Powell v. Thomas

• Decision Date: 16 May 2011
• Docket Number: Case No. 2:11–CV–376–WKW.
• Citation: 784 F.Supp.2d 1270
• Parties: Eddie POWELL, Plaintiff,v.Kim T. THOMAS, Interim Commissioner, Alabama Department of Corrections, et al., Defendants,andJason Oric Williams, Intervenor–Plaintiff,v.Kim T. Thomas, Interim Commissioner, Alabama Department of Corrections, et al., Intervenor–Defendants.
• Court: U.S. District Court — Middle District of Alabama

784 F.Supp.2d 1270

Eddie POWELL, Plaintiff,

v.Kim T. THOMAS, Interim Commissioner, Alabama Department of Corrections, et al., Defendants,andJason Oric Williams, Intervenor–Plaintiff,

v.Kim T. Thomas, Interim Commissioner, Alabama Department of Corrections, et al., Intervenor–Defendants.

Case No. 2:11–CV–376–WKW.

United States District Court, M.D. Alabama, Northern Division.

May 16, 2011.

John Anthony Palombi, Federal Defenders, Matt David Schulz, Federal Defenders, Middle District of Alabama, Montgomery, AL, for Plaintiff.Angela Leigh Setzer, Marc Robert Shapiro, Stephen Chu, Equal Justice Initiative of Alabama, Montgomery, AL, for Intervenor–Plaintiff.James Clayton Crenshaw, Stephanie Elizabeth Reiland, Office of the Attorney General, Montgomery, AL, for Defendants.

MEMORANDUM OPINION AND ORDER

W. KEITH WATKINS, District Judge.

I. INTRODUCTION

Jason Oric Williams is scheduled for execution by lethal injection on Thursday, May 19, 2011, at 6:00 p.m. Central Daylight Time, under an Alabama sentence of death. On Friday afternoon, May 13, 2011, at 4:41 p.m., Williams filed a motion to intervene in death row inmate Eddie Powell's case (which had been filed at 2:44 p.m. the same afternoon and which bears the same case number) with a complaint and motion to stay execution attached. Due to the lateness of the litigation hour, the motion to intervene has been granted by separate order. This opinion addresses Williams's motion for stay of execution (Doc. # 6), which has been fully briefed (Docs. # 7, 8.) The merits of the complaint, framed under the rubric of 42 U.S.C. § 1983, are not directly at issue, though the merits framework is necessarily involved in the substantial likelihood of success analysis.

Williams does not challenge his sentence of death or even the state of Alabama's decision to implement lethal injection as a method of execution under its laws. Williams challenges only the change in one of the drugs used in the lethal injection protocol. It is undisputed that Williams will be the first Alabama prisoner executed using pentobarbitol as the first drug in the three-drug lethal injection sequence, in place of sodium thiopental which has been used in all twenty-seven lethal injection executions in Alabama. Williams asserts that there is no assurance that his execution using pentobarbitol will comply with constitutional requirements.

Williams is unable to show a substantial likelihood of success on the merits of his claim, and there is insufficient time to consider his claims without the entry of a stay of execution. The motion for stay of execution, therefore, is due to be denied.

II. JURISDICTION AND VENUE

Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations in support of both.

III. STANDARD FOR REVIEWING A MOTION TO STAY EXECUTION

This opinion is addressed solely to Williams's motion to stay his execution. Although the Supreme Court of the United States has held that a death row inmate may challenge the constitutionality of execution methods through a 42 U.S.C. § 1983 action, a stay “is not available as a matter of right,” even where execution is imminent. Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). Rather, “a stay of execution is an equitable remedy[,]” and “equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Id.; see also Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir.1983) (“Each delay, for its span, is a commutation of a death sentence to one of imprisonment.”). Additionally, not only the state, but also the “victims of crime have an important interest in the timely enforcement of a sentence.” Hill, 547 U.S. at 584, 126 S.Ct. 2096.

A motion for a stay filed by a death row inmate who challenges the method of his execution is treated the same as any other motion for a stay. Hence, a death row inmate is afforded no preferential treatment by his filing of a motion to stay, and all requirements for a stay must be satisfied. Hill, 547 U.S. at 584, 126 S.Ct. 2096. The requirements mirror those applicable to obtaining injunctive relief. Grayson v. Allen, 491 F.3d 1318, 1322 (11th Cir.2007) (“The equitable principles at issue when inmates facing imminent execution delay in raising their § 1983 method-of-execution challenges are equally applicable to requests for both stays and injunctive relief.”). This means that before a court can issue a stay, it must consider whether the movant has shown “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on the non-movant; and (4) that entry of the relief would serve the public interest.” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir.2005); see also Hill, 547 U.S. at 584, 126 S.Ct. 2096 (“[I]nmates seeking time to challenge the manner of their execution must satisfy all of the requirements for a stay, including showing a significant possibility of success on the merits.”). And, the movant must clearly carry the burden of persuasion in order for the court to grant a stay. See Hill, 547 U.S. at 584, 126 S.Ct. 2096.

Finally, when a motion for a stay of execution is filed on the eve of the execution, “the extent to which the inmate has delayed unnecessarily in bringing the claim” must be considered. Nelson v. Campbell, 541 U.S. 637, 649, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). A “strong equitable presumption” applies “against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.” Hill, 547 U.S. at 584, 126 S.Ct. 2096 (quoting Nelson, 541 U.S. at 650, 124 S.Ct. 2117); see also Gomez v. U.S. Dist. Court for N. Dist. of Calif., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) ( per curiam ) (noting that the “last-minute nature of an application” or an applicant's “attempt at manipulation” of the judicial process may warrant the denial of a stay).

IV. BACKGROUND

The full details of Williams's crimes are set forth in Williams v. Allen, 598 F.3d 778, 782–85 (11th Cir.2010) and Williams v. State, 710 So.2d 1276, 1290–93 (Ala.Crim.App.1996). In short, on the morning of February 15, 1992, Williams shot six people with a .22 automatic rifle, killing four of them and wounding two others, including at least one minor child.

On November 11, 1992, Williams was convicted of multiple capital offenses, and on December 1, 1992, he was sentenced to death. Williams, 598 F.3d at 787. Both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed Williams's convictions and death sentence on direct appeal. Williams, 710 So.2d at 1349; aff'd, Ex parte Williams, 710 So.2d 1350, 1357 (Ala.1997). Williams's conviction and sentence became final on June 15, 1998, when the United States Supreme Court denied his petition for a writ of certiorari. Williams v. Alabama, 524 U.S. 929, 118 S.Ct. 2325, 141 L.Ed.2d 699 (1998).

From 1999 to 2004, Williams pursued a state habeas petition asserting ineffective assistance of counsel. Williams's state habeas petition was denied by the trial court; the Alabama Court of Criminal appeals affirmed the trial court; and the Alabama Supreme Court denied his petition for a writ of certiorari on October 1, 2004. Williams, 598 F.3d at 787. Williams then filed a petition for a writ of federal habeas corpus in the United States District Court for the Southern District of Alabama pursuant to 28 U.S.C. § 2254. Williams's federal habeas corpus petition was denied by the district court in 2007. On March 4, 2010, the Eleventh Circuit affirmed the district court's denial of Williams's petition, and on January 10, 2011, the Supreme Court of the United States denied his petition for a writ of certiorari on his habeas claims. Williams v. Allen, ––– U.S. ––––, 131 S.Ct. 906, 178 L.Ed.2d 760 (2011).

On January 11, 2011, the state of Alabama filed a motion to set an execution date for Williams with the Alabama Supreme Court. (Williams's Compl. ¶ 17.) Around that same time, news reports began to surface that states were experiencing a shortage of sodium thiopental, a drug widely used in execution by lethal injection, due to Hospira Inc.'s decision to cease manufacturing the drug. ( See, e.g., Defs.' Opp. to Mot. for Stay, Exs. B–C.) On January 25, 2011, the state of Alabama, along with twelve other states, sent a letter to Attorney General Eric Holder notifying him that “[s]odium thiopental is in very short supply worldwide, and for various reasons, essentially unavailable on the open market.” (Williams's Compl., Ex. A, at 1.) The letter requested the Attorney General's “assistance in identifying an appropriate source for sodium thiopental or making supplies held by the Federal Government available to the States.” (Williams's Compl., Ex. A, at 1.) The Alabama Department of Corrections' (“ADOC”) previous lethal injection executions were conducted using a three-drug sequence of sodium thiopental, pancuronium bromide, and potassium chloride. (Williams's Compl. ¶ 30.)

On March 15, 2011, the ADOC received eight grams of sodium thiopental from the Tennessee Department of Corrections. (Williams's Compl. ¶ 20.) On March, 22, 2011, the Tennessee Department of Corrections's sodium thiopental from which these eight grams were derived was seized by the United States Drug Enforcement Agency (“DEA”). (Williams's Compl. ¶ 20.) Sometime between March 15 and 22, 2011, the DEA contacted the ADOC concerning these eight grams of sodium thiopental, and the ADOC surrendered it to the DEA. (Defs.' Opp. to Mot. for Stay, Ex. A.) Williams alleges that the expiration date on all of the remaining sodium thiopental in the ADOC's possession...