Arthur D. Rutherford v. James v. Crosby, Jr.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 30, 2006
No. 06-10783 THOMAS K. KAHN
CLERK

ARTHUR D. RUTHERFORD,

Plaintiff-Appellant,

versus

JAMES V. CROSBY, JR.,
CHARLIE CRIST,

Defendants-Appellees.

--------------------------
Appeal from the United States District Court for the
Northern District of Florida
--------------------------

(January 30, 2006)

Before CARNES, HULL and WILSON, Circuit Judges.

PER CURIAM:

This is the appeal of Arthur Dennis Rutherford, a Florida death row inmate,

from the judgment of the district court dismissing his 42 U.S.C. § 1983 action

challenging the details of that state’s lethal injection procedures. (A copy of the

district court’s order is attached as an appendix to this opinion.) The district court
stated two independently adequate grounds for dismissal.

I.

The first ground on which the district court dismissed Rutherford’s § 1983

complaint is that under our prior precedent a claim attacking the general

procedures or protocols a state uses to carry out executions by lethal injection must

be brought in a habeas corpus proceeding, and Rutherford had not obtained from

this Court an order permitting him to file a second or successive petition. See 28

U.S.C. § 2244(b). That decision of the district court is correct as a matter of circuit

law. See Hill v. Crosby, ___ F.3d ___, 2006 WL 163607 at *1 (11th Cir. Jan. 24,

2006), cert. granted, No. 05-8794, ___ U.S. ___, ___ S. Ct. ___, 2006 WL 171583

(Jan. 25, 2006) No. 05-8794; Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir.

2004).

Of course, circuit law certainly can be changed by a decision of the Supreme

Court. See Davis v. Singletary, 119 F.3d 1471, 1482 (11th Cir. 1997); Cottrell v.

Caldwell, 85 F.3d 1480, 1485 (11th Cir. 1996); Footman v. Singletary, 978 F.2d

1207, 1211 (11th Cir. 1992). A grant of certiorari, however, is not a decision and

does not affect our obligation, or the obligation of district courts in this circuit, to

follow prior decisions of this Court. See Robinson, 358 F.3d at 1284 (“[T]he grant

of certiorari alone is not enough to change the law of this circuit or to justify this

2
Court in granting a stay of execution on the possibility that the Supreme Court may

overturn circuit law.”); Ritter v. Thigpen, 828 F.2d 662, 665–66 (11th Cir. 1987)

(“A grant of certiorari does not constitute new law.”); Mulligan v. Kemp, 818 F.2d

746, 747–48 (11th Cir. 1987) (the grant of certiorari does not constitute a “decided

case upon which to pass a new law claim”); Thomas v. Wainwright, 788 F.2d 684,

689 (11th Cir. 1986) (“any implications to be drawn [from a grant of certiorari in

another case] may be discerned by application to the Supreme Court.”) (citation

omitted); Jones v. Smith, 786 F.2d 1011, 1012 (11th Cir. 1986) (same); Bowden v.

Kemp, 774 F.2d 1494, 1495 (11th Cir. 1985) (same). The district court was correct

to dismiss the § 1983 complaint in this case on the basis of our decisions in the Hill

and Robinson cases. As required by our prior panel precedent rule, we affirm the

district court’s dismissal on that basis.

II.

The district court also dismissed the complaint on the alternative basis that

even if Rutherford’s complaint states a cognizable claim under § 1983, he had

delayed unnecessarily in bringing his claim about Florida’s lethal injection

procedures and thus was not entitled to injunctive relief in a last-minute § 1983

action.1 We review the dismissal on that basis only for an abuse of discretion. See

1
In the Hill case the district court and this Court treated Hill’s § 1983 complaint solely as
the functional equivalent of a successive habeas petition and dismissed it. Hill v. Crosby, ___ F. 3d

3
Kidder, Peabody & Co. v. Brandt, 131 F.3d 1001, 1003 (11th Cir. 1997) (“We

review the district court's denial of injunctive relief under an abuse of discretion

standard”); Sofarelli v. Pinellas County, 931 F.2d 718, 724 (11th Cir. 1991) (“The

issuance or denial of injunctive relief [in a § 1983 lawsuit] is within the discretion

of the district court and will not be disturbed absent an abuse of discretion or action

contrary to equity.”). The standard of review is not critical, however, because we

would reach the same conclusion even on de novo review.

The district court concluded that Rutherford’s unreasonable and unexcused

delay in waiting until the eleventh hour to file the claim in a § 1983 lawsuit

disentitled him from equitable relief, which is all the relief he was seeking. The

law the district court applied in this part of its decision is discussed in Nelson v.

Campbell, 541 U.S. 637, 124 S. Ct. 2117 (2004). There, the Supreme Court

explained why its decision in that case would not “open the floodgates to all

manner of method-of-execution challenges, as well as last minute stay requests.”

See Nelson, 541 U.S. at 649, 124 S. Ct. at 2125. In that explanation, the Court

discussed its earlier decision in Gomez v. United States Dist. Court for N. Dist. of

___ (11th Cir. 2006). As discussed later, Rutherford’s case is materially different from Hill’s
because both the district court, and now this Court have determined that even if Rutherford’s
challenge to the three-chemical process in lethal injection is cognizable in a § 1983 action,
Rutherford’s request for injunctive relief in this action is properly denied on equitable grounds
because of unnecessary delay.

4
Cal., 503 U.S. 653, 112 S. Ct. 1652 (1992) (per curiam), which had vacated a stay

of execution entered by the federal appeals court in a § 1983 lawsuit challenging

the method of execution, even though the Court recognized that the claim may

have been cognizable under § 1983. The reason the Supreme Court had concluded

that the death row inmate was not entitled to a stay of execution in Gomez is that

he had “waited until the 11th hour to file his challenge despite the fact that

California’s method of execution had been in place for years.” Nelson, 541 U.S. at

649, 124 S. Ct. at 2126.

In reaching that conclusion in Gomez the Supreme Court emphasized the

State’s strong interest in proceeding with its judgment and how a court may

consider the last-minute nature of a stay application:

Whether his claim is framed as a habeas petition or as a § 1983 action,
Harris seeks an equitable remedy. Equity must take into consideration
the State’s strong interest in proceeding with its judgment and Harris’
obvious attempt at manipulation. This claim could have been brought
more than a decade ago. There is no good reason for this abusive
delay, which has been compounded by last-minute attempts to
manipulate the judicial process. A court may consider the last-minute
nature of an application to stay execution in deciding whether to grant
equitable relief.

Gomez, 503 U.S. at 653-54, 112 S. Ct. at 1653 (emphasis added) (internal citations

omitted). The Supreme Court reiterated those points in its Nelson opinion, quoting

with approval the key language from the Gomez opinion. Nelson, 541 U.S. at 649,

5
124 S. Ct. at 2126. The Court went beyond what it had said earlier and instructed

lower courts that:

A stay is an equitable remedy, and “[e]quity must take
into consideration the State’s strong interest in
proceeding with its judgment and . . . attempt[s] at
manipulation.” Thus, before granting a stay, a district
court must consider not only the likelihood of success on
the merits and the relative harms to the parties, but also
the extent to which the inmate has delayed unnecessarily
in bringing the claim. Given the State’s significant
interest in enforcing its criminal judgments, there is 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. at 649–50, 124 S. Ct. at 2126 (quoting Gomez, 503 U.S. at 654, 112 S. Ct. at

1653) (internal citations and punctuation omitted) (alterations in original).2

The Supreme Court’s teachings in Gomez and Nelson that lower courts

should apply equitable principles in this kind of § 1983 case have been heeded by a

number of courts faced with eleventh hour efforts of death row inmates to use §

2
The wisdom behind a policy of discouraging to the extent reasonably possible last-minute
filings in death sentence cases is illustrated in this case. Rutherford’s attorneys waited until 7:00
p.m. ET on Friday, January 27, 2006 to file his § 1983 complaint in the district court. The district
court ruled on it at 11:25 p.m. ET on Saturday, January 28. The notice of appeal was filed after
midnight. Rutherford’s application for a stay of execution and for an expedited appeal was not filed
in this Court until 2:00 p.m. ET on January 29. We granted the motion to expedite this morning and
at 9:05 a.m. ET the attorneys for Rutherford were notified of that fact and given until 2:00 p.m. ET
to file any supplemental briefs they wished to file on the merits. In their supplemental brief they
complain about not having more time to brief the issues which they brought to us on the Sunday
afternoon before the scheduled execution on Tuesday. That situation, of course, is a product of their
own delay in commencing this litigation.

6
1983 lawsuits to challenge lethal injection procedures and protocols. More

specifically, as the district court did here, other circuits have concluded that even if

a challenge to the three-chemical lethal injection procedure states a cognizable

claim under § 1983, the petitioner is not entitled to a stay and/or injunctive relief if

he delays until just before the scheduled execution the filing of a § 1983 action for

equitable relief. White v. Johnson, 429 F.3d 572, 573-74 (5th Cir. 2005)

(affirming the dismissal of White’s § 1983 action for injunctive relief and

emphasizing that White delayed until the eleventh hour to file his challenge to the

state’s lethal injection with the three chemicals in issue),3 petition for stay of

execution denied sub nom., White v. Livingston, __ U.S. __, 126 S.Ct. 601 (2005);

Cooper v. Rimmer, 379 F.3d 1029, 1031-33 (9th Cir. 2004) (affirming the denial

of last-minute equitable relief in § 1983 action challenging state’s three-chemical

protocol for execution by lethal injection); Harris v. Johnson, 376 F.3d 414, 416-18

(5th Cir. 2004) (concluding that petitioner was not entitled to equitable relief in §

1983 action challenging the state’s three-chemical protocol for execution by lethal

3
The Fifth Circuit in White also rejected White’s argument that because he was not
requesting just a stay but permanent injunctive relief in his § 1983 action, Nelson and Gomez
therefore did not apply. White, 429 F.3d at 573-74. We agree with the Fifth Circuit that the last-
minute rules of the Supreme Court in Nelson and Gomez “were declared by the Court in the context
of last-minute § 1983 method of execution challenges as well as last-minute stay requests. The
principles enunciated by the [Supreme] Court are equally applicable to all types of equitable relief,
including permanent injunctions, sought by inmates facing imminent execution.” Id. at 573-74
(internal citation omitted).

7
injection where he had unnecessarily delayed in bringing his claim); see also

Bieghler v. Donahue, No. 1:06-cv-00136-LJM-TAB (S.D. Ind. Jan. 26, 2006)

(relying on Nelson and denying TRO and preliminary injunction in plaintiff’s last-

minute § 1983 action challenging the state’s three-chemical method of lethal

injection and dismissing the § 1983 action), stay of execution granted, No. 06-1300

(7th Cir. Jan. 26, 2006) (unpublished order), stay of execution vacated, No.

05A684, ___ U.S. ___, ___ S. Ct. ___, 2006 WL 189970 (Jan. 27, 2006).

In each of those cited decisions the petitioner raised the same three-chemical

challenge to the means of lethal injection that Rutherford has raised in this case.

Of course, where petitioner’s scheduled execution is imminent, there is no practical

difference between denying a stay on equitable grounds and denying injunctive

relief on equitable grounds in a § 1983 lawsuit.

The district court was fully justified in applying the Gomez/Nelson equitable

principles to bar Rutherford’s request for an injunction against his execution by

lethal injection. Rutherford has been on Florida’s death row for more than

nineteen years. See Rutherford v. Crosby, 385 F.3d 1300, 1305 (11th Cir. 2004).

The state enacted a lethal injection option statute six years ago. See Fla. Stat. §

922.105(1) (as amended by 2000 Fla. Sess. Law Serv. Ch. 00-2 (S.B. No. 10A § 2)

(West)); see also Sims v. Florida, 754 So.2d 657, 663 n.11 (Fla. 2000). There has

8
been no suggestion that the lethal injection chemicals or procedures used by

Florida have changed in the last six years, and Rutherford’s complaint assumes that

they have not. See Complaint at 7 n.2. The Lancet research letter upon which he

bases his claim was published nine months before he filed his complaint. See L.G.

Koniaris, M.D., et al., “Inadequate Anaesthesia in Lethal Injection for Execution,”

365 The Lancet 1412 (Apr. 16, 2005). The Governor signed Rutherford’s death

warrant on November 29, 2005, setting the period from noon on January 30, 2006

through noon February 6, 2006 for the execution. The warden set the actual

execution time as Tuesday, January 31, 2006, at 6:00 p.m. ET. Not until 7:12 p.m.

ET on Friday, January 27, 2006, only two work days and four calendar days before

the scheduled execution, did Rutherford file his § 1983 lawsuit claiming that the

combination and amounts of chemicals Florida uses causes unnecessary pain in

violation of the Eighth and Fourteenth Amendments.

The district court pointed out that Rutherford had offered no reason for his

delay in bringing this action just days before his scheduled execution. In his filings

with us, Rutherford argues that he was precluded from filing this lawsuit earlier by

our Robinson decision, an excuse the dissenting opinion accepts. The obvious

flaw in that argument is that, as we have already explained, the grant of certiorari

in Hill has not affected the precedential value of Robinson. It is no less the law of

9
the circuit today than it was when we issued it. If Rutherford could file the lawsuit

now, as he has, he could have filed it before.

If, as the dissenting opinion says, “not until the Supreme Court granted

certiorari in Hill did Rutherford have reason to believe that, in this circuit, he might

have a cognizable claim under § 1983,” then Hill had no reason to believe that he

might have a cognizable claim under § 1983, either. The dissent overlooks the fact

that Hill did not have the benefit of the certiorari grant in Hill when Hill filed his

lawsuit. Yet Hill filed the lawsuit without any grant of certiorari on the issue.

Rutherford could have done exactly the same thing any time since Florida adopted

lethal injection six years ago, and certainly any time since The Lancet research

letter came out nine months ago. Instead, he chose to wait until the evening of the

fourth calendar day before his execution.

In addition to affirming the district court’s dismissal of Rutherford’s § 1983

lawsuit on the basis of our Robinson and Hill decisions, we affirm it as well on the

district court’s alternative ground based on the Supreme Court’s holding in Gomez

and its instructions in Nelson about § 1983 claims that are filed after unreasonable

delay.

10
 III.

Rutherford has filed with us an application for a stay of execution pending

resolution of this appeal. Because we are resolving this appeal by affirming the

district court’s dismissal of his § 1983 lawsuit, that application for stay will be

denied.

Rutherford also has filed with us a separate application seeking a stay

pending a decision by the Supreme Court in the Hill case. We also deny it for two

reasons. First, even if the Supreme Court decides in the Hill case to overturn our

Hill and Robinson decisions and holds that this type of claim is cognizable in a §

1983 proceeding, Rutherford still will not be entitled to any equitable relief

because of the district court’s independently adequate alternative ground for

dismissing his complaint, which we are affirming in this opinion. Neither of the

two questions on which certiorari was granted in Hill touch on that alternative

ground.

Second, the Supreme Court is in a better position to decide whether it wants

a stay of execution issued in this case than we are, and it has time to make a

decision about a stay. All of the papers filed in the district court and in this Court

throughout this proceeding have been contemporaneously lodged with the Supreme

Court, and that Court will have our opinion within minutes of the time we issue it.

11
Our decision to let the Supreme Court decide whether it wants to issue a stay of

execution in this case is informed by two considerations.

One of those considerations is what this Court has done when facing this

same situation in the past. At least four times over the years we have been asked to

issue a stay of execution based on a grant of certiorari in another case raising an

issue identical to one that the movant was raising in the case before us, an issue

foreclosed by existing circuit precedent that might be overruled by the Supreme

Court. All four times we have declined to do so because the grant of certiorari

does not change circuit precedent, and it makes more sense to let the Court that is

going to be deciding the issue determine whether there should be a stay in another

case raising it. Robinson v. Crosby, 358 F.3d at 1284 (declining to grant a stay

pending the Supreme Court’s decision in Nelson v. Campbell because “the grant of

certiorari alone is not enough to change the law of this circuit or to justify this

Court in granting a stay of execution on the possibility that the Supreme Court may

overturn circuit law”); Thomas v. Wainwright, 788 F.2d at 689 (denying a stay

even though certiorari had been granted in another case on the issue, because “[t]o

date, the law in this Circuit, which has not been modified by Supreme Court

decision, mandates a denial of relief to petitioner on this issue,” and “any

implications to be drawn [from the grant of certiorari in the other case] may be

12
discerned by application to the Supreme Court”) (internal marks and citations

omitted); Jones v. Smith, 786 F.2d at 1012 (same); Bowden v. Kemp, 774 F.2d at

1495 (same).4

The second consideration that informs our decision not to grant a stay of

execution in this case pending the decision in Hill is what happened last week in

the Bieghler case, a case raising issues remarkably similar to those in this one. The

complaints in both cases raised the same Eighth Amendment issue based on the

same alleged harmful effects of the same chemical sequence of sodium pentothal,

pancuronium bromide, and potassium chloride used by Indiana and Florida to carry

out executions by lethal injection. The complaints’ descriptions of the nature and

effects of each of the three chemicals are substantially similar. For example,

Bieghler’s complaint described sodium pentothal as “an ultrashort-acting

barbiturate that begins to wear off almost immediately” and alleged that it is used

“only in the induction phase of anaesthesia . . . so that the patient may re-awaken

4
Our dissenting colleague relies on Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002), for
the proposition that a stay should be granted when the Supreme Court has granted certiorari in
another case to decide a common issue. To the extent Mobley supports that position, it is
inconsistent with the Thomas, Jones, and Bowden decisions which preceded it. Under the prior
panel precedent rule it is absolutely clear that where decisions are inconsistent, the earlier decision
(or in this instance the earlier three decisions) establish the law that must be followed. See United
States v. Hornaday, 392 F.3d 1306, 1316 (11th Cir. 2004); Hurth v. Mitchem, 400 F.3d 857, 862
(11th Cir. 2005); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1072 (11th Cir. 2000).

Although it attempts to distinguish Robinson, the dissenting opinion makes no effort to
distinguish Thomas, Jones, and Bowden, and in fact they are indistinguishable.

13
and breathe on their own power if any complications arise in inserting a breathing

tube pre-surgery.” (Bieghler Compl. at 3-4.) Rutherford’s complaint describes

sodium pentothal as “an ultrashort-acting substance which produces shallow

anesthesia” and alleges that it is used primarily “as an initial anesthetic in

preparation for surgery while they set up a breathing tube in the patient.”

(Rutherford Compl. at 4.) The two complaints’ descriptions of the other two

chemicals are also materially identical. (Compare Bieghler Compl. at 3-5 with

Rutherford Compl. at 5-6.)

Both complaints rely on the same research letter published in The Lancet, a

medical journal. They both characterize the principal finding of the cited work as

being that sodium pentothal levels in the blood of 21 of the 49 executed inmates

indicated that those inmates had “consciousness during the execution,” (Bieghler

Compl. at 6), and were therefore able to feel “the suffering of suffocation from

pancuronium bromide, and the burning of the veins followed by the heart attack

caused by the potassium chloride.” (Rutherford Compl. at 6-7).

On January 26, 2006, Bieghler filed a last-minute § 1983 claim seeking a

injunctive relief and a stay of execution, which the district court denied on the

same day. Bieghler v. Donahue, No. 1:06-CV-0136-LJM-TAB (Jan. 26, 2006).

The reason for the denial was that Bieghler had delayed unnecessarily the filing of

14
his § 1983 claim. Id. The Seventh Circuit granted a stay of execution later that

day. See Bieghler v. Donahue, No. 06-1300 (7th Cir. Jan. 26, 2006). The reason

the Seventh Circuit granted the stay was the Supreme Court’s grant of certiorari in

Hill v. Crosby, No. 05-8794, __ U.S. __, __ S.Ct. __, 2006 WL 171583 (Jan. 25,

2006). Upon the State of Indiana’s motion, the Supreme Court vacated the stay

the Seventh Circuit had issued. Donahue v. Bieghler, No. 05A684, __ U.S. __, __

S.Ct. __, 2006 WL 189970 (Jan. 27, 2006).

The dissenting opinion in this case attempts to distinguish the Bieghler case

on the ground that the state in that case offered to alter the dosages of the drugs

used, an offer Beighler refused. That is an interesting fact, but not one that had

anything to do with the district court’s denial of injunctive relief and dismissal of

the § 1983 lawsuit. The district court decision in that case makes clear that it was

grounded solely on Beighler’s unreasonable delay in seeking relief, not on his

refusal to help the state execute him in a constitutional manner. Citing the

unreasonable delay decision in White v. Johnson, the Bieghler court explained:

“Bieghler has delayed unnecessarily in seeking relief. The equities now lie with

the ability of the State of Indiana to execute the sentence Bieghler received and

which has withstood decades of review.” Bieghler v. Donahue, No. 1:06-CV-

0136-LJM-TAB at 3 (Jan. 26, 2006).

15
 The district court in this case, like the district court in the Bieghler case,

denied relief on the Gomez/Nelson unreasonable delay ground. The only

difference is that the district court in this case had an additional ground for denial

of relief, which was that under our Hill and Robinson decisions relief could not

have been granted on the claim anyway. The inclusion of an additional ground for

denying relief certainly does not justify the grant of a stay.

We disagree with our dissenting colleague’s assertion that Rutherford’s case

is on all fours with the Hill case, that the issues are virtually “identical” and that

“had the instant case preceded Hill by one day, it would be currently awaiting

Supreme Court review with the execution stayed.” (Dissent at 22) That assertion

misses the whole point that the denial of relief in Hill was not based in any part on

unreasonable delay in filing the § 1983 complaint. Instead, in Hill the sole ground

the district court and this Court relied on was Robinson’s functional equivalent

rule. That was the only reason given for dismissing the lawsuit in that case.

Because the district court in this case, by contrast, alternatively treated

Rutherford’s complaint as cognizable under § 1983 and relied on the unreasonable

delay ground as an additional alternative basis for denying § 1983 relief, this case

is more like Bieghler than Hill. The district court did not abuse its discretion in

denying equitable relief in Rutherford’s last-minute § 1983 action.

16
 IV.

The judgment of the district court dismissing Rutherford’s 42 U.S.C. § 1983

complaint is AFFIRMED. The applications for stay of execution are DENIED.

17
WILSON, Circuit Judge, dissenting:

I would stay Rutherford’s execution, and hold his case in abeyance until the

Supreme Court reaches a decision in Hill v. Crosby, 11th Cir. 2006, __ F.3d __,

(No. 06-10621, Jan. 24, 2006) (per curiam), stay of execution and cert. granted, __

S. Ct. __ (U.S. Jan. 25, 2006) (No. 05-8794). The questions presented to the

Supreme Court in Hill are virtually identical to those posed by Rutherford’s case:

(1) Whether a complaint brought under 42 U.S.C. § 1983 by a
death-sentenced state prisoner, who seeks to stay his execution
in order to pursue a challenge to the chemicals utilized for
carrying out the execution, is properly recharacterized as a
habeas corpus petition under 28 U.S.C. § 2254?

(2) Whether, under this Court’s decision in Nelson, a challenge to a
particular protocol the State plans to use during the execution
process constitutes a cognizable claim under 42 U.S.C. § 1983?

Furthermore, Rutherford’s case raises these questions with regard to Florida’s

method of lethal injection, the same state method at issue in Hill. In spite of these

striking similarities, the majority holds that we must follow our decision in Hill

and deny Rutherford’s application for a stay, because Hill constitutes binding

precedent in this circuit. In the absence of certiorari by the Supreme Court in Hill,

I would agree. However, the Supreme Court’s grant of certiorari in Hill calls our

decision in that case into question.

18
 I.

In Hill, we denied a stay of execution based on our decision in Robinson v.

Crosby, 358 F.3d 1281 (11th Cir. 2004) (per curiam), because we found that it

dealt with “the very issue” presented by Hill, which is, of course, the lethal

injection method also at issue in Rutherford’s case. In Robinson, we found that

Robinson sought “to avoid entirely execution by lethal injection,” and we

determined that such a challenge “necessarily implicates the validity of his death

sentence.” Robinson, 358 F.3d at 1285-86 (emphasis added). We therefore

concluded that Robinson’s § 1983 claim was the “functional equivalent” of a

successive habeas petition, and was properly dismissed by the district court for

lack of jurisdiction. See id. at 1284-86. When we decided Robinson, however, we

did not have the benefit of the Supreme Court’s decision in Nelson v. Campbell,

which acknowledged that method-of-execution claims are not easily categorized,

and that “[a] suit seeking to enjoin a particular means of effectuating a sentence of

death does not directly call into question the ‘fact’ or ‘validity’ of the sentence

itself . . . .” 541 U.S. 637, 643-44 124 S. Ct. 2117, 2123, 158 L. Ed. 2d 924 (2004)

(emphasis added).1 Given that this careful language is at odds with our more

1
Although the Court also recognized that, under some circumstances, a method-of-execution
challenge could implicate the “fact” of the sentence itself, the Court’s language was not absolute.
See Nelson, 541 U.S. at 644, 124 S. Ct. at 2123 (“[A] constitutional challenge seeking to
permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence

19
categorical approach in Robinson, that Robinson was the basis for our decision in

Hill, and that the Supreme Court has now granted certiorari in Hill to review the

same issues as those presented in Rutherford’s case, there is good reason to stay

Rutherford’s execution. Cf. Mobley v. Head, 306 F.3d 1096, 1096-97 (11th Cir.

2000) (granting stay of execution where a forthcoming Supreme Court decision

would “determine our resolution of the issues [appellant] raises in this appeal”); In

re Williams, 359 F.3d 811, 815 (6th Cir.) (“The Supreme Court . . . and other

circuits have all granted stays of execution when the Supreme Court has taken a

case to resolve an important issue germane to the action.”) (Moore, J., dissenting),

cert. denied sub nom. Williams v. Taft, 540 U.S. 1206, 124 S. Ct. 1478, 158 L. Ed.

2d 129 (2004).

In Robinson, we did not attribute much weight to the fact that the Supreme

Court had then granted certiorari on our decision in Nelson v. Campbell, 347 F.3d

910 (11th Cir. 2003), rev’d, 541 U.S. 637, 124 S. Ct. 2117, 158 L. Ed. 2d 924

(2004) . See Robinson, 358 F.3d at 1283-85. We gave two reasons for this:

First, the grant of certioari alone is not enough to change the law of
this circuit or to justify this Court in granting a stay of execution on
the possibility that the Supreme Court may overturn circuit law.
Second, and more important, the Defendants point out that there are
material factual and legal distinctions between Nelson and this case in
any event.

itself.”) (emphasis added).

20
Id. at 1284 (internal citations omitted) (emphasis added). Nelson, we explained,

involved not a challenge to the lethal injection itself, as in Robinson, but rather a

challenge to the “cut-down” procedure used to gain venous access prior to the

injection. See id. The Supreme Court’s decision on the latter challenge, we

surmised, would not affect our decision on the former. See id. at 1285. Regardless

of whether one still finds this conclusion persuasive in light of the actual Nelson

decision, our approach in Robinson does not require that we discount the grant of

certiorari in Hill. All we said in Robinson is that the grant of certiorari “alone”

does not “justify this Court in granting a stay of execution on the possibility that

the Supreme Court may overturn circuit law.” Robinson, 358 F.3d at 1284. We

said that the “more important” factor is whether there are “material factual and

legal distinctions” between the two cases. Id. Unlike Robinson in comparison to

Nelson, there simply are no “material factual and legal distinctions” between

Rutherford’s case and Hill–a point that neither the parties nor the district court

appear to dispute. Indeed, the district court expressly found that the issue

Rutherford raised is the same issue that was raised in Robinson and Hill. See

Rutherford v. Crosby, No. 06-cv-50 (N.D. Fla. Jan. 28, 2006).

The majority relies upon Bieghler v. Donahue, No. 06 C 136 (7th Cir. Jan.

26, 2006), stay vacated by No. 05A684, ___ U.S. ___, ___ S. Ct. ___ (Jan. 27,

21
2006) in which the Seventh Circuit entered a stay of execution which the Supreme

Court eventually vacated. The factual similarities between Rutherford’s case and

Hill distinguish it from Bieghler. Although Bieghler involved a similar method of

execution and relied on Hill for granting the stay, it did not involve the same

jurisdictional question that both Rutherford’s case and Hill present. In addition, in

Bieghler and unlike in Rutherford’s case, the state had offered to cure any

problems with the execution method by administering additional anesthetic, which

Bieghler refused. The fact that the Supreme Court vacated the Bieghler stay does

not mean that it would vacate a stay in Rutherford’s case, which is factually and

legally identical to Hill.

In short, Rutherford’s case is on all fours with Hill, a case from our circuit in

which the Supreme Court has granted certiorari to review the same issues about the

same method of execution in the same state. Indeed, had the instant case preceded

Hill by one day, it would be currently awaiting Supreme Court review with the

execution stayed. The Supreme Court’s decision will provide us with essential

guidance on the district court’s jurisdiction, if any, to entertain Rutherford’s § 1983

complaint–and thus the proper disposition of this appeal. Accordingly, we should

stay Rutherford’s execution and hold his case in abeyance pending the Supreme

Court’s resolution of the questions presented in Hill.

22
 II.

The majority holds that, even assuming there is jurisdiction over

Rutherford’s § 1983 action, a stay is inappropriate because Rutherford

unnecessarily delayed in bringing his claim. The district court abused its discretion

in reaching this conclusion. Before granting a stay, a district court “must consider

not only the likelihood of success on the merits and the relative harms to the

parties, but also the extent to which the inmate delayed unnecessarily in bringing

the claim.” Nelson, 541 U.S. at 649-50, 124 S. Ct. at 2126. However, the “strong

equitable presumption against the grant of a stay” is appropriate only when “a

claim could have been brought at such a time as to allow consideration of the

merits without requiring entry of a stay.” Id. at 650, 2126. As is clear from the

discussion above, there was little point in Rutherford bringing his § 1983 claim

until the Supreme Court granted certiorari on our decision in Hill.

Appellees contend that Rutherford could and should have raised his claim in

2000, when Florida first provided for lethal injection. The key research on which

Rutherford relies, however, was not published until April of 2005.2 Of course, if

2
The district court did not consider the April 2005 Lancet article to be significant, because
courts had rejected factually similar arguments made prior to the article’s publication. There is a
difference, however, between how much Rutherford might have relied upon the presentation of
losing arguments in court, and how much he might have relied upon a peer-reviewed article
published in a scientific journal.

23
Rutherford had filed his § 1983 claim in 2005, our precedent in Robinson would

have required that it be treated as a successive habeas petition and dismissed for

lack of jurisdiction. See Robinson, 358 F.3d at 1284.3 Indeed, not until the

Supreme Court granted certiorari in Hill did Rutherford have reason to believe that,

in this circuit, he might have a cognizable claim under § 1983. Given that the

factual and legal bases for Rutherford’s claim were not fully in place until six days

before his scheduled execution, he cannot fairly be charged with “unnecessary

delay.” Moreover, nothing in the record before this Court indicates that

Rutherford’s filing is an attempt to stall his execution merely for delay’s sake, or to

“manipulate the judicial process.” See Nelson, 541 U.S. at 650, 124 S. Ct. at 2126

(internal quotations and citation omitted). Thus, the district court abused its

discretion in applying a “strong equitable presumption” against a stay–an error the

district court further compounded by failing to weigh carefully Rutherford’s

likelihood of success on the merits and the relative harms to the parties. See id. at

649-50, 2126.

The district court also stated that, even if Rutherford had not delayed in

bringing his claim, the claim would nevertheless fail because it does not fall within

3
Had Rutherford brought his claims then as a successive habeas petition, they would have
been denied as well. See Robinson, 358 F.3d at 1284; In re Provenzano, 215 F.3d 1233, 1236 (11th
Cir. 2000) (per curiam).

24
Nelson’s “narrow confines.” In other words, the district court construed Nelson to

require that Rutherford demonstrate that he suffers from a “unique medical

condition” which the lethal injection protocol would aggravate. Yet, this is

precisely the subject of one of the questions presented to the Supreme Court in Hill

(and specifically not addressed in Nelson): whether a challenge to a particular

protocol the State plans to use during the execution process constitutes a

cognizable claim under 42 U.S.C. § 1983. Thus, we have all the more reason to

grant a stay and await the Supreme Court’s guidance.

Finally, as Hill demonstrates, a last minute stay of execution in an

extraordinary case is not unique, particularly when the Supreme Court is preparing

to decide an issue that controls the case’s outcome. See Mobley 306 F.3d at 1096-

97; see also In re Holladay, 331 F.3d 1169 (11th Cir. 2003) (granting eleventh

hour application for leave to file a second habeas petition and stay of execution);

Bolender v. Singletary, 60 F.3d 727 (11th Cir. 1995) (per curiam) (denying

eleventh hour application for certificate of probable cause but staying execution to

give the Supreme Court an opportunity to consider the application). Since death

by execution is an irreversible penalty, we would be remiss to permit Rutherford’s

execution to proceed, only to have the Supreme Court later decide that he was

entitled to pursue his claim in federal district court. This is the very purpose for

25
the availability of a stay of execution. I respectfully dissent.

26
 Page 27 of 34

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ARTHUR DENNIS RUTHERFORD,

Petitioner,

v. Case No. 4:06-cv-50/MCR

JAMES V. CROSBY, JR., Secretary,
Florida Department of Corrections, and
CHARLIE CRIST, Attorney General of Florida,

Respondents.
_________________________________________/

ORDER

This matter is before the court on a Verified Complaint for Declaratory and
Injunctive Relief filed by Arthur Rutherford through his counsel on January 27,
2006, with supporting memoranda, and an Application for Stay and Motion to
Hold Proceedings in Abeyance.1 For the reasons that follow, the court finds that
the petition must be dismissed for lack of jurisdiction.2 This case has an
extensive history dating back to Petitioner’s original death sentence in December
of 1986. The facts and procedural history of the case are set out in the Eleventh
Circuit Court of Appeals’ opinion in Rutherford v. Crosby, 385 F.3d 1300 (11th cir.
2004), cert. denied, 125 S. Ct. 1847 (2005), and demonstrate that the Petitioner has

1
For reasons explained infra, the court will hereinafter refer to the complaint as a petition and to plaintiff as
petitioner.
2
While Respondents argue that Rutherford’s petition should be dismissed for failure to state a cause of action
as opposed to lack of jurisdiction, a federal court may determine sua sponte that it lacks the jurisdiction to entertain the
matter before it. Vermeulen v. Renault., U.S.A., Inc., 985 F.2d 1534, 1542 (11th Cir. 1993); see also, University of South
Alabama v. American Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999).

Case No.: 4:06cv 50/MCR
 Page 28 of 34

filed previous petitions for habeas corpus, both in the state and federal courts.
See e.g., Rutherford v. State, 545 So.2d 853 (Fla. 1989); Rutherford v. State, 727
So.2d 216 (Fla. 1999); Rutherford v. Moore, 774 So.2d 637 (Fla. 2000).
Petitioner now brings the instant suit as a complaint for declaratory and
injunctive relief under 42 U.S.C. § 1983 for alleged prospective violations of his
Eighth and Fourteenth Amendment rights to be free from cruel and unusual
punishment, claiming that death by lethal injection according to the protocol
followed in Florida “creates a foreseeable risk of the gratuitous and unnecessary
infliction of pain on a person being executed.” Plaintiff bases his claim on a
research article co-authored by Dr. David A. Lubarsky, an anesthesiologist, and
published in The Lancet . This article, “Inadequate Anaesthesia in Lethal
Injection for Execution,” Vol 365, The Lancet 1412-14 (April 16, 2005), is attached
to Petitioner’s petition as Attachment B and states:
Lethal injection usually consists of sequential administration of sodium
thiopental for anaesthesia, pancuronium bromide to induce paralysis, and
finally potassium chloride to cause death. (Cite omitted). Without
anaesthesia, the condemned person would experience asphyxiation, a
severe burning sensation, massive muscle cramping, and finally cardiac
arrest. Thus, adequate anaesthesia is necessary both to mitigate the
suffering of the condemned and to preserve public opinion that lethal
injection is a near-painless death.
Id. at 1412. The above conclusion is based on research and data from post-
mortem toxicological tests conducted on condemned inmates in Arizona,
Georgia, North Carolina and South Carolina, from which the researchers found
that the concentrations of thiopental (sodium pentothal) were lower than that
required for surgery in 88% of the executed inmates and that 43% of the executed
inmates had concentrations of thiopental consistent with awareness because
they had an insufficient amount of sodium pentothal in their bloodstream to

Case No.: 4:06cv 50/MCR
 Page 29 of 34

provide adequate anesthesia. (Doc. 2-1 at 7-8).3 The article suggests that “some
inmates might experience awareness and pain during execution.” The Lancet at
1412. Petitioner contends that under Florida’s lethal injection protocol there is a
likelihood that he will unnecessarily suffer awareness and pain during his
execution in violation of the Eighth Amendment and Fourteenth prohibition
against cruel and unusual punishment.
This very same issue was recently addressed in Hill v. Crosby , 2006 WL
167585(N.D. Fla.)(Jan. 21, 2006), wherein the district court dismissed Hill’s
complaint for declaratory and injunctive relief pursuant to § 1983 for lack of
jurisdiction, treating Hill’s § 1983 complaint as the functional equivalent of a
successive habeas corpus petition and finding that it lacked jurisdiction to
consider it as such because Hill had failed to obtain leave from the Eleventh
Circuit to file it as required by 28 U.S.C. § 2244(b)(3)(A).4 On appeal, the Eleventh
Circuit Court of Appeals affirmed the district court’s order, confirming that the
court lacked jurisdiction to hear Hill’s complaint without his having first obtained
leave to file a successive habeas corpus petition pursuant to the requirements of

3
Florida’s lethal injection procedure is outlined in detail in Sims v. State, 754 So.2d 657, 666 (Fla. 2000), and
it is assumed that the same procedure will be used in Petitioner’s execution. Dr. Lubarsky states in his affidavit, attached
to Petitioner’s petition as Attachment A, that on the basis of information contained in Sims the procedure used in Florida
is substantially similar to the procedure used in the states which provided the toxicology data. See Attachment A at 6.
4
28 U.S.C. § 2244(b) provides as follows:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that
was presented in a prior appeal shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section
2254 that was not presented in a prior application shall be dismissed unless–

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(I) the factual predicate for the claim could not have been discovered previously through the exercise
of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying offense.

28 U. S. C. § 2244(b)(3)(A) further provides that “[b]efore a second or successive application permitted by this section
is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district
court to consider the application.”

Case No.: 4:06cv 50/MCR
 Page 30 of 34

28 U.S.C. § 2244(b)(3)(A). Hill v. Crosby, 2006 WL 163607 (11th Cir., Jan. 24, 2006).
Thereafter, the United States Supreme Court stayed Hill’s execution and granted
his petition for a writ of certiorari. Hill v. Crosby, 2006 WL 171583 (Jan. 25, 2006).5
Ruling on Hill’s § 1983 claim, the district court correctly relied on the
binding precedent of this circuit in Robinson v. Crosby, 358 F.3d 1281 (11th Cir.
2004), by treating Hill’s claim as the functional equivalent of a successive habeas
corpus petition. In Robinson, the petitioner alleged that “lethal injection causes
those who are executed pain and suffering while they are paralyzed and unable to
communicate,” in violation of their Eighth and Fourteenth Amendment rights to
be free from cruel and unusual punishment. Id. at 1282. The district court
construed Robinson’s § 1983 action as the functional equivalent of a successive
habeas corpus petition which would subject him to the requirements of 28 U.S.C.
§ 2244. In concluding that the district court properly dismissed Robinson’s §
1983 complaint for lack of jurisdiction the Eleventh Circuit held:
A § 1983 claim seeking relief–including a TRO, preliminary injunction, or a
stay of execution–from a sentence of death as cruel and unusual
punishment is the “functional equivalent” of a successive habeas petition.
The district court lacked jurisdiction to consider Robinson’s claim because
he failed to apply to this Court for permission to file a successive habeas
petition. We further note that such an application to file a successive
habeas petition would be denied in any event. See In re Provenzano, 215
F.3d 1233, 1235-36 (11th Cir. 2000), cert. denied, 530 U.S. 1256, 120 S. Ct.

5
The two questions presented to the Court in support of the petition for certiorari review are as follows:

1. Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who
seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is
properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254?

2. Whether, under the Court’s decision in Nelson v. Alabama, 541 U.S. 637, 124 S. Ct. 2117, 158 L.
Ed. 2d 924 (2004), a challenge to a particular protocol the State plans to use during the execution process constitutes
a cognizable claim under 42 U.S.C. § 1983?

Notably, on January 27, 2006, the United States Supreme Court vacated a stay of execution issued by the
Seventh Circuit Court of Appeals in Bieghler v. Donahue, Case No. 06-1300. See Donahue v. Bieghler, Case No. 05A684.
The Seventh Circuit had granted the stay based solely on the Supreme Court’s grant of the writ of certiorari in Hill v.
Crosby. However, in Bieghler the lower courts did not recharacterize Bieghler’s § 1983 claim as a successive habeas
corpus petition and therefore the issue before the Supreme Court on petition for certiorari in Bieghler and Hill was not the
same.

Case No.: 4:06cv 50/MCR
 Page 31 of 34

2710, 147 L. Ed. 2d 979 (2000) (concluding that a claim that lethal injection
constitutes cruel and unusual punishment does not meet the requirements
of 28 U.S.C. § 2244(b)(2)(A) or (B)).
Id. at 1284 (remaining internal cites omitted). The issue presented in Robinson is
essentially the issue presented here, i.e. whether a district court has jurisdiction
to consider an inmate’s claim brought pursuant to 42 U.S.C. § 1983 alleging that
“by using a succession of three chemicals that will cause unnecessary pain in
the execution of a sentence of death,” the Petitioner will be deprived “of his
rights under the Eighth and Fourteenth Amendments to be free from cruel and
unusual punishment,” a question the Eleventh Circuit answered in the negative in
Robinson. Petitioner in this case, however, has not addressed Robinson, nor has
he attempted to distinguish his case from Hill. The issue raised by Petitioner
here was raised, addressed, and disposed of in both Robinson and Hill.
Accordingly, following and applying the law of this circuit as set forth in
Robinson and Hill, this court concludes that Petitioner’s § 1983 complaint seeks
to avoid his execution by lethal injection and therefore necessarily implicates the
validity of his death sentence.6 Consequently, Petitioner’s claim and request for
relief is the functional equivalent of a successive habeas corpus petition and
absent his having first obtained leave to file a successive petition from the
Eleventh Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A), this court is without
jurisdiction to entertain Petitioner’s petition. Notwithstanding, even assuming
Petitioner has a cognizable claim under 42 U.S.C. § 1983, this court would
nonetheless conclude that he is not entitled to relief due to unnecessary delay in
bringing his claim.7 See Gomez v. United States Dist. Court for N. Dist. of Cal.,

6
While this court acknowledges that a writ of certiorari was granted in Hill’s case and that the claim and request
for relief sought by Petitioner are identical to Hill’s, the grant of certiorari in Hill’s case does not change the law of this
circuit or justify this court’s granting a stay of execution on the possibility that the Supreme Court may overturn Eleventh
Circuit law. See Robinson v. Crosby , 358 F.3d 1281, 1284 (11th Cir. 2004); Ritter v. Thigpen, 828 F.2d 662, 665-66 (11th
Cir. 1987).
7
The court seriously doubts that Petitioner’s claim in any event would fall within the narrow confines of Nelson
v. Campbell, 541 U.S. 637, 649, 124 S. Ct. 2117, 2125, 158 L. Ed. 2d 924 (2004)(noting that its holding “is extremely
limited.”).

Case No.: 4:06cv 50/MCR
 Page 32 of 34

503 U.S. 653, 654, 112 S. Ct. 1652, 1653, 118 L. Ed. 2d 293 (1992)(per curiam)(“A
court may consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.”). Petitioner, however, claims that The
Lancet article is the “first empirical research published regarding lethal
injection.” (Doc. 3 at n.1). While The Lancet article itself may be new, the factual
basis of Petitioner’s claim (that the doses of the anesthetic sodium pentothal may
be insufficient thus permitting those injected to experience the feelings of being
suffocated and having a heart attack, but unable to express their pain by virtue of
being paralyzed by pancuronium ), has been raised and disposed of in other
cases. As the court in Robinson noted:
“the affidavits [accompanying Robinson’s section 1983 complaint] discuss
the drugs used in the lethal injection. Three affidavits that Robinson filed
in the district court are copies of affidavits from the case of State of Texas
v. Jesus Flores, No. 877994. These affidavits address the effects of the
drugs used during lethal injection, how they each cause pain and suffering,
and particularly how the pancuronium bromide chemical paralyzes the
person and masks the pain and suffering being incurred.
Robinson, 358 F.3d at 1285 n. 4. See also Brown v. Crawford, 408 F.3d 1027 (8th
Cir. 2005); Bieghler v. State, 839 N.E.2d 691(Ind. 2005). Moreover, Florida’s lethal
injection methods were subjected to a full evidentiary hearing in 2000 in Sims v.
State, 754 So.2d 657 (Fla. 2000), and Petitioner could have challenged the
procedure after the Sims decision was rendered. Thus, the petition in this case
raises no true issues of newly discovered evidence.
Additionally, Petitioner has offered no reason for his delay in bringing a §
1983 action until just days before his scheduled execution. The court notes there
is no requirement to exhaust state proceedings prior to bringing a § 1983 claim.8
In general, exhaustion of state remedies is not a prerequisite to filing an action
under § 1983, even in the case of state prisoners, unlike federal habeas corpus
actions brought pursuant to 28 U.S.C. § 2254 where exhaustion of state remedies

8
Petitioner has also not specifically addressed his failure to comply with the requirements of The Prison
Litigation Reform Act of 1995 nor argued why he would be exempt from these requirements. See 42 U.S.C. § 1997e(a).

Case No.: 4:06cv 50/MCR
 Page 33 of 34

is required. See Heck v. Humphrey, 512 U.S. 477, 480, 114 S. Ct. 2364, 2369, 129
L. Ed. 2d 383 (1994); Patsy v. Board of Regents of Fla., 457 U.S. 496, 501 and 509,
102 S. Ct. 2557, 2560 and 2564, 73 L. Ed. 2d 172 (1982). As stressed by the
Supreme Court in Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S. Ct. 2117, 2126,
158 L. Ed. 2d 924 (2004):
A stay is an equitable remedy, and “[e]quity must take into consideration
the State’s strong interest in proceeding with its judgment and . . .
attempt[s] at manipulation.” [Gomez, 503 U.S. at 654, 112 S. Ct. at 1653].
Thus, before granting a stay, a district court must consider not only the
likelihood of success on the merits and the relative harm to the parties, but
also the extent to which the inmate has delayed unnecessarily in bringing
the claim. Given the State’s significant interest in enforcing its criminal
judgments, there is 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.
(remaining internal cites omitted). See also In re Hicks, 375 F.3d 1237, 1241 (11th
Cir. 2004); Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004)(“By waiting as long
as he did, Harris leaves little doubt that the real purpose behind his claim is to
seek a delay of his execution, not merely to effect an alteration of the manner in
which it is carried out.”); White v. Johnson, 429 F.3d 572, 574 (5th Cir.
2005)(“White has been on death row for more than six years, and only now, with
his execution imminent, has decided to challenge a procedure for lethal injection
that the State has been using for his entire stay on death row . . . . White has no
excuse for delaying his claim until the eleventh hour, and he cannot argue that
‘he was unaware of the State’s intention to execute him by injecting the three
chemicals he now challenges.’” (citing Harris, supra, 376 F.3d at 417)); White v.
Livingston, 126 S. Ct. 601 (2005)(denial of stay of execution).9
Finally, even assuming Petitioner had not delayed in bringing his current
action, the court would nonetheless find that Petitioner’s claim fails to fall within
the narrow confines of Nelson. Here Petitioner is challenging Florida’s standard

9
The Supreme Court also recognized in Nelson that “the mere fact that an inmate states a cognizable § 1983
claim does not warrant the entry of a stay as a matter of right.” Nelson, 541 U.S. at 649, 124 S. Ct. at 2125-26.

Case No.: 4:06cv 50/MCR
 Page 34 of 34

protocol involving lethal injection and has made no claim, as the petitioner did in
Nelson, that due to his unique medical situation the lethal injection protocol as
applied to him constitutes cruel and unusual punishment in violation of the
Eighth Amendment. Therefore, Petitioner is in effect challenging the validity of
his sentence and is thus subject to the laws governing federal habeas corpus
petitions. This court is without jurisdiction to entertain Petitioner’s petition
without his first complying with the requirements of 28 U.S.C § 2244(b)(3)(A).
Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner’s
Verified Complaint for Declaratory and Injunctive Relief (doc. 2) is hereby
DISMISSED for lack of jurisdiction. Petitioner’s Application for Stay of Execution
and Motion to Hold Proceedings in Abeyance (doc. 4) is DENIED. No stay of
execution shall issue in this case.
DONE and ORDERED this 28th day of January, 2006.

s/ M. Casey Rodgers
M. CASEY RODGERS
United States District Judge

Case No. 4:06-cv-50/MCR