Terrell v. Bryson, 15–15427.

• Decision Date: 08 December 2015
• Docket Number: No. 15–15427.,15–15427.
• Citation: 807 F.3d 1276 (Mem)
• Parties: Brian Keith TERRELL, Plaintiff–Appellant, v. Homer BRYSON, Commissioner, Georgia Dept. of Corrections et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

807 F.3d 1276 (Mem)

Brian Keith TERRELL, Plaintiff–Appellant,

v.Homer BRYSON, Commissioner, Georgia Dept. of Corrections et al., Defendants–Appellees.

No. 15–15427.

United States Court of Appeals, Eleventh Circuit.

Dec. 8, 2015.

Susan C. Casey, Michael Kennedy McIntyre & Associates, Gerald Wesley King, Jr., Federal Defender Program, Inc., Atlanta, GA, for Plaintiff–Appellant.

Sabrina Graham, Beth Attaway Burton, Attorney General's Office, Atlanta, GA, for Defendants–Appellees.

Appeal from the United States District Court for the Northern District of Georgia. D.C. Docket No. 15–cv–04236–TCB.

Before MARCUS, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

Upon a thorough review of the record, including the parties' extensive filings, we conclude that the district court did not abuse its discretion in denying Brian Keith Terrell's motion for a stay of execution. See Muhammad v. Secretary, 739 F.3d 683, 688 (11th Cir.2014) (reviewing denial of stay of execution for abuse of discretion). Given the Supreme Court's decision in Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2738–46, 192 L.Ed.2d 761 (2015), and our decisions in Gissendaner v. Commissioner, 803 F.3d 565, 567–69 (11th Cir.2015), and Wellons v. Commissioner, 754 F.3d 1260, 1267 (11th Cir.2014), Mr. Terrell has not shown a substantial likelihood of success on his claims concerning the implementation of Georgia's one-drug lethal injection protocol. First, he has not demonstrated a risk of severe pain. See Glossip, 135 S.Ct. at 2737 ; Gissendaner, 803 F.3d at 567–68. Second, he has not demonstrated that any such risk is substantial when compared to a known and available alternative. See Gissendaner, 803 F.3d at 568–69. Third, he has not demonstrated a due process right to the information that Georgia law keeps secret. See Wellons, 754 F.3d at 1267.

Mr. Terrell's motion for a stay of execution is therefore denied.

MOTION FOR STAY OF EXECUTION DENIED.

MARCUS, Circuit Judge, concurring:

On the eve of execution, Brian Keith Terrell filed this 42 U.S.C. § 1983 complaint in the United States District Court for the Northern District of Georgia, seeking to prevent the State of Georgia from executing him for the 1992 murder of seventy-year-old John Watson. Terrell claims that the execution, scheduled for 7:00 p.m. today, will violate the Cruel and Unusual Punishment Clause of the Eighth Amendment. He specifically argues that the State of Georgia's method of execution—which uses compounded lethal injection drugs—presents an imminent and substantial risk of serious harm to him. He also argues that a Georgia statute that classifies information about Georgia's execution protocols as a state secret violates his due process right to access information necessary to prosecute his Eighth Amendment claim. Today the district court denied Terrell's motion for temporary restraining order and stay of execution. Terrell appealed from the district court order and moved this Court for a stay of execution. I join the majority opinion issued by our Court today because Terrell has not come close to establishing a substantial likelihood of success on the merits.

The facts of the murder that Terrell committed have been laid out in our previous decision, which affirmed the denial of Terrell's petition for federal habeas relief under 28 U.S.C. § 2254(d)(1). See Terrell v. GDCP Warden, 744 F.3d 1255, 1258–59 (11th Cir.2014) ; see also Hall v. Terrell, 285 Ga. 448, 679 S.E.2d 17, 19–20 (2009). In short, approximately seven weeks after he was paroled from prison, Terrell shot and beat to death seventy-year-old John Watson to prevent Watson from reporting to the police that Terrell had forged Watson's signature on stolen checks totaling several thousand dollars. Thereafter, a Newton County, Georgia, grand jury indicted Terrell for malice murder, felony murder, and armed robbery of Watson, and ten counts of first-degree forgery. For various reasons, Terrell was then tried three times for the murder of Watson and the related crimes. After the third jury found him guilty and recommended a sentence of death, the Georgia Supreme Court upheld the conviction and sentence unanimously on appeal, Terrell v. State, 276 Ga. 34, 572 S.E.2d 595 (2002), and the United States Supreme Court denied certiorari review, Terrell v. Georgia, 540 U.S. 835, 124 S.Ct. 88, 157 L.Ed.2d 64 (2003). Terrell's state court petition for a writ of habeas corpus was later rejected by the Georgia Supreme Court, see Terrell, 679 S.E.2d at 19, as was his federal petition for a writ of habeas corpus, see Terrell, 744 F.3d at 1258, cert. denied, Terrell v. Chatman, ––– U.S. ––––, 135 S.Ct. 726, 190 L.Ed.2d 454 (2014).

After his death warrant was issued, Terrell filed an informal grievance with the Georgia Department of Corrections, and then a formal one, both of which were denied. On December 6th—just two days before his scheduled execution date—he commenced this action in the Northern District of Georgia, and moved the district court for a temporary restraining order and stay of execution. In a detailed order, the district court today denied Terrell relief. It first concluded that Terrell's method-of-execution claim is time-barred, since Terrell's claim began to accrue in October 2003, when direct review of his convictions and sentences was completed, and the statute of limitations ran two years later, in October 2005. The court also determined that even if Terrell's claim was timely, he has not shown that he is likely to prevail on the merits of that claim. Relying on controlling case law from the Supreme Court and this Court, the district court laid out the elaborate procedure the State has undertaken to avoid a substantial risk of severe pain to Terrell during the execution, and observed that Terrell failed to point to a feasible alternative. The district court also rejected Terrell's due process claim concerning information about the method of his execution, which has been squarely foreclosed by our case law. Terrell now appears in this Court, raising the same claims.

All that is before us today is Terrell's motion for a stay of execution. A court may grant a stay of execution only if the moving party establishes that: "(1) he has a substantial likelihood of success on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the stay would not substantially harm the other litigant; and (4) if issued, the injunction would not be adverse to the public interest." See Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir.2011). And we review the denial of a stay of execution only for abuse of discretion. Id.

In an Eighth Amendment challenge to a lethal injection protocol, the Supreme Court has held:

[P]risoners cannot successfully challenge a method of execution unless they establish that the method presents a risk that is " ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’ " To prevail on such a claim, "there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’ that prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.’ " ... [P]risoners "cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative." Instead, prisoners must identify an alternative that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain."

... [T]he requirements of an Eighth Amendment method-of-execution claim [are summarized] as follows: "A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. [And][h]e must show that the risk is substantial when compared to the known and available alternatives."

Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015) (citations and emphasis omitted); see also Baze v. Rees, 553 U.S. 35, 50, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion); Gissendaner v. Comm'r, Ga. Dep't of Corr., 779 F.3d 1275, 1283 (11th Cir.2015) (Gissendaner I ).

Terrell has not come close to establishing a substantial likelihood that the State's lethal injection protocol has satisfied either of the two prongs required by the Supreme Court in Glossip and Baze: (1) that the protocol creates a "sure or very likely" risk of causing "serious harm"; and (2) that this risk is substantial when compared to the known and available alternatives. Terrell relies primarily on the facts surrounding the execution of Kelly Gissendaner and Marcus Johnson, two Georgia inmates who were executed earlier this year. Prior to Gissendaner's originally scheduled execution date, in March 2015, a doctor inspected the lethal injection drugs that were to be used and concluded that there may have been safety concerns because the liquid solution appeared to have "precipitated," which means that white, solid materials had appeared in the liquid solution, causing it to appear cloudy. As a result, the State sent out two batches of its lethal injection drugs that had appeared precipitated to a laboratory for testing. The State also consulted with a pharmaceutical expert, and the Department of Corrections ran its own experiment on newly compounded pentobarbital. Notably, the State did not proceed with any executions until the testing process was completed, the State developed a proper course of action to keep precipitation from occurring in the future, and two new batches of compounded pentobarbital that did not precipitate were provided. Gissendaner was executed without incident in September. Johnson also was executed without incident in November.

As for the first prong of the Glossip/Baze test, Terrell argues that before Gissendaner's initial execution date in March, the State had received two batches of compounded pentobarbital...