Arthur v. Comm'r, Ala. Dep't of Corr.

Decision Date02 November 2016
Docket NumberNo. 16-15549,16-15549
Citation840 F.3d 1268
Parties Thomas D. Arthur, Plaintiff–Appellant, v. Commissioner, Alabama Department of Corrections, Warden, Defendants–Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

840 F.3d 1268

Thomas D. Arthur, Plaintiff–Appellant,
v.
Commissioner, Alabama Department of Corrections, Warden, Defendants–Appellees.

No. 16-15549

United States Court of Appeals, Eleventh Circuit.

Date Filed: November 2, 2016


Suhana Han, Adam Brebner, Stephen Shun–Fai Mar, Peter Steciuk, Akash M. Toprani, Sullivan & Cromwell, LLP, New York, NY, for Plaintiff–Appellant.

James Clayton Crenshaw, Thomas R. Govan, Jr., James Roy Houts, Lauren Ashley Simpson, Henry M. Johnson, Alabama

840 F.3d 1272

Attorney General's Office, Montgomery, AL, for Defendants–Appellees.

Daniel T. Fenske, Jenner and Block, LLP, Chicago, IL, for Amici Curiae.

Before HULL, MARCUS and WILSON, Circuit Judges.

HULL, Circuit Judge:

It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker's murder. After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution. This is Arthur's third such § 1983 case, and this current § 1983 case was filed in 2011. For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief. Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the district court's fact findings and, thus, Arthur has shown no clear error in them. Further, Arthur has shown no error in the district court's conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections ("ADOC") for use in executions; (2) Alabama's consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur's belated firing-squad claim lacks merit.

I. CONVICTION AND APPEALS

The Alabama Supreme Court summarized the facts underlying Arthur's criminal conviction as follows:

More than 20 years ago, Arthur's relationship with his common-law wife ultimately led to his brutally murdering a relative of the woman. Arthur shot the victim in the right eye with a pistol, causing nearly instant death. He was convicted in a 1977 trial and was sentenced to life imprisonment.

While on work release during the life sentence, Arthur had an affair with a woman that ultimately led to his brutally murdering that woman's husband, Troy Wicker, in 1982. Arthur shot Wicker in the right eye with a pistol, causing nearly instant death.

Ex parte Arthur, 711 So.2d 1097, 1098 (Ala. 1997).

In 1982, Arthur was convicted and sentenced to death for Wicker's murder, but the Alabama Supreme Court reversed that conviction in 1985. Arthur v. King, 500 F.3d 1335, 1337 (11th Cir. 2007). In 1987, Arthur was again convicted and sentenced to death, but that conviction was overturned by Alabama's Court of Criminal Appeals in 1990. Id. After his third trial in 1991, Arthur was again convicted of Wicker's murder and sentenced to death in 1992. Id. This time, his conviction and sentence were affirmed. Id. He did not file a petition for writ of certiorari with the United States Supreme Court. Id. at 1337–38.

840 F.3d 1273

At his third sentencing proceeding, Arthur asked for a death sentence, stating that a capital sentence would provide him better prison accommodations, more access to the law library, more time to devote to his appeal, and a more extensive appeals process. Arthur v. Thomas, 739 F.3d 611, 614 (11th Cir. 2014). Arthur told the jury that he did not believe he would be executed. Id. Arthur's murder of Wicker was a capital offense under Alabama law because Arthur had been convicted of another murder in the 20 years preceding his second murder. SeeAla. Code § 13A–5–40(a)(13) (1975) ; Arthur v. State, 71 So.3d 733, 735 (Ala. Crim. App. 2010).

In 2001, after exhausting his state court remedies, Arthur filed a federal habeas corpus petition pursuant to 28 U.S.C. § 2254. Arthur v. Allen, 452 F.3d 1234, 1238, 1240–43 (11th Cir.), modified on reh'g, 459 F.3d 1310 (11th Cir. 2006). The district court dismissed the § 2254 petition as untimely, but granted a certificate of appealability as to Arthur's claims of actual innocence, statutory tolling, and equitable tolling. Id. at 1243. In 2006, this Court affirmed the dismissal of Arthur's § 2254 petition, concluding that Arthur had not shown actual innocence or entitlement to statutory or equitable tolling. Id. at 1253–54.1 The Supreme Court denied Arthur's petition for writ of certiorari. Arthur v. Allen, 549 U.S. 1338, 127 S.Ct. 2033, 167 L.Ed.2d 763 (Mem.) (2007).

With this background, we turn to Arthur's current § 1983 case, challenging Alabama's use of midazolam in its lethal injection protocol. To place Arthur's current § 1983 claim in context, we review the history of lethal injection in Alabama and how Alabama has had to change the drugs used due to unavailability. For years, Arthur challenged the use of sodium thiopental and then pentobarbital. But now that the ADOC has not been able to procure sodium thiopental or pentobarbital and has had to switch to midazolam, Arthur is currently challenging midazolam and now asks to go back to sodium thiopental or pentobarbital as his preferred alternatives. We thus review in great detail how this case got here today.

II. HISTORY OF LETHAL INJECTION IN ALABAMA

When Arthur was sentenced to death, Alabama executed inmates by electrocution. SeeMcNair v. Allen, 515 F.3d 1168, 1171 (11th Cir. 2008). On July 1, 2002, the Alabama legislature adopted lethal injection as the state's preferred form of execution. Id. The legislature allowed inmates already under a sentence of death a 30–day window to choose electrocution as their method of execution, after which time they would be deemed to have waived the right to request a method other than lethal injection. Ala. Code § 15–18–82.1(b).

Alabama's method-of-execution statute further provides that:

If electrocution or lethal injection is held to be unconstitutional by the Alabama Supreme Court under the Constitution of Alabama of 1901, or held to be unconstitutional by the United States Supreme Court under the United States Constitution, or if the United States Supreme

840 F.3d 1274

Court declines to review any judgment holding a method of execution to be unconstitutional under the United States Constitution made by the Alabama Supreme Court or the United States Court of Appeals that has jurisdiction over Alabama, all persons sentenced to death for a capital crime shall be executed by any constitutional method of execution.

Id.§ 15–18–82.1(c). The Alabama statute does not prescribe any particular method of lethal injection; the legislature left it to the ADOC to devise the policies and procedures governing lethal injection executions, and exempted the ADOC from the Alabama Administrative Procedure Act in exercising that authority. Id.§ 15–18–82.1(g).

The ADOC has used a three-drug lethal injection protocol since it began performing executions by lethal injection in 2002. SeeBrooks v. Warden, 810 F.3d 812, 823 (11th Cir.), cert. denied sub nom.Brooks v. Dunn, –––U.S. ––––, 136 S.Ct. 979, 193 L.Ed.2d 813 (2016). Each drug in a three-drug protocol is intended to serve a specific purpose. The first drug should render the inmate unconscious to "ensure[ ] that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs"; the second drug is a paralytic agent that "inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration"; and the third drug "interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest." Baze v. Rees, 553 U.S. 35, 44, 128 S.Ct. 1520, 1527, 170 L.Ed.2d 420 (2008) (plurality opinion).

The third drug in the ADOC protocol has always been potassium chloride, and the second drug has always been a paralytic agent—either pancuronium bromide or rocuronium bromide. Brooks, 810 F.3d at 823. However, the ADOC has changed the first drug in its protocol twice. Id. From 2002 until April 2011, it used sodium thiopental as the first drug in the three-drug sequence. Id. But a national shortage of sodium thiopental forced states, including Alabama, to seek a replacement for sodium thiopental as the first drug in the series. SeeGlossip v. Gross, 576 U.S. ––––, ––––, 135 S.Ct. 2726, 2733, 192 L.Ed.2d 761 (2015) (explaining that the sole domestic manufacturer of sodium thiopental ceased production of the drug in 2009 and exited the market entirely in 2011).

From April 2011 until September 10, 2014, Alabama used pentobarbital as the first drug. Brooks, 810 F.3d at 823. As the Supreme Court has noted, "[b]efore long, however, pentobarbital also became unavailable." Glossip, 135 S.Ct...

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