Hamilton v. Jones

                                                                   F I L E D
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                                    PUBLISH
                                                                   January 4, 2007
                  UNITED STATES CO URT O F APPEALS             Elisabeth A. Shumaker
                                                                   Clerk of Court
                               TENTH CIRCUIT



 C OREY D U A NE H A MILTO N ,

             Plaintiff-Appellant,

 v.                                                  No. 06-6381

 JUSTIN JONES, Director, Oklahoma
 Department of Corrections; M AR TY
 SIRM ONS, W arden, Oklahoma State
 Penitentiary; W . M AR K LU TTRULL,
 R OBER T L. R AIN EY , EA RN EST D.
 W AR E, DA VID C . HEN NEK E,
 TED LO GA N , B EV ER LY Y O UNG,
 and ERNEST GODLOVE, Oklahoma
 Board of Corrections; JOHN DOES,
 Unknown Executioners,

             Defendants-Appellees.



        A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
            FO R TH E W ESTERN DISTRICT O F O K LAH O M A
                        (D.C. No. 06-CV -1193-F)


Robert R. Nigh, Jr. of Brewster & DeAngelis, P.L.L.C., Tulsa, Oklahoma, for
Plaintiff-A ppellant.

Jennifer J. Dickson, Assistant Attorney General (W .A. Drew Edmondson,
Attorney General of Oklahoma, with her on the brief), Oklahoma City, Oklahoma,
for Defendants-Appellees.


Before TA CH A, Chief Judge, O’BRIEN, and TYM KOVICH, Circuit Judges.
PE R C U RIA M .




      The State of Oklahoma has scheduled plaintiff Corey Duane Hamilton for

execution by lethal injection on January 9, 2007. Hamilton’s first-degree murder

conviction and death sentence were affirmed on direct appeal, Hamilton v. State,

937 P.2d 1001 (O kla. Crim. App. 1997), cert. denied, 522 U.S. 1059 (1998), and

have withstood federal constitutional challenge in federal habeas proceedings,

Hamilton v. M ullin, 436 F.3d 1181 (10th Cir.), cert. denied, 127 S. Ct. 560

(2006). On October 27, 2006, he commenced this action under 42 U.S.C. § 1983

to challenge the lethal injection protocol to be used for his execution. After an

evidentiary hearing on December 28, 2006, the district court denied H amilton’s

request for a preliminary injunction to forestall his execution under the protocol.

Hamilton then filed this appeal and, in association therewith, moved for a stay of

his execution. W e exercise jurisdiction under 28 U.S.C. § 1292(a)(1), affirm the

denial of injunctive relief, and deny the motion for stay. 1

      W e review the district court’s order for an abuse of discretion. Bowersox v.

W illiam s, 517 U.S. 345, 346 (1996) (reviewing order involving stay of execution);

Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1299 (10th Cir. 2006) (reviewing


1
       Pursuant to Fed. R. App. P. 35, the panel circulated this opinion to the
active judges of the court for sua sponte consideration of whether en banc review
was necessary. No active judge called for a poll.

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denial of preliminary injunction). “[L]ike other stay applicants, inmates seeking

time to challenge the manner in w hich the State plans to execute them must

satisfy all of the requirements for a stay, including a showing of a significant

possibility of success on the merits.” Hill v. M cDonough, 126 S. Ct. 2096, 2104

(2006). The inmate must, in addition, satisfy a temporal concern of unique

significance in this context: “A court considering a stay [of execution] must also

apply ‘a strong equitable presumption against the grant of 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.’” Id. (quoting Nelson v. Campbell, 541 U.S.

637, 650 (2004)). Here, the district court denied relief based both on Hamilton’s

delay in bringing his constitutional challenge to the lethal-injection protocol and

on his failure to demonstrate a likelihood of success on the merits of that

challenge. W e cannot say the district court abused its discretion in either respect.

      Hamilton unreasonably delayed in two ways. First, despite knowing that he

faced death by lethal injection and being aware of legal challenges to various

lethal-injection protocols, he waited years to pursue any state administrative

remedy in this regard. 2 Second, after exhausting that remedy in M ay 2006, he

waited five more months to file this action. This court has taken a strict stance on




2
      Counsel conceded at argument that there is no legal impediment under state
law to pursuit of lethal-injection challenges prior to the setting of an execution
date. See, e.g., M alicoat v. State, 137 P.3d 1234, 1235 (O kla. Crim. App. 2006).

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inmate delay in this context and has, in fact, invoked the presumption recognized

in Nelson and Hill in similar circumstances where only the first type of delay

noted here was evident, see Patton v. Jones, 193 F. App’x 785, 788-89 (10th Cir.)

(unpub.), cert. denied, 127 S. Ct. 28 (2006). W hile we are not bound by the

unpublished panel decision in Patton, we see no reason to diverge from its

substance here. Hamilton contends that his delay was reasonable in that he did

not feel capable of pursuing this matter until he secured present counsel to initiate

it, but the district court did not abuse its discretion in concluding that this

explanation was inadequate. Nothing prevented Hamilton from timely initiating

an action pro se and asking the court to appoint counsel to assist him, and review

of the administrative grievance he submitted suggests no reason to doubt his

ability to accomplish this.

      Turning to the merits, the Constitution does not require the use of execution

procedures that may be medically optimal in other contexts. Rather, the

controlling standard is that such procedures “not involve the unnecessary and

wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976).

Oklahoma’s lethal-injection protocol provides in pertinent part that (1) bilateral

intravenous fluid drips (“IVs”) w ill be established in the veins of the inmate’s

arms by “an EM T-P or person with similar qualifications and expertise in IV




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insertion,” 3 (2) the EM T-P “will ensure the patency [of the IV] until the time of

execution by slow infusion of normal saline or dextrose,” (3) the drugs are then

introduced bilaterally, starting with 1200 mg doses of sodium thiopental, an

ultra-fast-acting barbituate, to anesthetize the inmate and render him unconscious,

followed two and one-half minutes later by 20 mg doses of vecuronium bromide

to induce paralysis, and then 100 mg doses of potassium chloride to stop the heart

and cause death; and (4) if only one IV can be established and confirmed as

patent, both doses of each drug are administered serially through that IV.

R. doc. 1, Ex. 2 at 3-4. In Patton, this court concluded based on expert testimony

that has been incorporated in the record for this case “that [the plaintiff] has

failed to establish a significant possibility of success on the merits of his Eighth

Amendment claims” and, consequently, that he could not “overcome the

presumption created by [his] late filing of his § 1983 action.” Patton, 193 F.

App’x at 790 (quotation omitted). Again, we see no reason to diverge from the

result in that case here.

      The district court concluded that the expert testimony presented simply

could not demonstrate a risk of harm of constitutional magnitude; in particular,

that testimony did not effectively challenge the protocol elements outlined above.




3
      In the event IV access cannot be established in the veins of the arms, a
physician is present who will gain access through a central line, i.e., an artery
elsewhere in the body such as the leg.

                                         -5-
The primary criticism voiced by the experts concerned the absence of any

provision for monitoring the inmate for signs that the sodium thiopental is in fact

reaching him and effecting anesthetization. In light of the precautions already

built into the protocol, the district court concluded that the risk of failure that this

kind of monitoring would address was simply far too remote to rise to a

constitutional level so as to require that it be done in connection with executions.

Thus, while monitoring of anesthetization level is the optimal practice appropriate

for a surgical operating room (where, significantly, low er doses of anesthetic are

used in order to minimize post-surgical “emergence” complications that have no

counterpart in the execution setting), the risk inherent in the lethal-injection

procedure under review is already so attenuated that we cannot say there is a

significant likelihood that a challenge to the protocol under the minimal

requirements imposed by the Eighth Amendment on executions could succeed on

our record.

      The additional evidence adduced by Hamilton at the December 28 hearing

does not undermine that conclusion. The focus of the new evidence was a recent

execution in Florida that, by credible accounts, was botched because the needles

used for the IV s had been pushed completely through the inmate’s veins. See

generally Fla. Exec. Order No. 06-260 (halting further executions and creating

comm ission to study state lethal-injection protocol following execution of Angel

Nieves Diaz on December 13, 2006). The district court properly discounted the

                                           -6-
present materiality of that unfortunate incident, noting that the Florida protocol

made no provision for the qualifications of the person(s) responsible for

establishing and confirming the patency of the IV, while the Oklahoma protocol

places this responsibility in the hands of an EM T-P, a professional expressly

recognized as fully qualified for this purpose by the experts in this case. In short,

the risk exposed by the Florida tragedy is a risk that Oklahoma, unlike Florida,

has specifically addressed in its protocol.

      In sum, Hamilton has not overcome the strong presumption applicable here

against interference with the State’s recognized interest in timely carrying out the

final judgment rendered in his criminal prosecution, nor has he shown a

substantial likelihood of prevailing on the merits of his constitutional challenge to

the lethal-injection procedure to be followed in his execution. Accordingly, the

district court did not abuse its discretion in denying injunctive relief, and we find

no basis for staying Hamilton’s execution.

      Hamilton’s request for oral argument is GRANTED, the district court’s

order denying Hamilton’s motion for a preliminary injunction is AFFIRM ED, and

Hamilton’s motion for stay of execution is D ENIED. The motion to file certain

portions of the record under seal is GRANTED. Hamilton’s motion for leave to

proceed in forma pauperis is G RANTED.




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