Brian Terrell v. Commissioner, GA DOC
2015 U.S. App. LEXIS 21289
11th Cir.2015Background
- Brian Keith Terrell, sentenced to death for a 1992 murder, filed a 42 U.S.C. § 1983 challenge two days before his scheduled execution, alleging Georgia’s compounded pentobarbital protocol creates an Eighth Amendment risk of severe pain and that Georgia’s statute classifying execution-related information as a state secret violates due process.
- District court denied his emergency motion for a temporary restraining order and stay of execution; Terrell appealed to the Eleventh Circuit seeking a stay.
- Terrell relied on events surrounding prior Georgia executions (notably Kelly Gissendaner and Marcus Johnson), including reports of precipitation/cloudiness in compounded pentobarbital batches and a longer time-to-death in one execution, plus expert affidavits asserting potential contamination/pH risks.
- Georgia responded that it postponed executions when potential problems were detected, tested suspect batches, implemented procedures to prevent recurrence, and used non-precipitated batches thereafter; no evidence showed contaminated batches were used in executions.
- The Eleventh Circuit applied the Glossip/Baze standard (requiring a demonstrated, substantial risk of severe pain and a feasible readily implemented alternative) and concluded Terrell failed to show a substantial likelihood of success on the merits; it also relied on circuit precedent foreclosing Terrell’s due process claim about secrecy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness/statute of limitations | Terrell brought his method-of-execution claim now (on eve of execution) | Claim accrued at completion of direct review (2003); statute of limitations elapsed | District court found claim time-barred; Eleventh Circuit affirmed denial of stay (no abuse of discretion) |
| Eighth Amendment — risk of severe pain | Compounded pentobarbital batches may be contaminated or have improper pH—could cause "immense" pain; prior precipitated batches and execution timing variances show risk | When problems were detected State postponed executions, tested batches, remediated procedures; no evidence contaminated batches were ever used; prior executions showed inmates appeared asleep | Terrell failed to show a demonstrated, sure or very likely risk of severe pain; no substantial likelihood of success on merits |
| Eighth Amendment — alternative method requirement | Suggests using a different compounding pharmacist (one without history of defective mixing) | No showing that an alternative source is feasible, readily implemented, or would significantly reduce risk | Terrell failed to identify a feasible, readily implemented alternative that would significantly reduce a substantial risk; required second prong not met |
| Due process — secrecy statute | Georgia’s confidentiality of drug/manufacturer identity prevents meaningful adversarial testing and violates procedural due process | Circuit precedent holds no broad right to discovery of identities/production details; State interest in confidentiality recognized | Court held Terrell’s due process claim foreclosed by binding Eleventh Circuit precedent (Wellons); secrecy statute did not entitle him to relief |
Key Cases Cited
- Glossip v. Gross, 135 S. Ct. 2726 (2015) (Condemned must show the protocol creates a demonstrated substantial risk of severe pain and identify a feasible, readily implemented alternative)
- Baze v. Rees, 553 U.S. 35 (2008) (plurality) (Eighth Amendment challenge requires demonstrated, objectively intolerable risk preventing prison officials from claiming they were subjectively blameless)
- Gissendaner v. Comm’r, Ga. Dep’t of Corr., 803 F.3d 565 (11th Cir. 2015) (per curiam) (circuit precedent applying Glossip/Baze standards to Georgia’s pentobarbital protocol)
- Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260 (11th Cir. 2014) (per curiam) (prisoner has no broad due process right to discovery of identities and details about execution drug sourcing and administration)
- Muhammad v. Secretary, 739 F.3d 683 (11th Cir. 2014) (abuse-of-discretion standard governs appellate review of a district court’s denial of a stay of execution)