Workman v. Bredesen

• Decision Date: 07 May 2007
• Docket Number: No. 07-5562.,07-5562.
• Citation: 486 F.3d 896
• Parties: Philip WORKMAN, Petitioner-Appellee, v. Governor Phil BREDESEN, et al., Respondents-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

486 F.3d 896

Philip WORKMAN, Petitioner-Appellee, v. Governor Phil BREDESEN, et al., Respondents-Appellants.

No. 07-5562.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 7, 2007.

Before: SILER, COLE, and SUTTON, Circuit Judges.

SUTTON, J., delivered the opinion of the court, in which SILER, J., joined. COLE, J. (pp. 921-931), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Philip Ray Workman is scheduled to be executed by the State of Tennessee on May 9, 2007, at 1:00 a.m., for the murder of Lieutenant Ronald Oliver. On May 4, 2007, Workman filed a motion for a temporary restraining order in federal district court, claiming that the State's three-drug protocol for implementing the death penalty violates the Eighth (and Fourteenth) Amendment, and later that day the court granted the motion. Still later that same day, the Governor of Tennessee and the other defendants filed an appeal from that order. Early today, May 7, 2007, the Governor and others filed a 19-page motion in this court to vacate the district court's order. A little later this morning, Workman filed a 45-page brief in response.

This dispute arises from a 25-year-old capital sentence, and the district court's order, if upheld, would be Workman's sixth stay of an execution date set by the State over the last seven years. At no point until last Friday, May 4, 2007, did Workman challenge the State's method of execution, even though the components of the procedure that Workman challenges today have been in existence in the main since 1998. He thus cannot escape the Supreme Court's and this court's limitations on dilatory challenges to an execution procedure.

Workman's prospects for success on the merits also are dim. The Supreme Court has never invalidated a State's chosen method of execution. No court has invalidated the three-drug protocol used by Tennessee (and 29 other jurisdictions). Several state and federal courts have upheld this same three-drug protocol (including the Tennessee Supreme Court in 2005). Our court vacated a similar stay decision in 2006 with respect to a similar challenge and permitted the State to execute the inmate under the protocol. Notwithstanding the decision of the Tennessee Supreme Court in 2005 and the decision of this court in 2006, the State undertook an effort in 2007 to review and improve the procedure. Workman acknowledges that the new procedure is only slightly different from the old procedure, and he offers no explanation how Tennessee has done anything more than make the new procedure less prone to implementation errors. Everything, indeed, the State has done in reviewing and revising the procedure shows that it is trying to prevent Workman from suffering any pain during his execution, not that it is trying or willing to allow a procedure that imposes unnecessary and wanton pain. For these reasons and those elaborated below, we vacate the district court's temporary restraining order.

I.

A.

On August 5, 1981, at 10:00 p.m., Workman walked into a Wendy's restaurant in Memphis, Tennessee, held the employees and a customer at gunpoint, herded them into the manager's office and ordered the manager to empty the day's receipts into a bag. State v. Workman, 667 S.W.2d 44, 46 (Tenn.1984). He instructed the employees to remain in the office, stole an employee's car keys, locked the door and started to leave the restaurant. Id.

Responding to a silent alarm that one of the employees had triggered, Lt. Oliver stopped the defendant as he was exiting. Id. At some point, Workman broke away from Lt. Oliver and fled. Additional officers at the scene grabbed Workman, who broke free of their grasp, then shot Lt. Oliver in the chest and a second officer in the arm, fired a second shot at the second officer, then ran to a business next door, pausing mid-flight to fire another bullet at a third officer. Id. Lt. Oliver died from the gun shot. Id. at 47. Police cordoned off the crime scene area and after an extensive search found Workman hiding in the underbrush with a .45 caliber pistol nearby. Id.

In 1982, a jury found Workman guilty of first-degree murder and imposed a capital sentence. Id. Direct review of Workman's conviction and sentence ended without success in 1984. See State v. Workman, 667 S.W.2d 44 (Tenn.), cert. denied, Workman v. Tennessee, 469 U.S. 873, 105 S.Ct. 226, 83 L.Ed.2d 155 (1984). In 1986, the Shelby County Criminal Court denied Workman's first petition for post-conviction relief, which the Tennessee Court of Criminal Appeals affirmed. Workman v. State, C.C.A. No. 111, 1987 WL 6724 (Tenn.Ct.Crim.App.1987). The Tennessee Supreme Court denied leave to appeal, and so did the United States Supreme Court. Workman v. Tennessee, 484 U.S. 873, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987).

In 1988, Workman filed a second petition for post-conviction relief, which also was unsuccessful. See Workman v. State, 868 S.W.2d 705 (Tenn.Ct.Crim.App.1993), cert. denied, Workman v. Tennessee, 510 U.S. 1171, 114 S.Ct. 1207, 127 L.Ed.2d 555 (1994).

In 1994, Workman filed a petition for a writ of federal habeas corpus in the United States District Court for the Western District of Tennessee. When that proved unsuccessful, see Workman v. Bell, 178 F.3d 759 (6th Cir.1998), cert. denied, 528 U.S. 913, 120 S.Ct. 264, 145 L.Ed.2d 221 (1999), he filed several other petitions in federal court, which also proved unsuccessful. See Workman v. Bell, 227 F.3d 331 (6th Cir. 2000) (en banc), cert. denied, 531 U.S. 1193, 121 S.Ct. 1194, 149 L.Ed.2d 109 (2001) (unsuccessful request to reopen habeas proceedings); Workman v. Bell, 245 F.3d 849 (6th Cir.2001), cert. denied, 532 U.S. 955, 121 S.Ct. 1431, 149 L.Ed.2d 369 and In re Workman, 532 U.S. 954, 121 S.Ct. 1432, 149 L.Ed.2d 369 (2001) (second attempt to reopen habeas proceedings denied).

In March 2001, he collaterally attacked his conviction in state court, filing a petition for a writ of coram nobis. See Workman v. Tennessee, No. 81239 (Tenn.Crim. Ct. March 28, 2001); Tenn.Code § 40-26-105. The state courts rejected the claim. See Tennessee v. Workman, 111 S.W.3d 10 (Tenn.Ct.Crim.App.2002).

In 2003, Workman returned to federal court. He filed a motion for relief from the district court's denial of his first federal habeas petition, see Fed.R.Civ.P. 60(b), claiming that the Tennessee Attorney General perpetrated a fraud upon the district court during Workman's habeas proceedings. The district court denied the motion on October 17, 2006.

On January 17, 2007, the Tennessee Supreme Court scheduled Workman's execution for May 9.

On February 1, Governor Bredesen issued an executive order suspending Tennessee's lethal-injection protocol and asked the Commissioner of Corrections to review the State's capital punishment administration procedures and to develop a new protocol by May 2. See State of Tennessee, Executive Order by the Governor No. 43 (Feb. 1, 2007). In late April (April 30), the Governor announced the new lethal-injection procedure for the State, which left the prior procedure unchanged in the main, though it formalized some components of the procedure and improved others.

On April 27, the district court granted Workman a certificate of appealability to seek review of the district court's denial of his Rule 60(b) motion but denied Workman's request for a stay pending appeal. On May 1, Workman filed an appeal from the Rule 60(b) motion and sought a stay of his execution in this court. On May 4, 2007, we denied the motion for a stay, concluding that Workman had not shown a likelihood of success in reversing the district court's Rule 60(b) decision. Workman v. Bell, 484 F.3d 837, 842 (6th Cir. 2007).

That same day, Workman filed a new complaint in a different federal court—the Middle District of Tennessee. In an 82-page complaint, he challenged the constitutionality of the State's lethal-injection protocol and sought a temporary retraining order suspending his May 9 execution date. Later that same day (still May 4), the district court granted a temporary restraining order, set a preliminary injunction hearing for May 14 regarding the constitutionality of the procedure and effectively stayed Workman's May 9 execution date.

B.

Given the nature of Workman's challenge, a brief review of the history of Tennessee's execution procedures is in order. In 1796, Tennessee became a State, and its the first constitution mentioned "capital offenses." The common law permitted the death penalty, which the State generally carried out by hanging. Tennessee Dep't of Corr., Capital Punishment Chronology, available at http://www.state. tn.us/correction/newsreleases/pdf/ chronology-rev0905.pdf (last visited May 7, 2007). The State adopted a criminal code in 1829, which codified hanging as the sole method of imposing the death penalty. Id. Death by hanging remained the method of execution in Tennessee until 1913, when the State replaced the gallows with the electric chair. Tennessee's last execution by electrocution took place in 1960. In the aftermath of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Tennessee General Assembly passed a new death penalty statute in 1974, which the State's Supreme Court later declared unconstitutional. The State enacted another death-penalty law in 1977, which still authorized electrocution as the State's method of execution. Tennessee Dep't of Corr., Capital Punishment Chronology.

In 1998, Tennessee legislators made lethal injection an option for capital inmates though it continued to allow inmates to choose electrocution. Abdur'Rahman v. Bredesen, No. M2003-01767-COA-R3-CV, 2004 WL 2246227, at *3 (Tenn.Ct.App. Oct.6, 2004); see also Tenn.Code. Ann. § 40-23-114(a). The State's General Assembly vested the Tennessee Department of Corrections with the authority "to promulgate necessary rules and regulations to facilitate the implementation" of death by lethal injection. Tenn.Code § 40-23-114(c). T...