In Re Lewis Williams, Jr.

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In re Lewis WILLIAMS, Jr., Petitioner-Appellant.

No. 04-3014.

United States Court of Appeals, Sixth Circuit.

Jan. 12, 2004.

355 F.3d 811

hе had registered sixteen domain names; (3) the fact that he offered no goods or services on the site; and (4) the fact that he had no intellectual property rights in the site. See id. at 114.

Although Grosse‘s actions would arguably satisfy three of the four aforementioned factоrs, she does not fall within the factor that we consider central to a finding of bad faith. She did not register multiple web sites; she only registered one. Further, it is not clear to this Court that the presence of simply one factor that indicates a bad faith intent to profit, without morе, can satisfy an imposition of liability within the meaning of the ACPA. The role of the reviewing court is not simply to add factors and place them in particular categories, without making some sense of what motivates the conduct at issue. The factors are given to courts as a guide, not as a substitute for careful thinking about whether the conduct at issue is motivated by a bad faith intent to profit. Perhaps most important to our conclusion are, Grosse‘s actions, which seem to have been undertaken in the spirit of informing fellow consumers аbout the practices of a landscaping company that she believed had performed inferior work on her yard. One of the ACPA‘s main objectives is the protection of consumers from slick internet peddlers who trade on the names and reputations of established brands. The practice of informing fellow consumers of one‘s experience with a particular service provider is surely not inconsistent with this ideal.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment in favor of Grosse.

Stephen A. Ferrell, Gregory W. Meyers, Ruth L. Tkacz, Public Defender‘s Office, Ohio Public Defender Commission, Columbus, OH, Robert A. Dixon, Cleveland, OH, for Appellants.

Before KENNEDY, SUHRHEINRICH and MOORE, Circuit Judges.

KENNEDY, Circuit Judge.

Petitioner Lewis Williams filed this § 1983 action in the district court challenging the method of administering the lethal injection of drugs at his execution as a constitutional violation of his right to be free from cruel and unusual punishment and seeking an injunction to postpone his execution scheduled for January 14, 2004. The district court treated petitioner‘s complaint as a second, or successive, petition¹ and transmitted it to the court.

The § 1983 action challenging the method of administering drugs at his exeсution is, as he concedes, to be treated as a second habeas action under current Sixth Circuit decisions. The majority of the panel would deny permission to file a second habeas on the grounds presented. They have never been presented tо the state court, so there has been no exhaustion. The affidavits in support of a preliminary injunction, in essence, state that if lethal injection is not administered properly, petitioner could experience severe pain without displaying any sign of it. Responsive affidavits detailing the procedure indicate that the concern expressed by petitioner is so unlikely as to be immeasurable.

Petitioner essentially bases his request for a stay of execution on the Supreme Court having granted certiorari in

Nelson v. Campbell, U.S. , 124 S.Ct. 835, 157 L.Ed.2d 692 (2003). Nelson involves а case involving a prisoner facing the death penalty whose peripheral veins were unavailable and who had to be sedated through the central venous system. The state in Nelson chose the “cut down” technique which allegedly requires more experiencе and medical training than the usually-performed ‍‌‌‌​‌​​​‌‌​‌‌‌​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌‌‌​​​‌​​​​‌‍per cutaneous technique. The Court granted certiorari to answer the following question:

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 prоcedures for carrying out his execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254?

The Court has also acted on at least two cases involving similar last-minute challenges to the method of execution of by injection, both from the Fourth Circuit. In

Rowsey v. Beck, No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate granted,

Beck v. Rowsey, U.S. , 124 S.Ct. 980, 157 L.Ed.2d 811 (2004), the court vacated the stay granted by the Fourth Circuit. In

Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003), motion to vacate stay denied,

Johnson v. Reid, U.S. , 124 S.Ct. 980, 157 L.Ed.2d 810 (2003), the district court had granted an injunction staying an execution. The court of appeals affirmed. The Supreme Court denied the states motion to vacate. Of most relevance to the prеsent petition, however, is the Court‘s denial of application for stay of execution in

Zimmerman v. Johnson, U.S. , 124 S.Ct. 979, 157 L.Ed.2d 792 (2003). In Zimmerman, the Fifth Circuit affirmed the dismissal of the action on the procedural ground that § 1983 is not an appropriate vehicle for challenges to the method of execution and held that applicant should have proceeded by applying for a writ of habeas corpus. The four Justices that dissented from the denial of stay stressed that the Court should stay execution until Nelson was decided. The majority, however, clearly disagreed. We understand this decision to mean that this Circuit is free to follow its prior precedent with regard to this question until the Supreme Court issues its decision in Nelson.

Accordingly, the majority of the panel is of the opinion that we should continue to follow Sixth Circuit precedent in

In re Sapp, 118 F.3d 460, 464 (6th Cir.1997) and treat this case as a second, or successive, petition. The district court properly transferred the case as filed to this court so it could pass on it as a request for a second petition. We decline to permit the claim to be filed as a second petition. It has nеver been presented to a state court. Indeed, petitioner does not seriously claim it meets the requirements for a second petition.

Petitioner asks that we stay our decision to ‍‌‌‌​‌​​​‌‌​‌‌‌​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌‌‌​​​‌​​​​‌‍await the decision of the Supreme Court in Nelson. He proffers affidavits from a physician who states that if thiopental sodium is not administered for a sufficient length of time to complete the other steps of the procedure, petitioner will suffer severe pain. A lay person who experienced this difficulty describes the pain in her affidavit. In response, the state submits an affidavit from an extremely well-qualified physician explaining why, in the dose to be used by the state, two (2) grams, the condition described by plaintiffs expert will almost certainly not occur. He notes that when thiopental sodium is commonly used for general anesthesia in surgery, it is normally administered in a dose of 300 to 400 milligrams.

Petitioner‘s motions for remand to the district court, for preliminary injunctive relief and for stay of execution are DENIED.

In order that petitioner have counsel to pursue any possible habeas rеlief from the order, Stephen A. Ferrell is appointed to represent petitioner on such proceedings.

SUHRHEINRICH, Circuit Judge, concurring.

I concur in Judge Kennedy‘s opinion. However, I would simply direct the Warden to carry out the execution in the manner advocated by the petitioners’ expert. The petitioners do not challenge the fact of their execution; they challenge only the method currently employed by the State of Ohio. By affidavit they have proposed an alternative method which they advocate does not constitute cruel and unusual punishment. The affidavit of the petitioners’ expert, Dr. Mark J.S. Heath, which is incorporated into the petitioners’ “Motion to Stay and Abey Proceedings,” states in relevant part:

J) The benefits of thiopental in the operating room engender seriоus risks in the execution chamber. Based on the information I have available to me concerning Ohio‘s execution protocol, a two (2) gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. By contrast, based on my research and the research of others into the procedures for executing human beings by means of lethal injection, the original design of the lethal injection protocol called for the continuous intravenous administration of an ultrashort-acting barbituratе. Based on my research and the research of others, the central elements of the lethal-injection procedure used in Ohio is similar to the one adopted many years ago in Oklahoma (which, it appears, many states used as a model without substantive independent research). Oklahoma requires the “continuous intravenous administration of an ultrashort-acting barbiturate” (Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014A). It does not appear that Ohio‘s protocol includes this “continuous” requirement. The usе of a continuous administration of the ultrashort-acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancuronium and potassium chloride. It is my opinion based on a reasonable degree of medical certаinty that the failure to require a continuous infusion of thiopental places the condemned inmate at a needless and significant risk for the conscious experience of paralysis during the excruciating pain of both suffocation and the intravenous injection of potassium chloride.

Motion to Stay and Abey Proceedings, at 13 (quoting Heath Affidavit ¶ 17).

If the Warden is ordered to follow the method advanced by the petitioners’ chosen expert, then the procedural question of whether the claim is properly considеred a § 1983 action or a successive habeas petition will be moot, as the petitioners would have received the relief that they request.

MOORE, Circuit Judge, dissenting.

I believe that the proper course of action is ‍‌‌‌​‌​​​‌‌​‌‌‌​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌‌‌​​​‌​​​​‌‍to grant the preliminary injunction staying the execution of Williams. The Supreme Court‘s grant of certiorari in

Nelson v. Campbell, U.S. , 124 S.Ct. 835, 157 L.Ed.2d 692 (2003), calls into question our decision in

In re Sapp, 118 F.3d 460 (6th Cir.1997), upon which the district court relied in transferring the action to us as a second or successive habeas petition pursuant to 28 U.S.C. § 1631. In Sapp, a panel of this court held that a challenge to a method of execution brought as аn action under 42 U.S.C. § 1983 constitutes a habeas corpus petition.

Sapp, 118 F.3d at 464. Sapp relied upon an earlier Supreme Court decision,

Gomez v. United States Dist. Ct. for the N. Dist. of Cal., 503 U.S. 653, 653-54, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), in reaching its decision. Now, the Supreme Court has undertaken to resolve the following question: “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 рrocedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254?”

Nelson, 124 S.Ct. at 835 (emphasis added). The Supreme Court‘s ruling could directly overrule Sapp, confirm the earlier high court holding upon which Sapp relied, or reach some middle ground, but naturally we will not know the answer tо this question for several months.

It would be inappropriate and unjust to permit Williams‘s execution to occur when the Supreme Court has yet to decide whether Williams has a right to present his claim as a § 1983 action. The Supreme Court, the Sixth Circuit, and other circuits have аll granted stays of execution ‍‌‌‌​‌​​​‌‌​‌‌‌​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌‌‌​​​‌​​​​‌‍when the Supreme Court has taken a case to resolve an important issue germane to the action.

McFarland v. Scott, 512 U.S. 849, 853, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994);

Selvage v. Collins, 494 U.S. 108, 109, 110 S.Ct. 974, 108 L.Ed.2d 93 (1990);

Steffen v. Tate, 39 F.3d 622, 623 (6th Cir. 1994);

Mobley v. Head, 306 F.3d 1096, 1097 (11th Cir.200). Recently, the Fourth Circuit stayed the execution of two prisoners, one from Virginia and one from North Carolina, pending the Supreme Court‘s decision in Nelson after those prisoners brought § 1983 claims apparently identical to Williams‘s. See

Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003) (order granting preliminary injunction);

Rowsey v. Beck, No. 04-6073 (4th Cir. Jan. 8, 2004) (order denying motion to vacate stay of execution granted by the district court). The Supreme Court denied a motion to vacate the stay in

Reid, Johnson v. Reid, U.S. , 124 S.Ct. 980, 157 L.Ed.2d 810 (2003), yet it vacated the stay of execution in Rowsey, over the dissent of four Justices.

Beck v. Rowsey, U.S. , 124 S.Ct. 980, 157 L.Ed.2d 811 (2004). The disparate treatment of these two cases by the Supreme Court is difficult to reconcile given their similarity; the district court in Rowsey stated that the issue there was “factually and procedurally similar, if not identical” to the issue in Reid.

Rowsey v. Beck, No. 5:04-CT-04-BO, at 4 (E.D.N.C. Jan. 7, 2004). The Supreme Court‘s denial of an application for a stay of execution in

Zimmerman v. Johnson, U.S. , 124 S.Ct. 979, 157 L.Ed.2d 792 (2003), does not provide any further guidance. Without further development of the reasons for the Supreme Court‘s actions, we should exercise prudence and caution in the face of ambiguity when the consequences of our decision have such gravity.

At this stage, the question of whether Williams has properly filed a second оr successive habeas petition pursuant to the provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrelevant because the predicate issue of whether his § 1983 claim is properly construed as a second or successive petition is pending before the Supreme Court. Equally unimportant is a consideration of the merits of Williams‘s § 1983 action—whether the State of Ohio‘s procedures for lethal injection, which include the allegedly improper use of the barbiturate, thiopental sodium, and the administration of a neuromuscular blocking agent, pancuronium bromide, that is banned ‍‌‌‌​‌​​​‌‌​‌‌‌​‌​​​‌​​​‌​​‌​‌​‌‌​‌​‌‌‌‌​​​‌​​​​‌‍for veterinary use by several states, constitute a cruel and unusual punishment in violation of the Eighth Amendment. The resolution to this question is not appropriately considered now; if the Supreme Court‘s forthcoming decision in Nelson v. Campbell demonstrates that Williams‘s action is a § 1983 action and not a second or successive habeas petition, the district court must first consider his claim. In any event, the contrasting views of the physicians’ affidavits presented by Williams and the State of Ohio serve to demonstrate a serious question regarding the merits. Nonetheless, here we simply must decide whether Williams‘s execution can go forward given that the Supreme Court may determine that Williams has the opportunity to present his grievance before the district court as a § 1983 action. It should not.

In the interest of procedural fairness, I would grant the motion for a preliminary injunction to stay the execution and hold the case in abeyanсe. It would be cause for great regret if Williams were executed on Wednesday morning only to have the Supreme Court determine several months later that Williams in fact deserved a chance to pursue his action in federal district court.

CORNELIA G. KENNEDY

UNITED STATES CIRCUIT JUDGE

Notes

1

The complaint also sought similar relief for John Glenn Roe scheduled for execution February 3, 2004.

Case Details

Case Name: In Re Lewis Williams, Jr.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jan 12, 2004

Citation: 359 F.3d 811

Docket Number: 04-3014

Court Abbreviation: 6th Cir.