Ex parte Kenneth Eugene Smith. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Kenneth Eugene Smith v. State of Alabama) (Jefferson Circuit Court: CC-89-1149.61 Criminal Appeals: CR-2023-0594).

Rel: January 12, 2024

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2023-2024

_________________________

SC-2023-0934
_________________________

Ex parte Kenneth Eugene Smith

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS

(In re: Kenneth Eugene Smith

v.

State of Alabama)

(Jefferson Circuit Court: CC-89-1149.61;
Court of Criminal Appeals: CR-2023-0594)

SHAW, Justice.

WRIT DENIED. NO OPINION.
SC-2023-0934

Parker, C.J., and Bryan, Sellers, Mendheim, Stewart, and Mitchell,

JJ., concur.

Cook, J., concurs specially, with opinion.

Wise, J., recuses herself.

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COOK, Justice (concurring specially).

I concur with denying Kenneth Eugene Smith's petition for a writ

of certiorari. I write specially to explain (1) why I initially dissented when

the State of Alabama asked this Court to set a second execution date to

carry out Smith's death sentence and (2) why I now believe that Smith

has failed to show that he is entitled to certiorari relief.

Smith was originally convicted of capital murder and sentenced to

death in 1989, but that conviction was reversed on appeal, and a new

trial was ordered. See Smith v. State, 588 So. 2d 561 (Ala. Crim. App.

1991), on return to remand, 620 So. 2d 727 (Ala. Crim. App. 1992), on

return to second remand, 620 So. 2d 732 (Ala. Crim. App. 1992).

Following his new trial in 1996, Smith was again convicted of capital

murder and sentenced to death. The Court of Criminal Appeals affirmed

Smith's conviction and sentence. See Smith v. State, 908 So. 2d 273 (Ala.

Crim. App. 2000), cert. quashed, 908 So. 2d 302 (Ala. 2005).

In 2006, Smith filed his first petition for postconviction relief

pursuant to Rule 32, Ala. R. Crim. P., which was denied by the Jefferson

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Circuit Court. 1 The judgment denying that Rule 32 petition was later

affirmed by the Court of Criminal Appeals. See Smith v. State, 160 So.

3d 40, 55 (Ala. Crim. App. 2010).

On June 24, 2022, the State filed a motion to set Smith's execution

date. This Court granted that motion on September 30, 2022, setting

Smith's execution for November 17, 2022.

During that time, Smith raised and litigated in federal court a

method-of-execution challenge to Alabama's use of lethal injection. After

considering Smith's challenge, the United States Supreme Court

concluded that Smith's execution should go forward on November 17,

2022. However, on that date, the execution could not proceed because the

Alabama Department of Corrections was unable to set intravenous lines

for the lethal injection.

After that occurred, Smith filed a challenge to Alabama's continued

use of lethal injection for his method of execution in the United States

District Court for the Middle District of Alabama. As part of his prayer

1Smith also sought relief in federal court, which was likewise
denied. Smith v. Commissioner, Alabama Dep't of Corr., 850 F. App'x 726
(11th Cir. 2021).

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for relief in that case, Smith sought execution by means of nitrogen

hypoxia, as authorized under Alabama law. See § 15-18-82.1, Ala. Code

1975. The State ultimately agreed that it would use the nitrogen-hypoxia

method for Smith's execution and that it would not attempt to execute

him again by lethal injection.

In May 2023, Smith filed a second Rule 32 petition in the circuit

court in which he alleged that a second attempt to execute him, by any

means, would constitute cruel and unusual punishment in violation of

the United States and Alabama Constitutions. Smith further alleged that

he could not have raised this argument in his direct appeal or in his

previously filed Rule 32 petition because, he said, the circumstances

supporting such an argument had not occurred. The circuit court issued

an order dismissing that petition, which Smith appealed to the Court of

Criminal Appeals.

While that appeal was pending before the Court of Criminal

Appeals, the State asked this Court to set a second execution date for

Smith. That request was granted on November 1, 2023. Because I

believed that, before setting Smith's second execution date, the Court of

Criminal Appeals -- and, perhaps, this Court -- should have the

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opportunity to decide whether there was any legal basis for Smith's new

argument that a second execution attempt would constitute cruel and

unusual punishment, I dissented to the issuance of Smith's death

warrant at that point.2

Less than a month after this Court granted the State's request, the

Court of Criminal Appeals issued an opinion unanimously affirming the

2In particular, I believed that our courts should have had the
opportunity to consider whether there was any authority that would bear
on the original public meaning of the Eighth Amendment's text regarding
"cruel and unusual" punishment as applied to a second execution
attempt, including any historical evidence bearing on such original public
meaning. See Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 33 (Thomson/West 2012) (explaining that a
court should consider "how a reasonable reader, fully competent in the
language, would have understood the text at the time it was issued"); Jay
Mitchell, Textualism in Alabama, 74 Ala. L. Rev. 1089, 1092 (2023)
(explaining that "the meaning of a law is its original public meaning");
see also New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1, 15-17,
19 (2022) (explaining that the framework for analyzing a constitutional
challenge includes "text, as informed by history"); id. at 79 (Kavanaugh,
J., concurring) (summarizing the majority opinion's framework as "text,
history and tradition"). For instance, I was aware that there were some
commentators who had argued that there was scattered historical
evidence indicating that if a defendant survived an execution attempt,
there might be a choice not to attempt a second execution. See, e.g., Sara
McDougall & David Perry, In the Middle Ages, Botched Executions Were
a Sign, Slate, Dec. 4, 2022 (at the time of this decision, a copy of this
article could be located at: https://slate.com/news-and-
politics/2022/12/alabama-executions-kenneth-eugene-smith-history-
capital-punishment.html).
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circuit court's dismissal of Smith's second Rule 32 petition after

concluding that his petition was meritless and was insufficiently pleaded.

See Smith v. State, [Ms. CR-2023-0594, Dec. 8, 2023] ___ So. 3d ___ (Ala.

Crim. App. 2023). In support of its decision, the Court of Criminal

Appeals heavily relied on a factually similar case, State v. Broom, 146

Ohio St. 3d 60, 51 N.E.3d 620 (2016), in which the Supreme Court of Ohio

rejected a defendant's challenge under the Eighth Amendment and

Ohio's constitutional prohibition on cruel and unusual punishment to a

second execution attempt after the first had failed because intravenous

lines could not be established.

After his application for rehearing was overruled, Smith, on

December 18, 2023, filed the instant petition seeking certiorari review of

the Court of Criminal Appeals' decision.

In his petition, Smith alleges, pursuant to Rule 39(a)(1)(D), Ala. R.

App. P., that a conflict exists between the Court of Criminal Appeals'

decision and decisions from the United States Supreme Court. He also

alleges, pursuant to Rule 39(a)(1)(C), Ala. R. App. P., that a material

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question of first impression exists in this case.3 As explained below, I do

not believe that Smith has adequately demonstrated that he is entitled

to relief under either of those grounds and, thus, concur with denying his

petition.

First, Smith alleges that the Court of Criminal Appeals' decision

"directly conflicts with multiple precedents governing … the scope of the

Eighth Amendment's prohibition on cruel and unusual punishment."

Petition at 3 (citing Rule 39(a)(1)(D), Ala. R. App. P.). Specifically, he

alleges:

"[T]he Court of Criminal Appeals' opinion failed to
acknowledge, much less apply, the correct legal test to Mr.
Smith's Eighth Amendment claim: that a State's successive
attempt to execute a condemned person after 'a series of
abortive attempts or even a single, cruelly willful attempt' is
prohibited. La. ex rel. Francis v. Resweber, 329 U.S. 459, 471
(1947) (Frankfurter, J., concurring); Baze v. Rees, 553 U.S. 35,

3Nowhere in his petition does Smith overtly mention the Court of

Criminal Appeals' reliance on State v. Broom, 146 Ohio St. 3d 60, 51
N.E.3d 620 (2016). However, he does allege in a footnote that the Court
of Criminal Appeals' reliance on "a decision from the Ohio Supreme
Court" was erroneous because, he says, the Supreme Court of Ohio failed
to use the "correct test" in reaching its holding in that case. Petition at 7
n.2. In making this argument, however, Smith does not allege any
grounds for certiorari review or otherwise explain how the Court of
Criminal Appeals' reliance on Broom was improper. I therefore see no
reason to consider Smith's brief argument on this point as a basis for
determining whether he is entitled to certiorari relief.
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50 (2008) (plurality op.)."

Petition at 4.

Although Smith alleges that the Court of Criminal Appeals'

decision conflicts with "multiple precedents," he cites only (1) Justice

Frankfurter's concurring opinion in Louisiana ex rel. Francis v.

Resweber, 329 U.S. 459 (1947), and (2) a plurality opinion in Baze v. Rees,

553 U.S. 35 (2008), in support of his conflict ground. (Emphasis added.)

Neither a lone concurring opinion nor a plurality opinion of the United

States Supreme Court constitutes a "prior decision" for purposes of the

conflict ground under Rule 39(a)(1)(D), Ala. R. App. P. See Ex parte

Dearman, 322 So. 3d 5, 6 n.1 (Ala. 2020) (noting that, a plurality decision

"is not a 'prior decision[]' of the Court of Civil Appeals for purposes of

Rule 39(A)(1)(D), Ala. R. App. P."); Ex parte Ball, 323 So. 3d 1187, 1188

(Ala. 2020) (Parker, C.J., concurring specially) (noting that "by allowing

certiorari review of decisions that conflict with a 'prior decision' of an

appellate court, Rule 39(a)(1)(D) provides a vehicle for this Court to

ensure that the courts of appeals decide cases consistently with

controlling precedent and for this Court to resolve inconsistencies

between binding precedents of the courts of appeals. Therefore, a 'prior

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decision' is necessarily a prior case that constitutes binding precedent on

a relevant point."); Peraita v. State, [Ms. CR-17-1025, Aug. 6, 2021] ___

So. 3d ___, ___ n.6 (Ala. Crim. App. 2021) (noting that "plurality opinions

… are not binding 'prior decisions' "). Because Smith has failed to

properly allege that the Court of Criminal Appeals' decision conflicts with

actual "prior decisions of the Supreme Court of the United States" as

required by Rule 39(a)(1)(D), I concur with denying his petition on his

asserted conflict ground.

Even if the portions of Justice Frankfurter's special concurrence in

Resweber and the Supreme Court's plurality opinion in Baze on which

Smith relies qualified as "prior decisions of the Supreme Court of the

United States" for the purposes of Rule 39(a)(1)(D), Smith's allegation

that they "directly conflict[]" with the Court of Criminal Appeals' decision

is wrong. (Emphasis added.) For example, in Resweber, the United States

Supreme Court examined whether the use of the same method of

execution for a second time following an initial failed execution attempt

constituted cruel and unusual punishment in violation of the Eighth

Amendment. In Baze, the United States Supreme Court examined

whether a particular lethal-injection protocol was unconstitutional under

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the Eighth Amendment. In both cases, the United States Supreme Court

concluded that the challenged actions did not violate the Eighth

Amendment's prohibition against cruel and unusual punishment. See

Resweber, 329 U.S. at 463-64 (holding that a second attempt at execution

was not cruel and unusual punishment); Baze, 553 U.S. at 41 (holding

that a particular lethal-injection protocol was not unconstitutional).

Here, Smith does not challenge the new method of execution.

Instead, he alleges that an attempt to execute him for a second time by a

different method of execution would constitute cruel and unusual

punishment under the Eighth Amendment. As stated previously, the

Court of Criminal Appeals concluded that a second execution attempt

under such circumstances would not constitute cruel and unusual

punishment in violation of the United States and Alabama Constitutions

-- a conclusion that is not contradicted by the Supreme Court's rulings in

Resweber and Baze.

This Court will grant certiorari review only if we conclude "that

there is probability of merit in the petition." Rule 39(f), Ala. R. App. P.

Because the Court of Criminal Appeals' decision does not appear to be

contradicted by Resweber and Baze, this is a second reason not to grant

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Smith's petition on his asserted conflict ground.

Second, at the very end of his petition, Smith also alleges, pursuant

to Rule 39(a)(1)(C), Ala. R. App. P., that a material question of first

impression exists as to whether his execution is barred by Article I, § 15,

of the Alabama Constitution. That provision provides that "excessive

fines shall not be imposed, nor cruel or unusual punishment inflicted."

After quoting a portion of § 15, Smith alleges in a single paragraph:

"[W]hether Article I, Section 15 of the Alabama Constitution
also prohibits a second execution attempt in the
circumstances alleged here is one of first impression.
Accordingly, this Court should grant the writ of certiorari to
address that question of first impression, which implicates a
foundational right to be free from cruel and unusual
punishment at the hands of the State."

Petition at 15.

Smith cites no Alabama caselaw to support this argument, and he

cites no authority on the original public meaning of this provision of our

Constitution. Smith fails to explain why the Alabama Constitution

would prohibit his execution in this case, whether the slightly differing

language employed in the United States and Alabama Constitutions

would change the analysis of the challenge he is raising, or how this

constitutional provision should be applied differently from the Eighth

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Amendment. In fact, other than quoting Article I, § 15, of the Alabama

Constitution, he makes no attempt at all to discuss this Alabama

constitutional provision. By failing to do so, Smith has not demonstrated

any probability of merit as to this claim under Rule 39(a)(1)(C). It is for

this additional reason that I concur with denying his petition.

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