In re Schwab
| Decision Date | 09 November 2007 |
| Docket Number | No. 07-15258.,07-15258. |
| Citation | 506 F.3d 1369 |
| Parties | In Re: Mark Dean SCHWAB, Petitioner. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Middle District of Florida.
Before DUBINA, CARNES and HULL, Circuit Judges.
We have previously affirmed the denial of federal habeas relief to Mark Dean Schwab, a Florida death row inmate. Schwab v. Crosby, 451 F.3d 1308 (11th Cir.2006). Before us now are his application to file a second or successive federal habeas corpus petition pursuant to 28 U.S.C. § 2244(b), and a motion for stay of execution in order to permit us time to consider that application. The only claim Schwab wants to raise in a second petition involves the constitutionality of Florida's lethal injection procedures and protocols.
Even if such a claim were properly cognizable in an initial federal habeas petition, instead of in a 42 U.S.C. § 1983 proceeding, see generally Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 2099, 165 L.Ed.2d 44 (2006); Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), Rutherford v. McDonough, 466 F.3d 970, 973 (11th Cir.2006) (), this claim cannot serve as a proper basis for a second or successive habeas petition. It cannot because it neither relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, 28 U.S.C. § 2244(b)(2)(A), nor involves facts relating to guilt or innocence, see 28 U.S.C. § 2244(b)(2)(B)(ii).
Our disposition of the application renders the motion for stay of execution moot.
APPLICATION DENIED; MOTION FOR STAY DENIED AS MOOT.
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In re Hill
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