Christopher Eugene BROOKS, Intervenor Plaintiff-Appellant, v. WARDEN, Commissioner, Alabama DOC, Defendants-Appellees.
No. 15-15732.
United States Court of Appeals, Eleventh Circuit.
Jan. 19, 2016.
812 F.3d 812
Because the district court lacked subject matter jurisdiction over Salmona‘s claim, its judgment is VACATED and the case is REMANDED with instructions to dismiss for lack of jurisdiction.
MARTIN, Circuit Judge, concurring:
I agree with the analysis of Part II of the Majority opinion, which leads me to the conclusion that Mr. Salmona is not entitled to relief. Mr. Salmona materially breached the plea agreement he seeks to enforce, so the government may be entitled to rescind it. Mandamus jurisdiction is not therefore warranted here. Unlike in the Arnett case relied upon by Mr. Salmona, he has no clear right to the requested relief. I join the Majority in VACATING and REMANDING with instructions to dismiss for lack of jurisdiction.
John Anthony Palombi, Christine A. Freeman, Spencer Jay Hahn, Federal Defender Program, Inc., Montgomery, AL, for Intervenor Plaintiff-Appellant.
James Clayton Crenshaw, Thomas R. Govan, Jr., Stephanie Reiland, Lauren Ashley Simpson, Luther J. Strange, III Alabama Attorney General‘s Office, Montgomery, AL, for Defendants-Appellees.
Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
Appellant Christopher E. Brooks, an Alabama death row inmate, appeals from the district court‘s denial of his emergency motion to stay execution for the 1992 rape, burglary, robbery, and murder of Jo Deann Campbell. He has also filed with this Court an emergency motion for a stay of execution. After the state moved to set an execution date, Brooks intervened pursuant to
After Brooks recently intervened in the consolidated action and filed a complaint largely repeating the earlier plaintiffs’ allegations, he filed an emergency motion last month in the district court to stay his execution, which is now scheduled for January 21, 2016 at 6:00 pm CST. The trial court denied his motion for a stay, explaining that Brooks had not shown a substantial likelihood of success on the merits of his Eighth Amendment claim because: (1) he failed to show an available and feasible alternative method of execution, as required by controlling case law; and (2) he failed to show that he brought this claim within the applicable two-year statute of limitations. Moreover, the district court determined that the balance of equities weighed against granting a stay because Brooks unreasonably delayed bringing his lawsuit until it was too late to resolve the merits of his claim without staying his execution. After carefully reviewing the record before us, we can discern no abuse of discretion and, accordingly, affirm the judgment of the district court, and also deny Brooks‘s emergency motion to stay filed in this Court.
I.
The facts of the rape, burglary, robbery, and murder that Brooks committed have been laid out in several earlier decisions of the Alabama state courts. See Brooks v. State, 695 So.2d 176, 178-79 (Ala. Crim. App.1996) (”Brooks I“), aff‘d, 695 So.2d 184, 186-87 (Ala.1997) (”Brooks II“); see also Brooks v. State, 929 So.2d 491, 494-95 (Ala.Crim.App.2005) (”Brooks III“). As the state court detailed, on December 31, 1992, Jo Deann Campbell was found bludgeoned to death, naked from the waist down, with semen in her vagina. Brooks was later seen driving the victim‘s car, and was arrested while in possession of her car keys and credit card. Law enforcement authorities confirmed that he had cashed the victim‘s paycheck and had pawned some items missing from her apartment. Brooks also admitted to having had sex with Ms. Campbell, which was corroborated by DNA evidence.
After trial in Jefferson County, Alabama, a state jury convicted Brooks of three counts of capital murder for killing the victim during the course of a rape, during the course of a robbery, and during the course of a burglary. Following the penalty phase, the jury recommended that Brooks be sentenced to death by a vote of 11 to 1, and an Alabama circuit court sentenced Brooks to death. His conviction and death sentence were affirmed on direct appeal, see Brooks I, 695 So.2d at 176; Brooks II, 695 So.2d at 184, and the United States Supreme Court denied his petition for certiorari. Brooks v. Alabama, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997). On collateral review, the Alabama state court denied his Rule 32 petition, and the Alabama Court of Criminal Appeals affirmed. Brooks III, 929 So.2d at 515. Brooks then petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus pursuant to
On September 10, 2014, the Defendants (collectively, the Alabama Department of
While Glossip was working its way through the courts, a consolidated action was being litigated in the United States District Court for the Middle District of Alabama. That group of cases began as one lawsuit originally filed on April 6, 2012, when an Alabama death row inmate sued pursuant to
Although the consolidated action had been pending in district court since 2012, Brooks did not move to intervene until November 2, 2015, more than three-and-a-half years after the suit was commenced, and forty days after the state moved the Alabama Supreme Court to set an execution date for Brooks. On November 23, 2015, the district court granted the motion to intervene. Earlier on the same day, the Alabama Supreme Court had granted the state‘s motion and set Brooks‘s execution for January 21, 2016.
On December 4, 2015, Brooks filed an Emergency Motion for Stay of Execution. The district court denied the application on December 22, 2015. In a thorough and well-reasoned order, the district court explained that Brooks had not established a substantial likelihood of success on the merits of his Eighth Amendment claim because he failed to adequately show an available and feasible alternative method of execution, as required by Glossip. Among other things, the district court determined that Brooks had not sufficiently demonstrated that two of his proposed single-injection alternatives—sodium thiopental and pentobarbital—are readily available to the ADOC. The court added that Brooks had also failed to adequately demonstrate that his third proposed alternative—midazolam alone—is an effective alternative. In addition, the district court concluded that Brooks had not shown a substantial likelihood of success on the merits because his Eighth Amendment claim was time-barred as of 2004, and he had not sufficiently demonstrated that the clock should have been reset when Alabama switched to the current protocol. Finally, the district court held that because Brooks unreasonably delayed bringing this lawsuit, the balance of equities did not lie in Brooks‘s favor for a stay. Brooks now appeals the district court‘s denial of his emergency motion for a stay and also moves this Court on an emergency basis for a stay of execution “to allow measured consideration of the issues of
II.
It is by now hornbook law that a court may grant a stay of execution only if the moving party establishes that: “(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest.” See Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011) (emphasis added). Moreover, we review the denial of a stay of execution only for abuse of discretion. Id.
In an Eighth Amendment challenge to the lethal injection protocol used by Oklahoma, the Supreme Court recently held:
[P]risoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is ““sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.‘” To prevail on such a claim, “there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.‘” . . . [P]risoners “cannot successfully challenge a State‘s method of execution merely by showing a slightly or marginally safer alternative.” Instead, prisoners must identify an alternative that is “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.”
. . . [T]he requirements of an Eighth Amendment method-of-execution claim [are summarized] as follows: “A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State‘s lethal injection protocol creates a demonstrated risk of severe pain. [And][h]e must show that the risk is substantial when compared to the known and available alternatives.”
Glossip v. Gross, — U.S. —, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) (citations and emphasis omitted); see also Baze v. Rees, 553 U.S. 35, 50, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion); Gissendaner v. Comm‘r, Ga. Dep‘t of Corr., 779 F.3d 1275, 1283 (11th Cir.2015). In Glossip, the Supreme Court applied this test and held that the district court did not commit clear error when it found that midazolam (as the first drug in Oklahoma‘s three-drug protocol) is highly likely to render a person unable to feel pain during an execution, and, therefore, that the plaintiff failed to sustain his burden under the
In the face of Glossip, Brooks‘s claim now is that the three-drug protocol creates a substantial risk of severe pain when compared to Brooks‘s proposed single-injection alternatives. We agree with the district court, however, that Brooks has not established a substantial likelihood that he would be able to show that the risk is “substantial when compared to the
In his intervenor complaint, Brooks has alleged that midazolam—the first of the three drugs used in Alabama‘s execution protocol—will not properly anesthetize him so as to prevent him from feeling an “unconstitutional level of pain” associated with the injection of the other two drugs that will kill him (rocuronium bromide and potassium chloride). He also claims that midazolam may exhibit a “ceiling effect“—that is, at a certain point, an increase in the dose administered will not have any greater effect on an inmate. Brooks says that there are three alternative methods of execution available to the ADOC that significantly reduce the risk of an unconstitutional level of pain: (1) a single injection of pentobarbital; (2) a single injection of sodium thiopental; or (3) a single injection of midazolam. On this record, we are unpersuaded.
As for the first option, Brooks provides three pieces of evidence in support of his allegation that a single dose of pentobarbital is a known, available, and safer alternative method of execution. First, he cites news articles showing that in other states (Texas, Colorado, Ohio, Georgia, Missouri, Mississippi, Oklahoma, South Dakota, and Pennsylvania), nearly forty inmates have been executed using “a single bolus of pentobarbital, making it the most common method of execution in the United States.” But the fact that the drug was available in those states at some point over the past two years does not, without more, make it likely that it is available to Alabama now. Second, he cites a bare comment made by counsel for the Alabama Department of Corrections during a status conference in another case in May 2014.2 But that alleged admission—which the ADOC construes as saying that compounded pentobarbital was available to certain states, but not necessarily to Alabama—is twenty months out of date at this point.
Indeed, in more recent filings, the ADOC has said that it has been unable to
As for a second alternative, Brooks proposes the use of sodium thiopental, and alleges that it is available based on the representations of three states—Nebraska, Ohio, and Texas—that they could legally obtain the drug. Brooks cites as support just a newspaper article in which the governor of Nebraska announced that the state had purchased sodium thiopental from India.3 He also cites a second news article reporting that Texas had received approval from the Drug Enforcement Agency to import sodium thiopental.4 And, finally, he references a letter from Ohio to the Food and Drug Administration (“FDA“) claiming that there are legal ways to import sodium thiopental for use in executions.5
These allegations of availability are not sufficient to satisfy the unambiguous requirement laid out in Glossip. The newspaper assertion that a drug might have been available to others at some other time from India does not show a substantial likelihood that the drug is “readily available” to the ADOC—especially since the very news articles Brooks cites questioned both the purity and the legality of the imported drugs,6 reported that federal agents seized Arizona‘s shipment of the drug and would not “budge[ ]” on releasing it,7 and emphasized that many states had
Although Brooks contends that a single dose of sodium thiopental would constitute an effective lethal injection protocol, we are uncertain whether it has ever been used before as a stand-alone execution drug. Brooks alleges that “experts [have] stated” that a sufficient dose of sodium thiopental “would cause death without need of a paralytic or potassium chloride,” but he cites no support for that allegation. Furthermore, while he alleges that it was “the primary drug used in three-drug protocols for over a decade,” he does not say that it has ever been used as the sole drug in a lethal injection execution. Without some palpable evidence that sodium thiopental is currently “known and available” to the ADOC and would constitute a viable alternative method of execution—and Brooks has offered us only two newspaper articles and a letter to the FDA—there is nothing remotely resembling a showing of a substantial likelihood that Brooks could satisfy this prong of the Glossip test.
Brooks‘s third proposed alternative is to use midazolam alone, and not in concert with two other drugs. Alabama already uses midazolam as the first drug in its three-drug cocktail. And it is undisputed that midazolam is currently available to the ADOC. But the only evidence that Brooks has provided us regarding the efficacy of a single-drug execution protocol using midazolam is a citation to Glossip, where the Court noted that the district court had found that “a massive 500-milligram dose” of midazolam “will likely cause death in under an hour.” Glossip, 135 S.Ct. at 2741 n.4. Brooks admits in his complaint that a single drug lethal injection protocol using midazolam “has not previously been used,” and “there are still questions concerning whether the ceiling effect of midazolam would preclude a fatal dose of the drug.” Still, Brooks alleges that the defendants cannot justify using the second and third drug in the execution protocol given the increased risk of pain that they pose.
On this record, Brooks has failed to show a substantial likelihood that a single-drug execution protocol using only midazolam is a feasible, readily implementable, and significantly safer method of execution. For starters, Brooks‘s admissions that a midazolam-only protocol has never been used in an execution and, furthermore, that midazolam‘s ceiling effect may render it non-lethal deeply undercut his
Furthermore, there is a fundamental tension in Brooks‘s argument. On the one hand, Brooks seems to concede that midazolam will render him deeply unconscious and insensate to pain, resulting in a pain-free death. On the other hand, he contends that midazolam will not render him sufficiently insensate to pain when followed by an injection of the other two drugs in Alabama‘s protocol. We do not see how he can argue, without evidentiary support, that midazolam alone can be used to render him unconscious and painlessly kill him, and in the same breath say that the drug ought not be used as the first drug because it will not render him insensate when used with two other drugs. The bottom line is that Brooks has failed to adequately show that a single-injection midazolam protocol is “an alternative that is feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain,” when compared to Alabama‘s current three-drug protocol. Id. at 2737 (quotation omitted).
In short, Brooks has failed to show a substantial likelihood that there is a known, readily available, and materially safer method of execution. Nothing we say should be read as holding that single-injection drug protocols could not offer valid alternatives. Rather, on this record, we hold only that Brooks has failed to show that Alabama‘s three-drug protocol creates “a demonstrated risk of severe pain” and that “that risk is substantial when compared to the known and available alternatives.” Id. The district court did not abuse its discretion in denying the motion for stay.10
III.
We are constrained to affirm the district court‘s denial of Brooks‘s motion for stay for yet another reason—there is no substantial likelihood of success on his Eighth Amendment claim because it is, as the district court court plainly found, time-barred. It is well settled 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 v. Allen, 515 F.3d 1168, 1174 (11th Cir.2008). Our precedent makes clear that a “substantial change” is one that “significantly alter[s] the method of execution.” Gissendaner, 779 F.3d at 1282.
The statute of limitations applicable to Brooks‘s Eighth Amendment claim is two years. See
Brooks argues, however, that Alabama‘s switch on September 11, 2014, to a protocol using midazolam as the first drug signals a “substantial change” in the protocol that operates to reset the statute-of-limitations clock. We are unpersuaded.
It is undisputed that Alabama has used a three-drug protocol since it began performing executions by lethal injection in 2002. Brooks also admits that potassium chloride has always been the third drug in the protocol, and that the second drug has always been a paralytic—either pancuronium bromide or rocuronium bromide. But Alabama has changed the first drug twice: From 2002 until April 6, 2011, Alabama used sodium thiopental as the first drug in the three-drug sequence. From 2011 to September 10, 2014, it used pentobarbital as the first drug. And since September 11, 2014, it has used midazolam as the first drug.
The crux of Brooks‘s argument is that the three-drug protocol Alabama imple
Moreover, as the Supreme Court recognized in Glossip, “numerous courts have concluded that the use of midazolam as the first drug in a three-drug protocol is likely to render an inmate insensate to pain that might result from administration of the paralytic agent and potassium chloride.” 135 S.Ct. at 2739-40 (citing, e.g., Chavez v. Florida SP Warden, 742 F.3d 1267 (11th Cir.2014); Howell v. State, 133 So.3d 511 (Fla.2014)). The Supreme Court pointed out that midazolam had been used “without any significant problems” in twelve executions, 135 S.Ct. at 2746, and that testimony from both sides supported the district court‘s conclusion that midazolam can render a prisoner unconscious and insensate during the remainder of a three-drug procedure, id. at 2741. Indeed, the very three-drug protocol approved by the Supreme Court in Glossip is the same one Alabama will use here. Id. at 2734-35. Brooks has given us no reason to believe that Alabama‘s use of midazolam in Alabama‘s three-drug protocol would lead to any different result than it has elsewhere. Nor, more to the point, has he established a substantial likelihood that the substitu
IV.
We offer a final comment on the effect of Brooks‘s delay in bringing a
The district court squarely found that Brooks had exhibited “unreasonable, unnecessary, and inexcusable delay in bringing suit” that prevented his method of execution claim from being adjudicated without granting a stay of execution. Therefore, applying a strong presumption against granting equitable relief, it found that the equities weighed against granting a stay of execution. We review the district court‘s finding that Brooks‘s delay was unnecessary and inexcusable for clear error. Grayson, 491 F.3d at 1324-25.
The district court summarized Brooks‘s delay this way:
The chronology of Brooks‘s post-conviction litigation time-line and other significant developments reflect that his November 2, 2015 motion to intervene in the method-of-execution challenge presented in this Midazolam Litigation comes: (1) nineteen months after the U.S. Supreme Court denied certiorari on Brooks‘s habeas petition; (2) fourteen months after the State of Alabama announced it was changing its execution protocol by substituting midazolam for pentobarbital as the first drug administered in the three-drug, lethal-injection sequence; (3) four months after Glossip was decided; (4) five weeks after the State moved (for a second time) to set an execution date for Brooks; (5) a year or more after his co-Plaintiffs filed in the Midazolam Litigation . . . ; and (6) eleven weeks and four days prior to his January 21, 2016 execution date.
Doc. 93 at 30.
Brooks does not challenge any of these facts, but proffers a laundry list of reasons to explain why his delay prior to challenging Alabama‘s execution protocol should be excused. In short, he argues that he had no reason to challenge Alabama‘s protocol because other inmates were already litigating Eighth Amendment challenges, and he had “no reason to believe” that the state would seek to execute him while there were ongoing challenges to its execution protocol.
Brooks insists, nevertheless, that the state has contributed to the delay in this case and, therefore, it cannot rely on his own unreasonable delay to defeat his motion for a stay. He first faults the state for trying to “force the District Court to take action” in the Midazolam Litigation, and then accuses the state of attempting to “avoid any type of hearing on the merits of its execution protocol.” However, in its order denying the motion to stay, the district court explained that the decision to delay the hearings in the Midazolam Litigation until April 2016 was needed due to the discovery schedule, and that the delay was not objected to by the plaintiffs. In essence, Brooks is faulting the state for not accommodating him by waiting to seek an execution date until all outstanding Eighth Amendment challenges by all plaintiffs to its protocol are resolved. Nothing in the record suggests that the state prevented Brooks from filing a challenge to Alabama‘s execution protocol or from joining a long-existing challenge at a time when his suit could have been considered on the merits. The district court did not commit clear error when it found that Brooks was responsible for his delay in seeking to challenge the execution protocol.
Brooks still argues that the equities favor a stay because he will suffer irreparable harm if he is executed, whereas the state will only suffer the minimal inconvenience of having to postpone his hearing until after the Midazolam Litigation evidentiary hearing. But, as the Supreme Court has recognized, the state, the victim, and the victim‘s family also “have an important interest in the timely enforcement of [Brooks‘s] sentence.” Hill, 547 U.S. at 584, 126 S.Ct. 2096. After all, Brooks raped and murdered Jo Deann Campbell on December 31, 1992, and he was convicted of three counts of capital murder by a jury and sentenced to die for his crimes in 1993. Brooks‘s delay in asserting his rights undermines his argument because, “[i]f [he] truly had intended to challenge Alabama‘s lethal injection protocol, he would not have deliberately waited to file suit until a decision on the merits would be impossible without entry of a stay or an expedited litigation schedule.” Grayson, 491 F.3d at 1326; Jones v. Allen, 485 F.3d 635, 640 (11th Cir.2007) (subsequent history omitted) (By waiting so long “to file his challenge to the State‘s lethal injection protocol, Jones leaves little doubt
V.
In sum, Brooks has failed to show a substantial likelihood that he will succeed on the merits of his Eighth Amendment challenge for two reasons. First, he has failed to establish (as he must) a substantial likelihood that there are readily available alternative methods of execution that pose a substantially lower risk of severe pain relative to Alabama‘s current lethal injection protocol. And second, he has not established a substantial likelihood that his Eighth Amendment claim was brought within the two-year statute of limitations. Finally, given his unnecessary and unjustifiable delay in challenging Alabama‘s lethal injection protocol, he has not established that the equities favor granting his requested stay. For each of these independent reasons, we are satisfied that the district court did not abuse its discretion in denying Brooks‘s motion for a stay of execution, and that his emergency motion for stay filed in this Court must be denied.
AFFIRMED AND MOTION FOR STAY OF EXECUTION DENIED.
Notes
The Court: But [pentobarbital is] available through compounding companies or compounding agencies?
Counsel for ADOC: It is, Your Honor.
See Status Conference, Arthur v. Myers, No. 2:11-cv-00438-WKW-TFM (M.D.Ala. May 19, 2014), Doc. 171.