied the Rule 32 petition as untimely, and that
adjudication was affirmed by both levels of Alabama appellate courts. See
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Hutcherson v. State, 886 So. 2d 181 (Ala. Crim. App. 2003); Ex parte Hutcherson,
887 So. 2d 212 (Ala. 2004). Hutcherson filed a successive Rule 32 petition,
arguing that the Alabama Death Penalty System is infirm because there is no
provision for automatic appointment of counsel after direct appeals are exhausted,
and because there is no provision for formal training of counsel in the intricacies of
collateral proceedings in the state and federal systems. The circuit court dismissed
this Rule 32 petition as time-barred and otherwise lacking merit. Hutcherson, who
was represented by counsel in each of these Rule 32 proceedings, did not appeal.
Shortly before he filed his successive Rule 32 petition, Hutcherson filed a
petition for writ of habeas corpus in federal district court pursuant to 28 U.S.C. §
2254. The claims Hutcherson raised in his federal habeas petition almost mirrored
the claims raised in his second Rule 32 petition. In particular, Hutcherson
contended that the Alabama Death Penalty Statute was unconstitutional because it
did not provide for appointment of counsel for Rule 32 proceedings, did not train
counsel in matters of federal collateral relief, and did not make sufficient funds
available for retention of forensic, psychiatric and mitigation experts in post-
conviction proceedings. On December 8, 2005, the district court entered an order
dismissing Hutcherson’s 28 U.S.C. § 2254 petition as untimely because the petition
had not been filed within the one-year limitations period provided by the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28 U.S.C. §
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2244(d)(1), and finding that Hutcherson had failed to make any showing that might
warrant equitable tolling. On appeal, this court denied Hutcherson’s request for a
Certificate of Appealability (“COA”). Hutcherson sought no further appellate
review.
On June 27, 2006, defendant Attorney General Troy King filed a Motion to
Set an Execution Date in the Alabama Supreme Court. The State served
Hutcherson and his present counsel with notice of this motion. Hutcherson did not
file any legal action or challenge to the State’s motion. Attorney General King
renewed his request for the setting of an execution date, as the court had taken no
action in response to his earlier request. On September 25, 2006, the Alabama
Supreme Court responded to the State’s request and set October 26, 2006, as the
date for Hutcherson’s execution.
After having knowledge of the State’s request of an execution date for over
three months, Hutcherson, 14 days before his scheduled execution, filed a
complaint in the federal district court pursuant to 42 U.S.C. § 1983 seeking
injunctive relief. This action raised no new claims for relief, but instead, reiterated
Hutcherson’s arguments from his failed, untimely § 2254 petition and his
successive Rule 32 petition. In particular, Hutcherson asserted that the Alabama
Death Penalty Statute is constitutionally deficient in the following respects: “it fails
to assure that properly trained counsel will be provided to indigent defendants” at
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trial, appellate and post-conviction stages; it fails to provide Hutcherson with
representation as a matter of right in his Rule 32 actions; it caps compensation for
Hutcherson’s Rule 32 counsel at $1,000, and there is no provision for hiring experts
or investigators; certain “esoteric peculiarities” in the Alabama post-conviction
system create traps for unwary, untrained counsel; after a death sentence is affirmed
on direct appeal, “it provides no meaningful mechanism for seeking . . . a stay of the
judgment pending a filing with the United States Supreme Court;” it does not toll
the time for filing a Rule 32 petition during the time in which a petition for writ of
certiorari could have been filed with the United States Supreme Court, leading to
“confusion” in the filing of a Rule 32 petition; and it does not meet the minimum
standards articulated in Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527 (2003).
Based on these allegations, Hutcherson requested the district court find that his
constitutional rights had been violated, strike down the Alabama Death Penalty
Statute as unconstitutional, enjoin his execution, and enjoin the State from
proceeding against Hutcherson pending appointment of Wiggins-compliant counsel.
The district court found that Hutcherson’s complaint, unlike the petitioners
complaints in Hill v. McDonough, ___ U.S. ___, 126 S. Ct. 2096 (2006), and
Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117 (2004), did not challenge a
specific method of execution, nor pose claims that could reasonably be
characterized as an attack on the conditions of his confinement. Instead, the district
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court found that Hutcherson’s complaint was a broad-based attack on the structure
and safeguards of the Alabama Death Penalty System. The district court found that
this argument, if successful, would tend to undermine the validity of Hutcherson’s
conviction and sentence, rather than the conditions of confinement or the specific
manner of his execution. Accordingly, the district court determined that
Hutcherson’s complaint falls squarely within the core of habeas corpus and, as
such, is not cognizable under §1983.
The district court also denied Hutcherson’s request for an injunction or stay
of his execution because there is no meaningful likelihood that Hutcherson can
succeed on the merits, and there is a strong presumption against granting 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. The district court noted that
Hutcherson’s arguments in his § 1983 complaint are not new. These same
contentions were the moving force behind Hutcherson’s second Rule 32 petition
filed in November 2004 and his § 2254 petition filed in August 2004. Thus,
Hutcherson was fully aware of the factual and legal bases for his claims in the
present action for more than two years before he filed suit. Accordingly, the district
court found that these facts indicated that Hutcherson had been dilatory in pursuing
his claims, and this equitable ground formed a separate basis for the denial of
injunctive relief sought in Hutcherson’s § 1983 complaint.
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Hutcherson appealed the district court’s denial of his § 1983 action to this
court on October 20, 2006. We granted an expedited briefing schedule for the
parties because of Hutcherson’s pending execution date.
II. DISCUSSION
An inmate convicted and sentenced under state law may seek federal relief
under two primary avenues: “a petition for habeas corpus, 28 U.S.C. § 2254, and a
complaint under the Civil Rights Act of 1871, Rev. Stat. § 1979, as amended, 42
U.S.C. § 1983.” Hill, 126 S. Ct. at 2101. These avenues are mutually exclusive: if
a claim can be raised in a federal habeas petition, that same claim cannot be raised
in a separate § 1983 civil rights action. See Nelson, 541 U.S. at 643, 124 S. Ct. at
2122 (“[Section] 1983 must yield to the more specific federal habeas statute, with
its attendant procedural and exhaustion requirements, where an inmate seeks
injunctive relief challenging the fact of his conviction or the duration of his
sentence.”).
The line of demarcation between a § 1983 civil rights action and a § 2254
habeas claim is based on the effect of the claim on the inmate’s conviction and/or
sentence. When an inmate challenges the “circumstances of his confinement” but
not the validity of his conviction and/or sentence, then the claim is properly raised
in a civil rights action under § 1983. Hill, 126 S. Ct. at 2101. However, when an
inmate raises any challenge to the “lawfulness of confinement or [the] particulars
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affecting its duration,” his claim falls solely within “the province of habeas corpus”
under § 2254. Id. Simply put, if the relief sought by the inmate would either
invalidate his conviction or sentence or change the nature or duration of his
sentence, the inmate’s claim must be raised in a § 2254 habeas petition, not a §
1983 civil rights action. If the court determines that the claim does challenge the
lawfulness of the inmate’s conviction or sentence, then the court must treat the
inmate’s claim as raised under § 2254, and it must apply the AEDPA’s attendant
procedural and exhaustion requirements to the claim. See Nelson, 541 U.S. at 643,
124 S. Ct. at 2122.
On appeal, Hutcherson frames his issue for review as: “The failure, in capital
cases, of the State of Alabama to provide for representation in the manner set out in
the American Bar Association Guidelines for the appointment and performance of
counsel in death penalty cases constitutes a denial of Larry Hutcherson’s rights to
counsel as envisioned in the Sixth Amendment to the United States Constitution
and Due Process of Law as envisioned in the Fifth and Fourteenth Amendments to
the United States Constitution and is actionable under 42 United States Code §
1983.” This claim, although restated, is in essence the same claim Hutcherson
raised in his first federal habeas petition. The claim attacks the validity of
Hutcherson’s conviction and sentence, not the “circumstances of his confinement.”
Hutcherson effectively asks the court to vacate his conviction and/or sentence on
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constitutional grounds (ineffective assistance of counsel), provide him a new trial or
second round of collateral appeals, and prevent the State from re-trying him until
the Alabama Legislature adopts the ABA Guidelines for Counsel in Death Penalty
Cases as binding in Alabama. Thus, a fair reading of Hutcherson’s claim
establishes that his claim is a habeas claim and not a civil rights claim under § 1983.
Because Hutcherson’s § 1983 complaint is the functional equivalent of a
habeas corpus petition, we consider whether Hutcherson can satisfy the procedural
and exhaustion requirements set forth in AEDPA. Hutcherson fails to satisfy the
requirements under 28 U.S.C. § 2244(b). See Court’s Order denying Motion for
Leave to File a Successive Habeas Petition entered on Oct. 24, 2006 (Appeal No.
06-15544).
Furthermore, we deny Hutcherson’s motion for a stay of his execution
pending appeal because Hutcherson cannot obtain relief on his § 1983 claim that is
the functional equivalent of a habeas claim. Moreover, Hutcherson is not entitled to
a stay based on the equities of his case. Hutcherson has waited until the eve of his
execution to request relief in the form of an injunction or motion to stay.
Hutcherson had knowledge of his pending execution date four months ago.
Hutcherson’s requested stay of execution is directly attributable to his own failure
to bring his claims to court in a timely fashion. Since Hutcherson previously
litigated the very claim he asserts on appeal of his § 1983 complaint, there is no
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reasonable basis for his decision to wait ten months after the dismissal of his first
habeas corpus petition to re-style his claim as a § 1983 action. Accordingly,
Hutcherson is not entitled to the equitable remedy of a stay of execution.
AFFIRMED; MOTION FOR STAY OF EXECUTION DENIED.
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