Sedley Alley v. George Little, in His Official Capacity as Tennessee's Commissioner of Corrections

RONALD LEE GILMAN, Circuit Judge,

with whom R. GUY COLE, JR., Circuit Judge, joins, dissenting from the denial of rehearing en banc.

The panel affirms the district court’s dismissal of Alley’s challenge to the lethal injection protocol. In so doing, it revisits its reasons for vacating the preliminary injunction and the stay of execution. Two primary reasons are articulated in support the panel’s analysis: (1) Alley unnecessarily delayed his challenge, and (2) there is a small likelihood of success on the merits. Because I believe that the panel improperly weighed these two factors, I favor rehearing en banc.

First, Alley argues that he did not unduly delay in bringing his challenge to the lethal injection protocol. The propriety of *627his delay cannot even he assessed, he contends, until we determine when his claim first could have been filed. This requires an Article III ripeness analysis, which the panel failed to perform.

The panel relies on the fact that Alley was originally scheduled for execution in 2004 and that he failed to bring his challenge then, thus evincing undue delay. It is true that the Tennessee Supreme Court on January 14, 2004 set an execution date of June 3, 2004. This date was not altered until May 19, 2004, when the district court stayed the matter for a determination of whether Alley’s Rule 60(b) motion constituted a habeas petition. The panel says that Alley should have challenged the lethal injection protocol during this four-month period prior to the stay.

But in order to have a ripe claim regarding the lethal injection protocol, Alley argues, two events must have taken place: (1) the execution date must be set, and (2) the warden must have presented Alley with the choice of the method of execution, and Alley must have made the choice of lethal injection (as opposed to electrocution, the other method available in Tennessee). In 2004, Alley argues that only the first of these events came to pass. I find nothing in the record that contradicts Alley’s claim. Without having been presented with this choice and without having elected lethal injection, any suit brought in the four-month period prior to the stay challenging the lethal injection protocol would have been thrown out on ripeness grounds. This being the case, I believe the panel unjustly faulted Alley for failing to file his challenge sooner.

Turning to Alley’s argument as to the likelihood of success on the merits, I agree with the panel that current law does not compel the conclusion that Tennessee’s lethal injection protocol is unconstitutional. At the same time, however, there is an affidavit from an expert in this case demonstrating that the lethal cocktail that is to be administered to Alley is insufficient to completely anesthetize him, producing a “reasonably high chance of suffering a cruel and inhumane death.” This evidence makes success on the merits at least a possibility — albeit not a foregone conclusion — and not “as speculative as any other claim about possible future changes in governing law,” as the panel concluded.

In light of the panel’s (1) failure to address the Article III ripeness concerns present in Alley’s case, and (2) failure to properly weight the expert’s affidavit as to Alley’s likelihood of success on the merits, I would grant rehearing en banc.