Middlebrooks v. Parker

• Decision Date: 13 January 2022
• Docket Number: No. 20-5419,20-5419
• Citation: 22 F.4th 621 (Mem)
• Parties: Donald Ray MIDDLEBROOKS, Plaintiff-Appellant, v. Tony PARKER, in his official capacity as Tennessee's Commissioner of Correction; Tony Mays, in his official capacity as Warden of Riverbend Maximum Security Institution, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

22 F.4th 621 (Mem)

Donald Ray MIDDLEBROOKS, Plaintiff-Appellant,

v.Tony PARKER, in his official capacity as Tennessee's Commissioner of Correction; Tony Mays, in his official capacity as Warden of Riverbend Maximum Security Institution, Defendants-Appellees.

No. 20-5419

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 13, 2022

ON PETITION FOR REHEARING EN BANC: Miranda Jones Scott Sutherland, Rob Mitchell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellee. ON RESPONSE: Richard Lewis Tennent, Kelley J. Henry, Amy D. Harwell, Katherine Dix, Marshall Jensen, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. ON AMICUS BRIEF: Jeffrey C. Mando, Claire E. Parsons, ADAMS LAW, PLLC, Covington, Kentucky, D. Barry Stilz, KINKEAD & STILZ, Lexington, Kentucky, for Amicus Curiae.

Before: MOORE, CLAY, and WHITE, Circuit Judges.

MOORE, CLAY, and WHITE, JJ., the original panel of the court, issued an order denying the petition for rehearing en banc and a statement in support. THAPAR, J. (pp. 622–29), issued a separate statement respecting the denial of rehearing en banc.

ORDER

On Petition for Rehearing En Banc

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision of the case. The petition then was circulated to the full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.

STATEMENT IN SUPPORT

MOORE, CLAY, and WHITE, Circuit Judges.

The panel offers three observations in support of the denial of the petition for rehearing en banc.

First, as the Order denying en banc review makes clear, "no judge " of this court "requested a vote on the suggestion for rehearing en banc." Order at 2 (emphasis added).

Second, the panel's opinion simply applied binding Supreme Court precedent to reverse the district court's dismissal of Middlebrooks's facial challenge and remanded the case to the district court for further proceedings. Middlebrooks v. Parker , 15 F.4th 784, 797 (6th Cir. 2021).

Third, Judge Thapar's statement does not suggest that the panel improperly applied any Supreme Court or Sixth Circuit precedent. (Perhaps that is why he did not request a vote on the suggestion for rehearing en banc.) Instead, with a string of citations to Supreme Court concurrences, dissents, and one decades-old dissent from denial of certiorari, the statement makes a series of normative claims about how death-penalty doctrine should operate, and coaches states as to how they may use their sovereign authority to proceed with executions more efficiently.

STATEMENT

THAPAR, Circuit Judge, statement respecting denial of rehearing en banc.

Thirty-two years after he brutally tortured and killed a 14-year-old boy, Donald Middlebrooks asks this court to bar his execution by lethal injection as cruel and unusual punishment. He says that Tennessee's midazolam protocol will inflict unnecessary pain and violate the Eighth Amendment. So he demands that the State use pentobarbital instead. But just eight years ago, Middlebrooks raised precisely the same objection to pentobarbital. What changed? Tennessee can no longer access pentobarbital.

Such gamesmanship is far from unusual in capital-punishment litigation. So in a pair of cases, Baze v. Rees and Glossip v. Gross , the Supreme Court aimed to curb the prolonged litigation that surrounds method-of-execution claims. Unfortunately, things haven't panned out this way in the lower courts. This case is proof positive. And the fact that our jurisprudence turns on fact-specific inquiries rather than bright-line rules ensures that the deck remains stacked against the states. Why? Because even when the state wins in the first round of litigation, a determined inmate can demand a rematch by pointing to "new facts." And unsurprisingly, "new facts" are not hard to come by at the pleading stage. What's more, these allegations earn the inmate a ticket to the costly and time-consuming discovery that picks apart every aspect of the state's execution method. Thus, for those inmates who see litigation as only a device of delay, our jurisprudence invites such maneuvers.

Like many death-row inmates, Middlebrooks has made a career out of exploiting these gaps. Kerrick Majors's family and the legal system both deserve better.

I.

Kerrick Majors was no different from most 14-year-olds. He liked to hang out with his friends and have some fun. One day, Kerrick and four of his friends went to a flea market. They saw Donald Middlebrooks, his wife Tammy, and the couple's friend, Roger Brewington, setting up a table. The five boys started looking through the things Middlebrooks had set on the table. But Middlebrooks's wife yelled at the boys, "Hey y'all n------, leave our stuff alone." So they took off running—but Middlebrooks and Brewington followed them. Four of the boys got away. Sadly, Kerrick did not. Middlebrooks and Brewington caught him and dragged him back to the table.

When they caught him, they grabbed him in a "sleeper hold" around his neck. Kerrick cried out, asking them to let him go and protesting that they all knew each other. But one just responded: "F--k you n-----." Kerrick was black; Middlebrooks and Brewington are white. (One witness testified that Middlebrooks claimed to be a member of the KKK, "hated n------," and had punched a black man for just saying hello.)

Next, Middlebrooks punched Kerrick in the face and knocked him down. Together with his wife and Brewington, he then dragged Kerrick into the woods. There, they beat him with brass knuckles and a switch, struck him in the testicles, urinated in his mouth, burned his face with a cigarette lighter, forced a stick into his anus, and slashed open his wrist with a knife. They carved an "X" into his chest. After three and a half hours of torture, Kerrick was still conscious and begging for his life. But his crying and pleading began to get on Middlebrooks's nerves. So the men stabbed him to death.

Indeed, as he later confessed, Middlebrooks inflicted the final wounds that extinguished Kerrick's life. Why? So he could "prove" to Brewington that he was "cooler."

The next day, police discovered Kerrick's mangled, naked body lying face up in a dry creek bed under a foam mattress. A bloodstained and urine-soaked T-shirt was tied around his neck. Bruises, swelling, and abrasions disfigured his face. Forensic examiners confirmed that Kerrick suffered unimaginable horrors: One of the stab wounds had penetrated his left lung and pulmonary artery, meaning that Kerrick likely bled to death over a period of ten to thirty minutes after staying conscious through the hours before.

Middlebrooks gave a lengthy video-taped confession about the murder and presented no proof at trial. A jury sentenced him to death because the killing was "especially heinous, atrocious, or cruel."

Since a jury of his peers convicted him of murder and recommended the death penalty in 1989, Middlebrooks has been no stranger to the courtroom. Indeed, he has spent thirty-two years attempting to unwind his sentence by litigating up, down and across the federal and state court systems.¹

Middlebrooks now claims that there is a substantial risk that Tennessee's three-drug protocol of midazolam

, vecuronium bromide, and potassium chloride (the "midazolam protocol") will cause him to suffer severe pain in violation of the Eighth Amendment. Instead, he proposes that the State use either nitrogen hypoxia or pentobarbital.²

The irony? In an earlier case, Middlebrooks argued that pentobarbital posed "a substantial risk of a lingering death." See West v. Schofield , 519 S.W.3d 550, 552 (Tenn. 2017). Now he claims pentobarbital

"will greatly reduce the substantial risk of severe pain." R. 13, Pg. ID 187–88. One might wonder if this litigation is about pain at all or simply delay. After decades of litigation, the answer seems self-evident.

II.

Turning to Middlebrooks's legal claim, he faces a high hurdle. Though methods of execution have changed over time, the Supreme Court "has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment." Glossip v. Gross , 576 U.S. 863, 869, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015) (citation omitted). To succeed, Middlebrooks must show that the State's chosen method of execution "cruelly superadds pain." Bucklew v. Precythe , ––– U.S. ––––, 139 S. Ct. 1112, 1125, 203 L.Ed.2d 521 (2019) (citing Glossip , 576 U.S. at 869–78, 135 S.Ct. 2726, and Baze v. Rees , 553 U.S. 35, 52, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion)). And he must show that a "feasible and readily implemented alternative method of execution" exists that substantially reduces the risk of severe pain and that "the State has refused to adopt without a legitimate penological reason." Id.

Middlebrooks is well-acquainted with the Baze - Glossip test. After all, this is at least his third challenge to Tennessee's execution protocol. And when these challenges are viewed side-by-side with how the State's execution protocol has changed over time, it is hard to shake the impression that Middlebrooks is playing a contrived game of "Whac-A-Mole."

Start with Middlebrooks's first method-of-execution challenge in 2014. At that time, Tennessee used pentobarbital for its executions. Middlebrooks, along with a group of other inmates, challenged the State's use of pentobarbital as posing a "substantial risk of a lingering death" that violated the Eighth Amendment's prohibition on cruel and unusual punishment. See Schofield , 519 S.W.3d at 552. This challenge failed because the plaintiffs failed to both show pentobarbital caused severe pain and identify a readily available alternative. Id. at 564–66.

But soon after this three-and-a-half-year...