22 F.4th 621
6th Cir.2022Background
- Donald Middlebrooks was convicted and sentenced to death in 1989 for the brutal torture and murder of 14‑year‑old Kerrick Majors; he has pursued decades of postconviction and federal litigation.
- Tennessee currently intends to execute by a three‑drug lethal‑injection protocol (midazolam, vecuronium bromide, potassium chloride).
- Middlebrooks challenges that protocol under the Eighth Amendment, claiming a substantial risk of severe pain, and proposes pentobarbital (and previously nitrogen hypoxia) as less painful alternatives.
- Middlebrooks previously litigated against pentobarbital (arguing it posed a risk) and later urged pentobarbital as an alternative after Tennessee lost access to the drug.
- The panel denied rehearing en banc; Judge Thapar issued a separate statement respecting that denial emphasizing (1) perceived gamesmanship, (2) the controlling Baze‑Glossip‑Bucklew framework, and (3) In re Ohio Execution Protocol guidance on what it means for an alternative to be “feasible and readily implemented.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tennessee’s midazolam protocol violates the Eighth Amendment | Midazolam protocol creates substantial risk of severe pain (cruel and unusual punishment) | The State’s protocol does not cruelly superadd pain; Supreme Court precedent sets a high bar for relief | Under Baze/Glossip/Bucklew, plaintiff must show the protocol cruelly superadds pain and identify a feasible, readily implemented alternative; high standard applies |
| Whether pentobarbital is a “feasible and readily implemented” alternative | Pentobarbital would substantially reduce the risk of severe pain and is available (alleged new facts) | Pentobarbital is not currently obtainable with ordinary transactional effort; availability elsewhere or speculative applications do not satisfy the test | Following In re Ohio Execution Protocol, plaintiff must prove immediate, realistic access (more than possibility); availability in other jurisdictions or pending DEA applications is insufficient |
| Effect of Middlebrooks’s prior inconsistent litigation positions (judicial estoppel/res judicata) | Middlebrooks contends pentobarbital now reduces risk; previously he challenged pentobarbital | State argues prior positions and rulings undermine the current claim (res judicata/estoppel) | Nitrogen hypoxia was held res judicata; Thapar urges that judicial estoppel could apply to inconsistent positions but the State did not press it here, so it was not decided definitively |
| Proper procedural vehicle (§1983 vs habeas) for requesting a non‑authorized execution method | Middlebrooks frames claim under §1983 seeking an alternative method | State contends some alternatives (not authorized by state law) may implicate sentence validity and belong in habeas | Thapar suggests alternatives unauthoriz ed by state law (e.g., nitrogen hypoxia) may be cognizable only in habeas; existing Sixth Circuit precedent may require revisiting post‑Bucklew when presented in a proper case |
Key Cases Cited
- Glossip v. Gross, 576 U.S. 863 (establishes modern standard for method‑of‑execution Eighth Amendment claims)
- Baze v. Rees, 553 U.S. 35 (plurality establishing comparative framework for method‑of‑execution challenges)
- Bucklew v. Precythe, 139 S. Ct. 1112 (clarifies burden: inmate must identify feasible, readily implemented alternative that significantly reduces risk)
- In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. en banc) (requires more than speculative access to an alternative drug; defines “readily available”)
- Chavez v. Fla. SP Warden, 742 F.3d 1267 (11th Cir.) (drug possessed by other states but not shared is not an available alternative)
- New Hampshire v. Maine, 532 U.S. 742 (judicial estoppel doctrine and typical factors for its application)
- Nelson v. Campbell, 541 U.S. 637 (distinguishes claims that imply the invalidity of the sentence)
- Hill v. McDonough, 547 U.S. 573 (procedural vehicle for method‑of‑execution challenges)
- Edwards v. Balisok, 520 U.S. 641 (limits §1983 relief when success would imply invalidity of sentence)
- In re Campbell, 874 F.3d 454 (6th Cir.) (pre‑Bucklew circuit guidance on vehicle and method‑of‑execution claims)