Miller v. Hamm

Decision Date19 September 2022
Docket Number2:22-cv-506-RAH [WO]
PartiesALAN EUGENE MILLER, Plaintiff, v. JOHN Q. HAMM, Commissioner, Alabama Department of Corrections, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama



In 2018, Alabama passed a law granting death row inmates an opportunity to elect their execution by a new method nitrogen hypoxia, in lieu of Alabama's default method lethal injection. This case presents another occasion for the Court to consider the downstream effects of an Alabama Department of Corrections official's decision to distribute to death row inmates a form by which inmates could elect their execution by nitrogen hypoxia. Plaintiff Alan Eugene Miller claims that he timely submitted a nitrogen hypoxia election form, but the Defendants claim they have no record of Miller's form in their files. Miller is scheduled to be executed by lethal injection on September 22, 2022.

Miller is a death row inmate in the custody of the Alabama Department of Corrections (ADOC) at Holman Correctional Facility (Holman).[1] On August 22, 2022, he filed this lawsuit under 42 U.S.C. § 1983 against Defendants John Q. Hamm, the Commissioner of the ADOC; Terry Raybon, the Warden at Holman; and Steve Marshall, Attorney General of the State of Alabama (collectively, the State or Defendants). All Defendants are sued in their official capacities.

In his Amended Complaint (Doc. 18), Miller alleges that the State violated his constitutional rights by failing to honor his nitrogen hypoxia election. Miller alleges that he timely made such an election in 2018, but the State cannot locate any record that he did so. He seeks declaratory and injunctive relief.

This matter is before the Court on Miller's Motion for Preliminary Injunction (Doc. 28), wherein Miller seeks to enjoin the State from executing him by lethal injection and a declaration that his nitrogen hypoxia election be honored. The motion has been fully briefed (Docs. 42, 48), and the parties have submitted hundreds of pages of evidence. On September 12, 2022, the Court conducted an evidentiary hearing, during which it heard Miller's live testimony and oral argument from counsel on the motion. The State presented no live testimony in response. This matter is ripe for review.

For the following reasons, Miller's Motion for Preliminary Injunction is due to be granted.


“When ruling on a preliminary injunction, ‘all of the well-pleaded allegations [in a movant's] complaint and uncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true.' Alabama v. U.S. Dep't of Com., 546 F.Supp.3d 1057, 1063 (M.D. Ala. 2021) (alteration in original) (quoting Elrod v. Burns, 427 U.S. 347, 350 n.1 (1976)). “At the preliminary injunction stage, a district court may rely on affidavits and hearsay materials which would not be admissible evidence for a permanent injunction, if the evidence is ‘appropriate given the character and objectives of the injunctive proceeding.' Levi Strauss & Co. v. Sunrise Int'l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995) (quoting Asseo v. Pan Am. Grain Co., 805 F.2d 23, 26 (1st Cir. 1986)).

A. Miller's Capital Litigation History

In 2000, Miller was convicted of the capital murder of Lee Holdbrooks, Scott Yancey, and Terry Lee Jarvis. By a vote of 10-2, the jury recommended that Miller be sentenced to death. The trial court adopted the jury's recommendation and imposed a death sentence. Miller's conviction and sentence were affirmed by the Alabama Court of Criminal Appeals in 2004. Miller v. State, 913 So.2d 1148 (Ala.Crim.App.2004). The Alabama Supreme Court denied certiorari, and the Alabama Court of Criminal Appeals issued Miller's certificate of judgment on May 27, 2005. Miller v. State, 99 So.3d 349, 352 (Ala.Crim.App.2011). The United States Supreme Court likewise denied certiorari. Miller v. Alabama, 546 U.S. 1097 (2006) (mem.).

On May 19, 2006, Miller filed a petition under Alabama Rule of Criminal Procedure 32 for postconviction relief and subsequently filed an amended petition on April 4, 2007. Miller v. State, 99 So.3d 349, 353 (Ala.Crim.App.2011). On May 5, 2009, the state circuit court denied Miller's petition, which the Alabama Court of Criminal Appeals later affirmed. Id. at 353, 426. After initially granting certiorari, the Alabama Supreme Court quashed the grant and denied certiorari on June 22, 2012. Miller v. Dunn, No. 2:13-cv-154, 2017 WL 1164811, at *9 (N.D. Ala. Mar. 29, 2017).

In January 2013, Miller filed a petition for habeas relief in the United States District Court for the Northern District of Alabama, which was denied in March 2017. Id. The United States Court of Appeals for the Eleventh Circuit affirmed the district court's denial of habeas relief in August 2020. Miller v. Comm'r, Ala. Dep't of Corr., 826 Fed.Appx. 743 (11th Cir. 2020) (per curiam). The United States Supreme Court denied certiorari in October 2021. Miller v. Dunn, 142 S.Ct. 123 (2021) (mem.).

B. Backdrop of the Present Action
1. Nitrogen Hypoxia Becomes an Alternative Method of Execution

On June 1, 2018, Alabama Act 2018-353 went into effect. See 2018 Ala. Laws Act 2018-353; Ala. Code § 15-18-82.1(b). This law granted death row inmates one opportunity to elect nitrogen hypoxia as their method of execution, in lieu of Alabama's default method, lethal injection. Ala. Code § 15-18-82.1(b). The nitrogen hypoxia election process requires an inmate to make that election in writing and deliver it to his or her warden within thirty days after a certificate of judgment has been issued affirming the inmate's conviction. Id. Inmates, like Miller, whose certificates of judgment issued prior to June 1, 2018, had from June 1 until July 2, 2018,[2] to elect nitrogen hypoxia in writing to the warden. Id. at § 15-18-82.1(b)(2).

Any writing from the inmate is sufficient under the statute. An inmate's failure to elect nitrogen hypoxia within the thirty-day period operates as a waiver of that method of execution.

2. Background Regarding Distribution of the Election Form

On June 26, 2018, attorneys with the Federal Defenders for the Middle District of Alabama's Capital Habeas Unit traveled to Holman to meet with their clients, notify them of the change in the law, and answer questions regarding nitrogen hypoxia. During this meeting, the Federal Defenders provided a typewritten form that their clients could sign and submit to the warden to effectuate a nitrogen hypoxia election.

Sometime after this June 26 meeting, but before the statutory deadline of July 2, 2018, Holman's then-warden, Cynthia Stewart, obtained the Federal Defenders' election form, and at the direction of someone above her at the ADOC, she instructed Correctional Captain Jeff Emberton to distribute a copy of the form along with a blank envelope to every inmate on Holman's death row. Captain Emberton then distributed a blank form to each death row inmate and collected the forms from inmates later the same day.

3. Miller's Execution Date Is Set

With Miller's appeals of his conviction and death sentence exhausted, on April 19, 2022, Attorney General Marshall moved the Alabama Supreme Court to set Miller's execution date. (Doc. 52-22.) On May 18, 2022, Miller filed an objection to the State's motion, arguing that setting an execution date was premature because Miller had timely elected execution by nitrogen hypoxia, and the State had not yet established a protocol for conducting nitrogen hypoxia executions. (Doc. 52-23.) In support of his objection, Miller submitted an affidavit asserting that in June or July of 2018, a correctional officer at Holman passed out forms to individuals on death row concerning an election to be executed by nitrogen hypoxia, that Miller completed and signed the form, and that he returned the form to a correctional officer “at the same time that he was collecting forms from everyone else.” (Doc. 18-1.)

Attorney General Marshall responded to Miller's opposition on May 27, 2022, claiming there was no evidence that Miller had elected execution by nitrogen hypoxia. (Doc. 18-3.) To support his position, Attorney General Marshall filed an affidavit from Warden Raybon, asserting that the ADOC's nitrogen hypoxia file had no record of an election form from Miller. (Id. at 8.)

Miller then filed a reply brief asserting that the State's response created a factual dispute regarding the existence of Miller's election form and requesting the case be remanded to an Alabama trial court to resolve the dispute. (Doc. 52-27.) On July 18, 2022, the Alabama Supreme Court, over a dissent from the Chief Justice, granted the State's motion and set Miller's execution for September 22, 2022.[3] (Doc. 52-28.)

4. Miller's § 1983 Lawsuit

In his Amended Complaint, Miller brings three causes of action against the Defendants in their official capacities. (Doc. 18.) First, Miller claims the Defendants violated his procedural due process rights under the Fourteenth Amendment “by failing to ensure an adequate procedure for protecting his election to be executed by nitrogen hypoxia.” (Id. at 15.)

Second Miller alleges the Defendants violated his right to equal protection under the Fourteenth Amendment by treating him differently from similarly situated death row inmates at Holman who, like Miller, timely submitted nitrogen hypoxia election forms. (Doc. 18 at 17.) One inmate mentioned by Miller was Jarrod Taylor, who had his execution motion withdrawn by Attorney General Marshall in 2019 after Taylor claimed that he had elected nitrogen hypoxia. (Doc. 18-2.) Neither the Attorney General's Office nor the ADOC could find Taylor's election form in...

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