*1 Larry Eugene MANN, Plaintiff-
Appellant, PALMER, capacity
John in his official
as the Warden of Florida State Pris
on, Secretary, Department Florida
Corrections, Defendants-Appellees.
No. 13-11349-P. Appeals,
United Court States
Eleventh Circuit. *2 DeLiberato, Marie-Louise
Maria E. Parmer, Re- Capital Samuels Collateral Counsel, FL, prohibition for Plaintiff- under the of cruel and unusual gional Tampa, Appellant. Amendment, punishment Eighth protocol approved the lethal Dittmar, Katherine
Carol Marie Vickers the State of Florida. See Blanco, Office, FL, Tampa, Atty. Gen.’s *3 complaint § alleged U.S.C. 1983. The Defendants-Appellees. pentothal, the use of sodium also known as thiopental, drug sodium as the first three-drug protocol created a substantial harm risk serious because the execu- DUBINA, Judge, Before Chief and adequate training expe- tioners lacked and MARTIN, Judges. PRYOR and Circuit store, mix, prepare, rience to and adminis- PRYOR, Judge: Circuit drug; ter the and the State of Florida Larry Eugene kidnapped and safe, current, adequate supply lacked 1980, ten-year-old girl murdered a and a pentothal. complaint of sodium The also trial Florida court convicted and sentenced alleged that pancuronium the use of bro- him appellate to death. After and collater- drug three-drug mide as the second in the review, again al the Florida courts sen- protocol substantially increased the risk tenced Mann to death in 1983 and 1990. that Mann during would be conscious 1, 2013, On March signed the Governor execution and convey unable to the tortu- death warrant Mann and scheduled his pain suffering rous experienced 10, 2013, April p.m. execution for at 6:00 legitimate served no purpose the execu- Mann then filed in the district court a civil procedure. alleged tion And the complaint challenge action to the method of execution potassium the use of chloride as the in Florida as cruel and unusual under the three-drug protocol final Amendment, Eighth § 42 U.S.C. pain causes torturous to an inmate if the though even nearly had filed a iden- adequately inmate is not anesthetized dur- complaint tical which the district administration, protocol its and the court had dismissed 2011. On adequate safeguards lacked for its admin- 2013, the district court dismissed Mann’s complaint alleged istration. The also complaint new for failure to state a claim. protocol adequately not did define the 12(b)(6). See Fed.R.Civ.P. Mann now has person carry out a central venous line moved stay this Court for a of execution placement if peripheral venow access is not expedited appeal consideration of his possible; protocol did not ade- complaint of the dismissal of his for failure quately provide for a qualified trained and to state a claim. DENY We the motion to individual to determine whether the in- expedite appeal, and we DENY his surgical plane mate is of anesthesia motion for a of execution.
before the second and
drugs
third
are
I. BACKGROUND
administered;
the State has consis-
tently
employ competent,
failed to
trained
10, 2010,
On December
Mann filed a
executions;
personnel
perform
that the
complaint against
Singer,
Steven
in his
protocol did not allow for an individualized
capacity
official
as the Warden of Florida
specific
assessment of Mann’s
medical con-
Prisons;
McNeil,
State
Walter
his offi-
ditions, including his diabetes and the scar
capacity
Secretary
cial
as the
of the Flori-
forearms,
tissue on his
Corrections;
da
which could com-
Department of
and Does
1-50,
access;
promise
proto-
executioners for the
venous
and that the
State
Florida.
complaint
raised several challenges,
safeguards
col included no
in the event of a
stay of execution after the
denied Mann’s motion to
last minute
intervene
begun.
process
pending
has
action.
January
the district court
On
On March
Mann filed a com-
dismissed Mann’s
sponte
sua
Palmer,
plaint against John
in his official
after the decision of the
without merit
capacity as the Warden of the Florida
Rees,
in Baze v.
Supreme Court
U.S.
Prison,
Crews,
State
and Michael D.
in his
(2008).
1520,
Florida has since amended *4 complaint ences between the in Mann filed drugs drugs two new for the to substitute 2013 and his complaint earlier are new in protocol approved listed in the 2007. allegations pentobarbital is not inter- 8, 2011, adopted a proto- On June Florida changeable with pentothal; sodium pentobarbital col that substituted for sodi- protocol specify the fails to tempera- the drug in pentothal pro- um as the first the 4, 2012, pentobarbital ture at which must be September tocol. And on Florida stored; that, a because of the decision of adopted protocol that substituted vecuro- the nium manufacturer to restrict the sale of pancuronium bromide for bromide as pentobarbital in protocol. capital punish- the second for use ment, Florida expired, must have com- 29, 2012, began On November Mann fil- pounded, illegally-obtained pentobarbi- ing grievances prison with officials about tal that would not be safe to use changes drugs. On December injection protocol. Mann also sub- 3, 2012, the warden denied Mann’s emer- stituted the word “vecuronium” for the gency grievance and instructed him to file “pancuronium” in word grievance an informal first and then a pancuronium about bromide from his earli- grievance. formal Mann then filed his in- complaint, any er but Mann failed to make 2012, grievance formal on December why specific allegations about vecuronium grievance and the warden denied the on materially pan- bromide is different from 26, 2012. Mann filed a December formal curonium bromide. 30, 2012, grievance on December and the grievance January warden denied the on court ordered Mann to file a district a grievance 2013. Mann then filed memorandum addressed whether his Secretary Depart- with the of the Florida complaint judicata new res was barred 27, 2013, January ment of Corrections on as a result of the dismissal of his earlier Department grievance and the denied that complaint. argued his claims February parties were not barred because the were identical, 1- as he had not named Does 18, 2013, February On moved to for the executioners State pending against intervene action argued the action filed 2013. Mann also Department warden and the that chal- complaint presented that the filed lenged protocol in 2011 adopted a different cause of action because amend the that action to chal- changes drugs listed in the two to the lenge protocol adopted too the in 2012. 1, 2013, three-drug protocol. Finally, Mann ar- signed On March the Governor gued that the dismissal death warrant for Mann and scheduled his Baze, 10, 2013, legal at filed in 2010 relied on and the p.m. execution for 6:00 landscape “substantially And on March court had been altered” the district availability motion to amend his and denied Mann’s since Baze because as a feasible alterna- one-drug protocol complaint. rejected The district court three-drug protocol. tive to the challenge three-drug proto- to the grounds col recent on the identified two the defen- The district court ordered unpublished of our decisions Court to Mann’s new response dants to file a rejected challenges to the three- similar complaint. The defendants moved dis- drug protocol in Florida. And the district summary judgment grant miss or that Mann’s grounds their favor on the court denied Mann’s motion to amend be- judicata, complaint was barred res new cause it would be futile. The district court limitations, the failure to the statute of full explained that Mann had received a remedies, exhaust administrative and the clemency proceeding years at ago which upon failure to state claim which relief represented by was counsel and that due granted. could be process require did not the Governor to grant clemency him a proceeding. new March Mann filed a motion On allege a new to amend his arbitrarily
claim that he had been denied II. DISCUSSION *5 updated clemency proceedings by access the Governor before issued Mann’s Mann bears the burden of estab warrant, alleged death and Mann that his lishing stay that he is entitled to a of process rights by due were violated a state stay equita execution. “A of execution is that prohibits capital region- law collateral may grant only ble relief which this Court representing al counsel from him in a civil (1) moving party if the shows that: he has challenges anything action that other than a substantial likelihood of success on the his method of execution. The defendants (2) merits; irreparable injury he will suffer opposed grounds the motion on the (3) issues; injunction stay unless the the dilatory Mann had been new substantially would not harm the other Specifically, claims were futile. the defen- (4) issued, if litigant; injunction the argued updated dants that Mann knew would be public not adverse to the inter clemency proceedings could af- commence 1223, Singer, est.” Valle 655 F.3d ap- ter this denied a certificate of Court (11th Cir.2011). motion at Mann’s fails the pealability petition for the denial of Mann’s step analysis. first of that for a of corpus August writ habeas Mann cannot establish a substantial like- fully and that he was aware of all of First, lihood of success three reasons. the information and his mo- by most of Mann’s claims are barred res tion to amend when he filed the action. Second, judicata. Mann’s claims about the argued defendants also that Mann was previously given clemency proceeding, drugs three-drug protocol new are which right process. and, satisfied his to due by barred statute limitations argued And the defendants that state law not, they if even were Mann has not stated provided appointment indepen- for' the plausible Eighth claims for relief under the clemency dent and Mann counsel had not Third, Amendment. Mann received due counsel, sought appointment of that so the process clemency proceedings pro- capital regional limitations on collateral by vided the Governor. Because Mann counsel did establish the denial of due cannot establish a substantial likelihood of process. complaint, success on the merits of his we deny Mann’s motion for a of execu-
On the district court granted the defendants’ motion to dismiss tion. identity parties. Are v. Laney,
A. Most Mann’s Claims
See Welch
(11th Cir.1995)
Barred
Res Judicata.
57 F.3d
(“[W]here
plaintiff brings
an action
alleged
the claims
Most of
against public
officialin his official capac-
judica-
are barred
res
ity,
against
the suit is
the office that offi-
Circuit, party
seek
ta. “In the Eleventh
represents,
cial
and not the official him-
judicata]
invoke the doctrine
res
[of
self.”).
propriety by satisfying
its
must establish
(1)
prior
four initial elements:
decision
Mann also contends that his claims
by a court of
must have been rendered
action,
do not involve the same cause of
(2)
jurisdiction;
there must
competent
disagree.
determining
but we
“In
whether
merits;
final judgment
have been a
on the
same,
action
the causes of
are the
a court
(3)
par
cases must involve the same
both
actions,
compare
must
substance
(4)
privies; and
both cases
ties or their
said,
general,
not their form.
It is now
must involve the same causes of action.”
that if a case arises out of the same nucle
Piper
Corp.,
In re
244 F.3d
Aircraft
fact,
operative
upon
us of
or is based
(11th Cir.2001).
next de
“The court
action,
predicate,
same factual
as a former
termines whether the claim in the new suit
really
the two cases are
the same
prior
have been raised in the
was or could
‘claim’ or ‘cause of action’ for
purposes
action;
judicata
yes,
if the answer is
res
judicata.”
Piper,
res
In re
244 F.3d at
analysis,
applies.” Id. Under
1297. Mann’s new
arises out of
dismissal of Mann’s earlier
bars
of operative
the same nucleus
facts as his
new com
most of the claims Mann’s
complaint.
earlier
plaint.
*6
complaints
nearly
Mann’s two
are
Mann concedes that the dismissal of his
identical.
In his latest complaint,
alleg
complaint
earlier
satisfies the first two ele-
es the same
in
constitutional errors
the
judicata,
ments of the doctrine of res
but
injection procedures,
including
the
parties dispute
the
whether Mann’s earlier
potassium
drug
use of
chloride as the third
satisfy
and later actions
the last two ele-
three-drug protocol
each of those ele-
because it will
ments. We address
in
pain
ments
turn.
cause torturous
if
inmate is not
the
sufficiently anesthetized before its admin
argues
the cases do
istration;
protocol
the failure of the
to
parties
not involve the same
because his
experience require
establish a minimum
action
are
first
named defendants who
not
for
of the
in
personnel
ment
some
involved
action,
in
argu
defendants
this
but that
injection process;
the lethal
the failure of
judica-
For
purpose
ment fails.
the
of res
require
place
to
protocol
physician
the
ta, identity
parties
of
is satisfied if the
necessary;
a central venous line if
parties to the second
were either
action
guidelines
absence of
for the exercise of
parties
privity
to the first action or
with
if
problems
discretion
foreseeable
arise
parties.
those
See E.E.O.C. v. Pemco Aer-
execution;
during an
of stan
the absence
(11th
Inc.,
oplex,
383 F.3d
Cir.
procedures
purchase
dardized
for the
2004).
Because Mann’s new
is
chemicals;
administration of
the lack of a
against
Secretary
the Warden and
of the
“medically
of
qualified”
clear definition
Department official
Corrections
their
execution
pertaining
assigned
the two
capacities,
and his earlier
also
ers;
assessing
the means of
consciousness
Secretary
named the Warden and
of the
drug
after the administration of the first
Department of
in their official
Corrections
method of
capacities,
three-drug protocol;
the defendants have established
current,
supply
pentobarbi-
through
adequate
sever-
drug
remote
administration
that dic-
tubing;
procedure
Mann’s new
also makes
al feet of
tal.
bromide,
witness
curtains between the
tates that the
but
allegations about vecuronium
be closed
and execution chamber
room
are about the use of a
those
wrong dur-
something goes
the event
general
and offer no ba-
paralytic
execution;
“consistent
could conclude that vecu-
sis on which we
sufficiently competent
to hire
fail[ure]”
any
manner
operates
ronium bromide
and to react
people
perform
executions
pancuronium
different from
bromide.
during
that occur
an execu-
problems
a substantial like-
Mann cannot establish
tion;
any procedures
the absence
of these
lihood of success on the merits
an individualized assessment of
require
First,
claims
claims for two reasons.
these
inmate;
of the
specific medical conditions
by
are barred
the statute of limitations.
protocols
lack
to address the
and the
Second,
if
even
these claims were
actions that must be taken to re-
medical
limitations,
barred
the statute of
if a
execution is
suscitate an inmate
Mann’s claims would fail on the merits.
during
administration of the
entered
claims all arise out of
drugs.
three
These
Barred
1. Mann’s New Claims Are
operative
alleged
facts
the same nucleus
by the
of Limitations.
Statute
complaint.
It is irrelevant
the earlier
of execution claim
“[A] method
brought many of these claims
that Mann
on the later of the date on which
accrues
of the
under both the Constitution
United
complete,
state review is
or the date on
States,
the Constitution of the State of
capital litigant
subject
which the
becomes
a Florida statute in his new
substantially changed
to a new or
execu
only
complaint, but
under the Constitution
Allen,
protocol.”
tion
McNair
515 F.3d
in his earlier com-
United States
(11th Cir.2008).
Gen.,
Mann’s state
Att’y
plaint. See Maldonado v. U.S.
(11th Cir.2011) (“A
complete
January
review was
664 F.3d
judicata
claim barred
res
if it is
new
Supreme
when the
Court of the United
theory
that was or
legal
based on
could
a writ of
petition
States denied his
action.”).
prior
have been used
Res
Florida
*7
Supreme
certiorari to the
Court of
judicata
relitigating
bars Mann from
these
appeal
entry
on
of
of
third
direct
his
claims.
death sentence. See Mann v.
506
1063, 122
U.S.
L.Ed.2d 368
B. Mann
Establish a
Cannot
Substantial
(1993).
chal
The statute of limitations for
Likelihood
Success on the Merits
of
of
lenges
adoption
to the
lethal
Remaining
Claims in His Com-
began
the method of execution
Florida
plaint.
February
expired
to run on
and
only
brought by
claims
Mann that
-13,
February
Henyard
Sec’y,
v.
by
judicata
are not barred
res
involve the
(11th
Corr.,
Dep’t
543 F.3d
drugs in
new first and second
the three- Cir.2008).
drug protocol.
Mann’s new
that his claims with
contends
challenges
pentobarbital
substitution
respect
drugs
timely
to the new
are
be
pentothal
drug
for sodium
as the first
change
Florida made a substantial
cause
protocol.
alleges
pentobarbi-
He
execution,
the method of
on June
tal increases the risk that he will not be
pentobarbital
when it substituted
as the
sufficiently unconscious before the admin-
three-drug protocol. Spe
first
drugs,
istration of the second and third
safe,
alleges
cifically,
alleges
pentobarbital
and he
that Florida lacks a
dif-
significantly
pentothal
(internal
fers
from sodium
pain
risk
undue
suffering
and
it
because
“is not classified as an ‘ultra
omitted)).
quotation
And, Valle,
marks
short-acting
lipid-
barbiturate’
“is less
we reaffirmed our statement
in DeYoung
soluble”;
FDA-approved
“is not
for use as
that “the mere act of proffering additional
anesthetic,
practice,
and
clinical
it is
reasons not expressly
previous-
considered
anesthesia”;
not used to induce
and “there
ly will not open the door to reconsideration
is no
clinical
pentobarbi-
standard
dose of
question
[statute
limitations]
tal to induce loss of consciousness or loss
panel.”
Valle,
second
See
dismiss Powell, in the district 1261-62; papers pleading and Arthur, F.3d at 674 See solely on the substitu- court, Mann relied at 1304-05. 643 F.3d significant pentobarbital tion of have, hold, it nor could not did Arthur execution that method of change in the a files every inmate who that of period a new running of commenced is pentobarbital the use of challenges alleged that the Mann never limitations. evidentiary hearing to deter- to an entitled pro- in the of the second substitution pentobar- of the substitution mine whether change significant tocol constituted method change a substantial bital is Florida. In- of execution the method already foreclosed We had execution. of that vecuronium deed, alleged never Powell, had where we argument way from any material gov- was differs bromide that an inmate’s held es- Because Valle precedent bromide. prior panel pancuronium our erned for sodi- pentobarbital pentobar- the substitution the substitution tablished that signifi- not constitute did does not consti- pentothal pentothal um bital for sodium the statute purpose of change for the cant the method of change in significant tute F.3d at 1304-05. See 643 of limitations. Florida, claims are execution contends, Arthur, as Mann To read untimely. allow an inmate court to require a district inmate discovery every time the Also 2. Mann’s Claims
to conduct
substantially al-
has
the state
alleges that
Fail on the Merits.
with-
injection procedures
its lethal
tered
not
Mann’s claims were
Even if
resolving whether
first
out
be able to es
would not
untimely, Mann
would
statute of limitations
by the
barred
likelihood
success
tablish a substantial
itself, which
inconsistent with Arthur
be
Eighth
an
“To state
on the merits.
Valle,
Powell,
DeYoung,
distinguished
claim,
must
defendant]
[the
Amendment
reconcile the
obligation to
and with our
(1)
being
State is
demonstrate
if
precedents
prior panel
holdings of our
(2)
ato
condition
indifferent
deliberately
Hogan, 986
States v.
possible, see United
risk of serious
poses
substantial
Cir.1993).
(11th
Arthur
F.2d
injection con
In the lethal
harm to him.
terms,
when
also,
does
bind us
by its
an inmate to
text,
requires
this standard
current lethal
challenges to the
faced with
risk
objectively
intolerable
show
Georgia.
of Florida
injection protocols
officials from
prevents prison
harm that
(distin-
Arthur,
n. 4
F.3d at
&
See
subjectively
they were
pleading that
prior panel precedents
our
guishing
Eighth
purposes
blameless
that DeY-
on the basis
DeYoung and Valle
Valle,
at 1225.
F.3d
Amendment.”
the substitution
whether
oung considered
upon
main
which
has two
theories
pentothal was
for sodium
pentobarbital
violated his
claims that Florida has
change
a substantial
rights, each which
Eighth Amendment
considered
Georgia
protocol
Valle
fails to
this standard.
meet
but Arthur
question
the same
*9
facts about
lethal
concerned different
First,
that the sub
alleges
Alabama).
injection protocol
pen-
for sodium
pentobarbital
stitutions of
pancu-
for
tothal
vecuronium bromide
cannot
establish
Because Mann
a substantial risk
create
ronium bromide
constituted
pentobarbital
substitution
compared to
excruciating pain when
method of exe-
significant alteration
alternatives, but
available
known and
all of his claims not
cution in
Valle,
Mann has not established a substantial
pain.
1237;
vere
See
655 F.3d at
likelihood of success on the merits of this DeYoung,
1316 510 Sparks, futile.” v. not would be Cockrell Arthur does its, disagree. we but Cir.2007). (11th dis- from The concluding court 1310 a district F.3d preclude to state has failed inmate abuse its discretion that a death-row trict court did not to relief on a motion claim for plausible a amend Mann’s motion to when it denied 12(b)(6). Arthur, In under Rule dismiss correctly deter- it complaint because his summarily dismissed court had the district futile. would be mined that the amendment solely on the basis inmate’s the of argues the State Mann without consid- the of limitations of statute the rights when Gover Florida violated allegations presented any of the new ering clemency inves updated nor considered pen- of administration by Arthur about the war signed he the death tigation before the secre- and about tobarbital Alabama give opportunity not Mann an rant and did every aspect about cy Alabama maintains by counsel represented to heard and be method, and we three-drug execution of its argument fails. proceedings, those but whether that question decided narrow of Florida F.3d at of the State 674 The Constitution appropriate. dismissal was Governor, Ar- approval not consider whether of We did in the with the 1259. vests claim under members, thur had stated a plausible the discretion cabinet two of his did we consider Eighth Amendment. Nor of individuals punishment to commute the that he whether Arthur could establish had impeachment. of or not convicted treason of success on a substantial likelihood clemency § Because Fla. Art. Const. of execution. merits to warrant to the discretion of the execu is committed tive, minimal only process provides due Mann Establish a Substantial C. Cannot in the for death-row inmates protections Merits Success on the Likelihood of Parole clemency process. Ohio Adult Updated Clem- His Claim About Woodard, Auth. v. 523 U.S. ency Proceedings. (1998) L.Ed.2d 387 S.Ct. of the district appeals the refusal (O’Connor, J., concurring part and con to amend his grant court him leave inter curring judgment). in the “Judicial a claim that he complaint to was state example, be warranted might, vention clemency updated denied access to the whereby a state face of a scheme the Gov proceeding place that took before whether flipped official a coin to determine warrant, signed his death but Mann ernor clemency, in a case where the grant likelihood of cannot establish substantial arbitrarily prisoner any ac denied State of this claim. success on merits “We clemency process.” Id. Mann cess to its court’s refusal to review the district allow any pro violation of his due cannot show for abuse of proposed amendments clemency proceedings rights cess Maynard Regs. v. Bd. discretion.” by the of Florida. conducted State Dep’t the Fla. the Div. Univs. clemency a full hear Governor conducted Fla., 342 Educ. ex rel. S. F.3d Univ. of signed Mann’s first 1985 before he Cir.2003). (11th “Although counsel Court-appointed death warrant. freely given when leave to amend shall be And hearing. Mann at that represented to amend justice requires, may so a motion obligate the Governor Florida law did grounds such be denied on numerous clemency hearing grant second delay, prejudice to the defen undue undue current death signed before dants, futility of the amendment.” Id. State, 91 So.3d 779- warrant. omitted). Gore (internal marks at 1287 quotation (Fla.2012). re process [Mann] “The a decision that a review de novo “[W]e ceived, hearing and including notice particular amendment
1317
(11th Cir.2011)
comports
curiam);
participate
to
...
III. § complaint CONCLUSION amend his 1983 a include claim that arbitrarily the State denied him expedite DENY We Mann’s motion to clemency access to proceedings. his Spe- and we DENY motion appeal, his I cifically, do share the majority’s con- stay a of execution.
fidence District Court properly MARTIN, Judge, concurring Circuit denied Mr. Mann the opportunity to dissenting in part part: amend his because the claim § was futile. Mr. Mann filed his 1983 Larry Mann pending has another case 8, court, 2013, 1, March on see appealed this which he from the Doc. of his brought pursuant denial motion and nine later days filed a motion to 60(b). I Federal Rule of Civil Procedure amend his to include his clemen- from dissented the denial of a certificate of claim, cy Doc. 16. see Under Federal Rule Larry in that Eu- appealability case. See 15(a), of Civil Procedure Mr. Mann was Moore, gene Mann v. Michael No. W. 13- entitled to amend his pleading “once aas (11th 8, 2013). I 11322 Cir. write matter within days of course ... 21 after regard separate now with to the issues 15(a)(1)(A). serving it.” Fed.R.Civ.P. by raised Mr. Mann in of the appeal this If Mr. Mann had been allowed to amend District Court’s denial pursuant of relief we complaint, necessarily would consid- § 42 U.S.C. er Supreme Court’s decision Ohio First, stay Mr. Mann applies for Woodard, Authority Adult Parole v. which challenge execution based on his to the rejected the principle “because clem- injection procedures by implemented ency is committed to -the discretion of the of Florida. I State concur in the re executive, Due pro- Process Clause majority sult reached claim. safeguards.” vides no constitutional 523 binding precedent compels This Court’s 288, U.S. 118 S.Ct. 140 the conclusion that Mr. Mann has not (1998) (O’Connor, J., L.Ed.2d 387 concur- shown likelihood of success on the merits ring part concurring judg- See, on the claim presented. e.g., based ment). know some pro- We minimal due Warden, Prison, Ferguson Fla. et State clemency applies proceedings cess from (11th .2012) al., 22 Fed.Appx. (per 493 Cir curiam) concurring opinion Justice O’Connor’s (affirming §in denial of 1983 Woodard, we view holding which as the challenging case Florida’s lethal Owens, prisoner “A protocol); DeYoung v. 646 F.3d Court:1 under a death (11th Cir.2011); Thomas, living 1319 Powell v. person sentence remains and con- Lawson, United judgments 1. See States v. F.3d 686 bers who concurred on the (11th Cir.2012) ("Generally, ”) when a n. grounds.’ (quoting narrowest Marks v. Unit- Supreme majority Court decision States, lacks ed U.S. opinion, holding may 'the be Court (1977)). 51 L.Ed.2d position viewed taken those Mem- *12 1318 life.” Id. on the death ceeding pertinent an his now sen- has interest
sequently
tence,
explained:
O’Connor
he had
imposed
As Justice
1990 after
been
by a newly empaneled jury.
resentenced
“pardon
it is
that
and
[Although
true
Mann,
specifi-
have not tradi-
decisions
judicial has process been (footnote omitted). City as a of Police of the Chief Louisville, Georgia, County, Jefferson underly- what I know of the facts Given City Georgia, Louisville, Geor clemency claim, ing Mr. Mann’s I am gia, Defendants. At the say it is futile. prepared to time, full briefing, full and same without No. 11-14802. development issues in the District , Appeals States United Court of Court, it hard to know Mr. Mann’s merits, on Eleventh Circuit. likelihood of success stay required support such a finding is DeYoung, F.3d at execution. See stay (stating may only grant a court moving if party
of execution shows
has a likelihood of success “substantial omitted). merits”) (quotation marks equita-
Because “a execution is an remedy,” McDonough,
ble v. 547 U.S. Hill L.Ed.2d (2006), certainly Mr. Mann will irreparable injury
suffer if his execution is out, proceed I caution
carried would with temporary stay that allowed issuing
for full briefing parties and fair so the
could adequately proble- more address the presented
matic and troublesome issues
this appeal. reasons, I concur respectfully
For these part part opin- and dissent from majority.
ion of the MYERS, Rodney Myers,
Dustin
Plaintiffs-Appellants, BOWMAN,
Murry Individually, Magistrate
the Chief of Jefferson
County, Georgia, Wiley Evans, Clark Individually, Deputy
IV, and as a County
Sheriff with Jefferson