[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 20, 2008
No. 07-15680 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-02534-CV-CC
SAMUEL DAVID CROWE,
Plaintiff-Appellant,
versus
JAMES E. DONALD, in his official
capacity as Commissioner of the
Georgia Department of Corrections,
HILTON HALL, in his official capacity
as Warden, Georgia Diagnostic and
Classification Prison,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 20, 2008)
Before BIRCH, BARKETT and PRYOR, Circuit Judges.
PRYOR, Circuit Judge:
Samuel David Crowe has moved for a stay of his execution by the State of
Georgia, which is scheduled to occur on May 22, 2008, at 7:00 p.m., pending our
review of the sua sponte dismissal of Crowe’s complaint that the method for lethal
injection employed by Georgia is cruel and unusual punishment. Because Crowe’s
complaint is barred by the statute of limitations and the equities do not favor a stay
of execution, we deny his motion.
Crowe was sentenced to death on November 18, 1989, after he pleaded
guilty to a murder committed on March 2, 1988. We have previously described the
details of the murder, Crowe’s conviction, and the litigation that followed. See
Crowe v. Hall, 490 F.3d 840, 843–44 (11th Cir. 2007). In 1995, the Supreme
Court of Georgia affirmed Crowe’s conviction and sentence, Crowe v. State, 265
Ga. 582, 458 S.E.2d 799 (1995), and in 1996 the Supreme Court of the United
States denied his petition for a writ of certiorari, Crowe v. Georgia, 516 U.S. 1148,
116 S. Ct. 1021 (1996).
In 2002, Crowe filed a petition for a writ of habeas corpus in the Superior
Court of Butts County, Georgia, that challenged, as cruel and unusual punishment,
the method of lethal injection used by Georgia. Crowe v. Terry, 426 F. Supp. 2d
1310, 1351 (N.D. Ga. 2005); Crowe v. Head, 356 F. Supp. 2d 1339, 1346–47
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(N.D. Ga. 2005). That petition was rejected by the Georgia court in 2002. Crowe
then filed a petition for a writ of habeas corpus in a federal district court and raised
the same challenge. Terry, 426 F. Supp. 2d at 1351. The district court denied
Crowe’s “claim that execution by lethal injection is cruel and unusual
punishment.” Id. at 1354. Crowe sought a certificate of appealability, see 28
U.S.C. § 2253(c), which was granted with respect to several other issues raised in
his petition but denied with respect to his challenge to the method of lethal
injection. We affirmed the denial by the district court of Crowe’s petition on June
27, 2007. Hall, 490 F.3d at 848.
On October 12, 2007, Crowe filed his third challenge to the method of lethal
injection in the form of a civil complaint under the Civil Rights Act of 1871, 42
U.S.C. § 1983. The district court sua sponte dismissed the complaint as barred
because the claim that the method of execution was cruel and unusual punishment
had already been decided when the district court denied Crowe’s petition for a writ
of habeas corpus. The district court dismissed Crowe’s complaint as frivolous
under the Prison Litigation Reform Act, 28 U.S.C. § 1915A(b)(1). Crowe
appealed.
After we received briefs from both parties and scheduled oral argument, the
Supreme Court denied Crowe’s petition for a writ of certiorari about our decision
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that affirmed the denial of his federal habeas corpus petition. Crowe v. Hall, No.
07-9096 (U.S. Apr. 21, 2008). On May 8, the Superior Court of Douglas County
ordered Crowe’s execution at the request of a district attorney. The Georgia
Department of Corrections set May 22, 2008, as the date of execution. The district
court denied Crowe’s motion for a stay of his execution, and Crowe has moved in
this Court for a stay pending our resolution of his appeal.
The Supreme Court of the United States has explained that a stay is an
equitable remedy not available as a matter of right and before a court grants a stay,
it must consider “the relative harms to the parties,” “the likelihood of success on
the merits,” and “the extent to which the inmate has delayed unnecessarily in
bringing the claim.” Nelson v. Campbell, 541 U.S. 637, 649–50, 124 S. Ct. 2117,
2126 (2004). We consider the relative harms to the parties by balancing the
competing interests of Crowe and Georgia. McNair v. Allen, 515 F.3d 1168, 1172
(11th Cir. 2008) (citing Nelson, 514 U.S. at 644, 124 S. Ct. at 2123). “A
defendant’s interest in being free from cruel and unusual punishment is primary;
however, the State’s interest in effectuating its judgment remains significant.” Id.
Victims of crime also “have an important interest in the timely enforcement of a
sentence.” Hill v. McDonough, 547 U.S. 574, 584, 126 S. Ct. 2096, 2104 (2006)
(citing Calderon v. Thompson, 523 U.S. 538, 556, 118 S. Ct. 1489, 1501 (1998)).
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“[L]ike other stay applicants, inmates seeking time to challenge the manner in
which 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.” Id.
Although the district court concluded that principles of res judicata and
collateral estoppel barred Crowe’s claim, which had already been rejected by the
state and federal courts that heard Crowe’s habeas petitions, we need not decide
that issue; Crowe’s appeal cannot succeed on the merits because his complaint is
untimely. See Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir.
2007) (“This court may affirm on any ground supported by the record.”). “All
constitutional claims brought under § 1983 are tort actions, subject to the statute of
limitations governing personal injury actions in the state where the § 1983 action
has been brought.” McNair, 515 F.3d at 1173. Crowe brought his claim in
Georgia, where the governing limitations period is two years. Ga. Code Ann. § 9-
3-33; Porter v. Ray, 461 F.3d 1315, 1323 (11th Cir. 2006). We have explained that
“a method of execution claim accrues on the later of the date on which state review
is complete, or the date on which the capital litigant becomes subject to a new or
substantially changed execution protocol.” McNair, 515 F.3d at 1174.
Crowe’s claim accrued no later than 2001, when, after direct review of his
convictions had been completed, Crowe became subject to the method of lethal
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injection that he challenges. See id. at 1177. Crowe’s complaint was filed several
years beyond the applicable two-year statute of limitations. Under our precedent,
Crowe did not have a significant possibility of success on the merits of his claim.
Id. at 1178 (“[T]he district court abused its discretion by determining [the plaintiff]
had a significant possibility of success on the merits of his claim when, in fact, the
complaint was filed beyond the applicable two-year statute of limitations.”).
The Supreme Court has explained that, “[g]iven 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.” Nelson v.
Campbell, 541 U.S. 637, 650, 124 S. Ct. 2117, 2126 (2004) (citations omitted). In
several decisions, we have refused to grant a dilatory stay sought on the eve of an
execution. See, e.g., Diaz v. McDonough, 472 F.3d 849, 850 (11th Cir. 2006); In
re Hutcherson, 468 F.3d 747, 749 (11th Cir. 2006); Hill v. McDonough, 464 F.3d
1256, 1259 (11th Cir. 2006) (hereinafter Hill II). Crowe filed his complaint eight
months ago, before his execution date was set, but his delay of more than five
years in bringing his complaint under the Civil Rights Act of 1871 was
unreasonable.
Our decision in Jones v. Allen, 485 F.3d 635 (11th Cir. 2007), is instructive.
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Jones challenged the method of lethal injection in Alabama under the Civil Rights
Act of 1871 ten months after we affirmed the denial of his habeas petition but
before the Supreme Court denied his petition for a writ of certiorari and before the
state set an execution date. Id. at 637–39 & n.2. While Jones’s complaint was
pending in the district court, Alabama set an execution date, and we denied his
motion to stay the execution. We explained that Jones had filed his claim “nearly
four years after Alabama made lethal injection its primary method of execution”
and could see “no convincing reason why . . . Jones could not have brought his
method-of-execution challenge sooner than he did.” Id. at 639–40. Jones’s delay
left “little doubt that the real purpose behind his claim [was] to seek a delay of his
execution, not merely to effect an alteration of the manner in which it [was] carried
out.” Id. (quoting Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004)) (internal
quotation mark omitted).
We must consider whether Crowe “could have brought his claim ‘at such a
time as to allow consideration of the merits without requiring entry of a stay,’” id.
(quoting Nelson, 541 U.S. at 650, 124 S. Ct. at 2126), and the answer to this
question is clearer than it was in Jones. Crowe waited longer than Jones to bring
his claim; Crowe waited almost three times the length of the applicable statute of
limitations. Crowe also delayed filing his complaint until after he brought
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challenges to the method of lethal injection in two petitions for writs of habeas
corpus.
The only excuse Crowe offers for his delay is an argument that he could not
have brought his complaint in this circuit until after the Supreme Court held in Hill
that a challenge to a method of execution is cognizable under the Civil Rights Act
of 1871, 547 U.S. at 576, 126 S. Ct. at 2100, but that argument fails for two
reasons. First, we have expressly rejected it. Grayson v. Allen, 491 F.3d 1318,
1322 (11th Cir. 2007) (“[N]othing precluded [the plaintiff] from filing a § 1983
action before the Supreme Court’s decision in Hill.”). Second, Crowe’s argument
fails to explain why he waited more than 14 months after Hill was decided to file
his complaint. Crowe could have filed his complaint years ago but waited until his
execution was imminent.
Crowe cannot succeed on the merits of his untimely complaint, and the
balance of equities does not support a stay. Crowe’s motion for a stay of
execution is
DENIED.
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