Arthur v. King

• Decision Date: 21 September 2007
• Docket Number: No. 07-13933.,07-13933.
• Citation: 500 F.3d 1335
• Parties: Thomas D. ARTHUR, Plaintiff-Appellant, v. Troy KING, Attorney General for the State of Alabama, in his official capacity, Bryce U. Graham, Jr., District Attorney for Colbert County, in his official capacity, Ronnie May, Sheriff for Colbert County, in his official capacity, M. David Barber, District Attorney for Jefferson County, in his official capacity, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

500 F.3d 1335

Thomas D. ARTHUR, Plaintiff-Appellant, v. Troy KING, Attorney General for the State of Alabama, in his official capacity, Bryce U. Graham, Jr., District Attorney for Colbert County, in his official capacity, Ronnie May, Sheriff for Colbert County, in his official capacity, M. David Barber, District Attorney for Jefferson County, in his official capacity, Defendants-Appellees.

No. 07-13933.

United States Court of Appeals, Eleventh Circuit.

September 21, 2007.

Subana S. Han, Sullivan & Cromwell, LLP, New York City, for Arthur.

Jasper Beroujon Roberts, Jr., Montgomery, AL, for Defendants-Appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Plaintiff Thomas D. Arthur is an Alabama death row inmate scheduled for execution by lethal injection on 27 September 2007. On 12 April 2007, Arthur filed a 42 U.S.C. § 1983 complaint in the United States District Court for the Middle District of Alabama seeking access to specific materials collected at the crime scene for DNA and other testing.

The United States Supreme Court denied Arthur's petition for writ of certiorari in his federal habeas action on 16 April 2007, and, on 17 April 2007, the State of Alabama ("Alabama") filed a motion with the Alabama Supreme Court to set an execution date. In this case, defendants Troy King, Bryce U. Graham, Jr., Ronnie May, and M. David Barber (collectively, "King") filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on 18 May 2007, arguing that Arthur's complaint failed to state a claim upon which relief could be granted.

On 22 June 2007, the Alabama Supreme Court granted Alabama's motion, and set the execution date for 27 September 2007. The district court subsequently granted King's motion to dismiss, Arthur v. King, No. 07-cv-319-WKW, 2007 WL 2381992 (M.D.Ala. Aug.17, 2007) ("Arthur XX"), and denied Arthur's motion to alter or amend judgment, 2007 WL 2539962 (M.D.Ala. Aug.30, 2007) ("Arthur XXI"). Arthur timely appealed and requested expedited briefing and a stay of execution pending appeal. We granted expedited briefing and now affirm the district court's judgment dismissing Arthur's § 1983 action. We also deny his motion for a stay of execution pending appeal as moot.

I. BACKGROUND

The details of Arthur's offense are set forth in our opinion affirming the district court's judgment denying Arthur federal habeas relief. See Arthur v. Allen, 452 F.3d 1234 (11th Cir.) ("Arthur XV"), modified on reh'g, 459 F.3d 1310 (11th Cir.2006) ("Arthur XVI"), cert. denied, ___ U.S. ___, 127 S.Ct. 2033, 167 L.Ed.2d 763 (2007) ("Arthur XVII"). Briefly, in 1982, Arthur, while serving a sentence for murder in the second degree and assigned to a work release center, murdered Troy Wicker, the husband of one of Arthur's paramours, Judy Wicker, by shooting Wicker through the right eye, while he was asleep, with a .22 caliber pistol.

Arthur was indicted for murder, convicted, and sentenced to death by electrocution in 1982. His conviction and sentence were affirmed by the Alabama Court of Appeals, Arthur v. State, 472 So.2d 650 (Ala.Crim.App.1984) ("Arthur I"), but reversed by the Alabama Supreme Court because the trial court had improperly permitted evidence of Arthur's prior murder conviction. Ex parte Arthur, 472 So.2d 665, 668-70 (Ala.1985) ("Arthur II"). The case was remanded for a new trial. Arthur v. State, 472 So.2d 670 (Ala.Crim.App. 1985) ("Arthur III"). In 1987, Arthur was again convicted and sentenced to death. His conviction was reversed, however, because of the admission of Arthur's statement to the police after he had invoked his right to remain silent. Arthur v. State, 575 So.2d 1165, 1171-75 (Ala.Crim.App. 1990) ("Arthur IV"), cert. denied, In re Arthur, 575 So.2d 1191 (Ala.1991) (per curiam) ("Arthur V"). In 1991, Arthur was indicted and convicted of murder for pecuniary gain. Arthur was sentenced to death in 1992. His conviction and sentence were affirmed. Arthur v. State, 711 So.2d 1031 (Ala.Crim.App.1996) ("Arthur VI"), affirmed, In re Arthur, 711 So.2d 1097 (Ala.1997) ("Arthur VII"). He did not file a petition for writ of certiorari to the United States Supreme Court.

Approximately twenty-nine months later, in September 2000, Alabama filed a motion with the Alabama Supreme Court to set an execution date. In January 2001, Arthur filed a petition for postconviction relief with the state trial court. The petition, however, was dismissed as untimely because of a mandatory two-year limitations period required by Alabama Rule of Criminal Procedure 32.2(c), and that decision was affirmed. Arthur v. State, 820 So.2d 886, 888-90 (Ala.Crim.App.2001) (per curiam) ("Arthur VIII"), cert. denied, Arthur v. Alabama, 535 U.S. 1053, 122 S.Ct. 1909, 152 L.Ed.2d 819 (2002) ("Arthur IX"). The Alabama Supreme Court set execution date, Ex parte Arthur, 821 So.2d 251 (Ala.2001) ("Arthur X") for 27 April 2001.

On 20 April 2001, Arthur filed a federal petition for writ of habeas corpus. The district court granted a stay of execution. We denied a motion to vacate the stay, Arthur v. Haley, 248 F.3d 1302, 1303 (11th Cir.2001) (per curiam) ("Arthur XI"), and the Supreme Court denied an application to vacate the stay of execution of sentence of death. Haley v. Arthur, 532 U.S. 1004, 121 S.Ct. 1676, 149 L.Ed.2d 655 (2001) ("Arthur XII"). The federal district court dismissed Arthur's habeas petition, Arthur v. Haley, No. CV-01-N-0983-S (N.D.Ala. Dec. 4, 2002) ("Arthur XIII"), and his motion to alter or amend the judgment, Arthur v. Haley, No. CV-01-N-0983-S (N.D. Ala. Jun 5, 2003) ("Arthur XIV"), but granted a certificate of appealability. We affirmed the district court's denial of habeas relief in 2006, Arthur XV, and the Supreme Court denied his petition for writ of certiorari on 16 April 2007, Arthur XVII. The Alabama Supreme Court subsequently set the date of execution.¹

II. DISCUSSION

During the district court's consideration of Arthur's 2001 federal petition for writ of habeas corpus, Arthur moved for leave to conduct discovery related to his claim of actual innocence. Arthur XIII at 5; Arthur XIX at 2. He sought the clothing that Wicker was wearing on the day of the murder, the rape kit created that same day, the hair samples and wig recovered from Judy Wicker's car, the hair sample and vacuum sweepings recovered from the Wickers' residence, spent cartridge casings and a pillowcase found near Troy Wicker's body, the bullet recovered from Troy Wicker, and photographs of the crime scene. Arthur XIII at 5; Arthur XIV at 3; Arthur XV at 1247 n. 9. The district court denied the request, finding that it would, at best, impeach Judy Wicker's testimony but would not establish Arthur's actual innocence claim. Arthur XIII at 7; Arthur XIV at 5-7. We affirmed, noting that Arthur failed to satisfy the diligence requirement of 28 U.S.C. § 2254, failed to pursue the testing of the requested evidence during his three trials or during state court postconviction proceedings, and failed to demonstrate good cause for his failure to seek the evidence. Arthur XV at 1248. We also noted that "good cause for discovery cannot arise from mere speculation" and that the Arthur's claim that the discovery might prove that he was not the perpetrator was "not enough." Arthur XVI at 1311.

Arthur's § 1983 action sought access to the biological and other evidence used at his trial, and alleged that King's refusal to provide him with the evidence violated his Fourteenth Amendment right to due process, his Eighth Amendment right not to be subjected to cruel and unusual punishment, his right of access to the courts, and his clemency rights. The district court dismissed the § 1983 challenge, finding that Arthur's request could not be litigated without the entry of a stay of execution and that Arthur had failed "to overcome the strong equitable presumption against the grant of a stay." Arthur XIX, slip op. at 9, 2007 WL 2709942 at *4. It concluded that Arthur had failed to demonstrate a likelihood of success on the merits, that prejudice to Alabama outweighed prejudice to Arthur, and that Arthur unreasonably delayed filing his § 1983 action. Id. at 21-25, 2007 WL 2709942 at *11-12.

On appeal, Arthur argues that the district court erred in dismissing his complaint and in refusing to alter or amend its judgment. He maintains that the district court erred in concluding that he was provided procedural safeguards regarding a fair trial because his postconviction proceedings were dismissed as untimely and he has thus not received a review on the merits. He contends that it was error to apply a "strong equitable presumption against the grant of a stay" when no stay was sought and there was no showing that a stay was needed for his claims to be litigated. He maintains that the district court erred by concluding that he had failed to demonstrate a likelihood of success on the merits because DNA testing could identify the actual perpetrator. He argues that the district court failed to recognize, in its relative harm analysis, that Arthur seeks exculpation, and erred in concluding that he unreasonably delayed in filing his action. He also asserts that the district court erred in not crediting the newly discovered exculpatory evidence without holding an evidentiary hearing.

We review a district court's dismissal under Rule 12(b)(6) for failure to state a claim de novo, accepting the complaint's allegations as true and construing them in the light most favorable to the plaintiff. Grayson v. King, 460 F.3d 1328, 1336 n. 5 (11th Cir.2006) ("Grayson I"); Swann v. S. Health Partners, Inc., 388 F.3d 834, 836 (11th Cir.2004). We will affirm only if the Rule 12(b)(6) motion establishes, beyond doubt, that there is no set of facts to support the plaintiff's claim which would entitle the plaintiff to relief. Spain v. Brown & Williamson Tobacco Corp., 363...