Brooks v. Warden, Comm'r, Ala. DOC

• Decision Date: 19 January 2016
• Docket Number: No. 15–15732.,15–15732.
• Citation: 810 F.3d 812
• Parties: Christopher Eugene BROOKS, Intervenor Plaintiff–Appellant, v. WARDEN, Commissioner, Alabama DOC, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

810 F.3d 812

Christopher Eugene BROOKS, Intervenor Plaintiff–Appellant,
v.
WARDEN, Commissioner, Alabama DOC, Defendants–Appellees.

No. 15–15732.

United States Court of Appeals, Eleventh Circuit.

Jan. 19, 2016.

810 F.3d 815

John Anthony Palombi, Christine A. Freeman, Spencer Jay Hahn, Federal Defender Program, Inc., Montgomery, AL, for Intervenor Plaintiff–Appellant.

James Clayton Crenshaw, Thomas R. Govan, Jr., Stephanie Reiland, Lauren Ashley Simpson, Luther J. Strange, III Alabama Attorney General's Office, Montgomery, AL, for Defendants–Appellees.

Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.

MARCUS, Circuit Judge:

Appellant Christopher E. Brooks, an Alabama death row inmate, appeals from the district court's denial of his emergency motion to stay execution for the 1992 rape, burglary, robbery, and murder of Jo Deann Campbell. He has also filed with this Court an emergency motion for a stay of execution. After the state moved to set an execution date, Brooks intervened pursuant to Fed.R.Civ.P. 24(b) in a consolidated action filed by five inmates on Alabama's death row. That lawsuit had started more than three years earlier as a claim brought under Title 42 U.S.C. § 1983 in the United States District Court for the Middle District of Alabama challenging the constitutionality of Alabama's method of execution. In the consolidated action, the plaintiffs broadly claimed that Alabama's current three-drug lethal injection

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protocol—which uses midazolam, rocuronium bromide, and potassium chloride—created a substantial risk of serious harm in violation of the Cruel and Unusual Punishments Clause of the Eighth Amendment.

After Brooks recently intervened in the consolidated action and filed a complaint largely repeating the earlier plaintiffs' allegations, he filed an emergency motion last month in the district court to stay his execution, which is now scheduled for January 21, 2016 at 6:00 pm CST. The trial court denied his motion for a stay, explaining that Brooks had not shown a substantial likelihood of success on the merits of his Eighth Amendment claim because: (1) he failed to show an available and feasible alternative method of execution, as required by controlling case law; and (2) he failed to show that he brought this claim within the applicable two-year statute of limitations. Moreover, the district court determined that the balance of equities weighed against granting a stay because Brooks unreasonably delayed bringing his lawsuit until it was too late to resolve the merits of his claim without staying his execution. After carefully reviewing the record before us, we can discern no abuse of discretion and, accordingly, affirm the judgment of the district court, and also deny Brooks's emergency motion to stay filed in this Court.

I.

The facts of the rape, burglary, robbery, and murder that Brooks committed have been laid out in several earlier decisions of the Alabama state courts. See Brooks v. State, 695 So.2d 176, 178–79 (Ala.Crim.App.1996) (" Brooks I "), aff'd, 695 So.2d 184, 186–87 (Ala.1997) ("Brooks II "); see also Brooks v. State, 929 So.2d 491, 494–95 (Ala.Crim.App.2005) ("Brooks III "). As the state court detailed, on December 31, 1992, Jo Deann Campbell was found bludgeoned to death, naked from the waist down, with semen in her vagina. Brooks was later seen driving the victim's car, and was arrested while in possession of her car keys and credit card. Law enforcement authorities confirmed that he had cashed the victim's paycheck and had pawned some items missing from her apartment. Brooks also admitted to having had sex with Ms. Campbell, which was corroborated by DNA evidence.

After trial in Jefferson County, Alabama, a state jury convicted Brooks of three counts of capital murder for killing the victim during the course of a rape, during the course of a robbery, and during the course of a burglary. Following the penalty phase, the jury recommended that Brooks be sentenced to death by a vote of 11 to 1, and an Alabama circuit court sentenced Brooks to death. His conviction and death sentence were affirmed on direct appeal, see Brooks I, 695 So.2d at 176 ; Brooks II, 695 So.2d at 184, and the United States Supreme Court denied his petition for certiorari. Brooks v. Alabama, 522 U.S. 893, 118 S.Ct. 233, 139 L.Ed.2d 164 (1997). On collateral review, the Alabama state court denied his Rule 32 petition, and the Alabama Court of Criminal Appeals affirmed. Brooks III, 929 So.2d at 515. Brooks then petitioned the United States District Court for the Northern District of Alabama for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied the petition. We affirmed, and the United States Supreme Court again denied his petition for certiorari. Brooks v. Comm'r, Ala. Dep't of Corr., 719 F.3d 1292, 1305 (11th Cir.2013) ("Brooks IV "), cert. denied sub nom. Brooks v. Thomas, ––– U.S. ––––, 134 S.Ct. 1541, 188 L.Ed.2d 562 (2014).

On September 10, 2014, the Defendants (collectively, the Alabama Department of

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Corrections or "ADOC") amended Alabama's execution protocol in two ways: (1) they substituted midazolam hydrochloride for pentobarbital as the first drug administered in its three-drug lethal-injection sequence, and (2) they substituted rocuronium bromide for pancuronium bromide as the second drug to be administered. The third drug, potassium chloride, remained the same. Thereafter, Brooks's execution date was initially set for May 21, 2015, but the Alabama Supreme Court stayed the execution, pending the Supreme Court's decision in Glossip v. Gross, ––– U.S. ––––, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), a case that squarely raised Eighth Amendment claims about the use of midazolam in lethal-injection executions in Oklahoma.

While Glossip was working its way through the courts, a consolidated action was being litigated in the United States District Court for the Middle District of Alabama. That group of cases began as one lawsuit originally filed on April 6, 2012, when an Alabama death row inmate sued pursuant to 42 U.S.C. § 1983 to challenge the constitutionality of Alabama's lethal injection protocol. See Grayson v. Dunn, No. 12–cv–00316–WKW, ––– F.Supp.3d ––––, 2015 WL 9413120 (M.D.Ala.2015). The lawsuit initially challenged Alabama's previous lethal injection protocol, but it evolved along with the state's new protocol, and now is known as the "Midazolam Litigation." Since 2012, cases brought by four other Alabama death row inmates have been consolidated into the Midazolam Litigation. On October 18, 2005, the district court denied the state's motion to dismiss the Midazolam Litigation, and on November 20, 2015, the district court set an evidentiary hearing for April 19–22, 2016.

Although the consolidated action had been pending in district court since 2012, Brooks did not move to intervene until November 2, 2015, more than three-and-a-half years after the suit was commenced, and forty days after the state moved the Alabama Supreme Court to set an execution date for Brooks. On November 23, 2015, the district court granted the motion to intervene. Earlier on the same day, the Alabama Supreme Court had granted the state's motion and set Brooks's execution for January 21, 2016.

On December 4, 2015, Brooks filed an Emergency Motion for Stay of Execution. The district court denied the application on December 22, 2015. In a thorough and well-reasoned order, the district court explained that Brooks had not established a substantial likelihood of success on the merits of his Eighth Amendment claim because he failed to adequately show an available and feasible alternative method of execution, as required by Glossip. Among other things, the district court determined that Brooks had not sufficiently demonstrated that two of his proposed single-injection alternatives—sodium thiopental and pentobarbital—are readily available to the ADOC. The court added that Brooks had also failed to adequately demonstrate that his third proposed alternative—midazolam alone—is an effective alternative. In addition, the district court concluded that Brooks had not shown a substantial likelihood of success on the merits because his Eighth Amendment claim was time-barred as of 2004, and he had not sufficiently demonstrated that the clock should have been reset when Alabama switched to the current protocol. Finally, the district court held that because Brooks unreasonably delayed bringing this lawsuit, the balance of equities did not lie in Brooks's favor for a stay. Brooks now appeals the district court's denial of his emergency motion for a stay and also moves this Court on an emergency basis for a stay of execution "to allow measured consideration of the issues of

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first impression raised by the District Court's ruling."

II.

It is by now hornbook law that 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...