Muhammad v. Sec'y

• Decision Date: 07 January 2014
• Docket Number: No. 14–10024.,14–10024.
• Citation: 739 F.3d 683
• Parties: Askari Abdullah MUHAMMAD, f.k.a. Thomas Knight, Plaintiff–Appellant, v. SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Warden, Florida State Prison, Attorney General, State of Florida, Does 1–50 in their official capacity, Defendants–Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

739 F.3d 683

Askari Abdullah MUHAMMAD, f.k.a. Thomas Knight, Plaintiff–Appellant,

v.SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Warden, Florida State Prison, Attorney General, State of Florida, Does 1–50 in their official capacity, Defendants–Appellees.

No. 14–10024.

United States Court of Appeals,Eleventh Circuit.

Jan. 7, 2014.

Linda Mcdermott, Mcclain & Mcdermott, PA, Wilton Manors, FL, for Plaintiff–Appellant.

Sandra Jaggard, Attorney General's Office, Miami, FL, for Defendants–Appellees.

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 3:13–cv–01587–TJC–JBT.

Before MARCUS, WILSON, and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

Askari Muhammad murdered a prison guard, Richard James Burke, by stabbing him more than a dozen times with a knife made from a sharpened serving spoon, and a Florida trial court convicted Muhammad of first-degree murder and sentenced him to death. When he murdered Burke, Muhammad was already serving a death sentence for his separate murders of a Miami couple. State and federal courts have affirmed his death sentence on direct and collateral review.

On October 21, 2013, the Governor of Florida signed a death warrant for Muhammad, who is scheduled to be executed on January 7, 2014, at 6 p.m. Muhammad then filed in the district court a civil action challenging the method of execution in Florida as cruel and unusual under the Eighth Amendment, 42 U.S.C. § 1983, even though the Supreme Court of Florida, on December 19, 2013, rejected the identical claim and ruled that the method of execution is not cruel or unusual. See Muhammad v. State, No. SC13–2105, ––– So.3d ––––, 2013 WL 6869010 (Fla. Dec. 19, 2013). He also filed a motion for a stay of execution and an amended motion for a stay of execution, both of which the district court denied. Muhammad now appeals to our Court and asks us to reverse the decisions of the district court and to grant a stay of execution. We AFFIRM the denial of the motions for a stay of execution by the district court, and we DENY the application for a stay of execution Muhammad filed in our Court.

I. BACKGROUND

On October 29, 2013, less than two months before this federal litigation began, Muhammad filed in a circuit court of Florida a motion to vacate the judgment of his conviction and sentence, which raised an identical challenge to the use of midazolam hydrochloride in the three-drug lethal injection protocol that he now raises in federal court. Muhammad argued in the circuit court that the use of midazolam hydrochloride, the first drug in the three-drug lethal injection protocol that the State of Florida approved on September 9, 2013, violates the prohibition of cruel and unusual punishments in the Eighth Amendment. The motion alleged that midazolam hydrochloride does not effectively anesthetize the inmate before the second and third drugs are administered, and, as a result, the inmate is subject to “intolerable risks of pain and suffering.” On November 18, 2013, the Supreme Court of Florida stayed Muhammad's execution and ordered an evidentiary hearing on the effect of midazolam hydrochloride. On November 21, 2013, an evidentiary hearing was held, in which Agent Jonathan Feltgan, a Florida Department of Law Enforcement Inspector, Dr. Mark Heath, an expert for the defense, and Dr. Roswell Lee Evans, an expert for the State, testified. After the evidentiary hearing, the circuit court denied relief on the grounds that the dosage of midazolam hydrochloride would render a person insensate and there was no evidence that the use of the drug in the three-drug protocol would result in a substantial risk of serious harm.

The Supreme Court of Florida affirmed the decision of the circuit court that the use of midazolam hydrochloride did not create a substantial risk of serious harm, as follows:

The Supreme Court's plurality decision in Baze [ v. Rees ] held that the petitioners in that case “have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol”constitutes cruel and unusual punishment. [553 U.S. 35, 41, 128 S.Ct. 1520, 1526, 170 L.Ed.2d 420 (2008) ]. Muhammad makes a similar claim in this case that, if not properly administered and if the individual's level of consciousness is not properly determined, the use of midazolam hydrochloride will result in severe and needless suffering when the two subsequent drugs are administered. However, Dr. Heath agreed that the dosage of midazolam hydrochloride called for in the protocol, if properly administered together with adherence to the procedures for determining consciousness, will result in an individual who is deeply unconscious and who would feel no pain when the remaining drugs are administered.

We reject Muhammad's invitation to presume that the DOC will not act in accordance with its lethal injection procedures adopted by the DOC. The sufficiency of those procedures, other than the recent substitution of the midazolam hydrochloride as the first drug, were previously approved by this Court after a comprehensive evidentiary hearing in Lightbourne v. McCollum, 969 So.2d 326 (Fla.2007). When we relinquished for an evidentiary hearing in Valle [ v. State] to examine the safety and efficacy of pentobarbital, which had been substituted as the first drug in the three-drug lethal injection protocol, we reiterated that the portion of Florida's lethal injection protocol ensuring that an inmate will be unconscious prior to administration of the second and third drugs has not been altered since the protocol was approved in Lightbourne.Valle [ v. State ], 70 So.3d [530] at 541 n. 12 [ (Fla.2011) ]. Under that protocol, “he will not be injected with the final two drugs, and the execution will be suspended until Valle is unconscious.” Id. In the instant case, as we said in Valle, the remainder of the protocol has not been revised. We presume that the DOC will follow its own procedures and Muhammad will not be injected with the final two drugs until he is unconscious.

We acknowledge that, as we explained in Lightbourne, if the inmate is not fully unconscious when the second and third drugs, vecuronium bromide and potassium chloride, are administered, the inmate will suffer pain. See Lightbourne, 969 So.2d at 351. However, we agree with the circuit court that Muhammad has not demonstrated that the conditions presenting this risk are “sure or very likely” to cause serious illness or needless suffering and give rise to “sufficiently imminent dangers” under the standard set forth in Baze. Thus, we reject his constitutional challenge to the use of midazolam hydrochloride in the lethal injection procedure. See also Valle, 70 So.3d at 540–41 (rejecting challenge to newly-revised protocol substituting pentobarbital for the first drug in the three-drug protocol because Valle failed to show that the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers).

Muhammad, ––– So.3d at ––––, 2013 WL 6869010, at *10–11 (footnotes omitted). On December 27, 2013, Muhammad petitioned for a writ of certiorari from the Supreme Court of the United States, which is still pending.

On December 23, 2013, Muhammad filed a complaint in the district court raising the same challenge to the lethal injection protocol against Michael Crews, in his official capacity as the Secretary of the Florida Department of Corrections, John Palmer, in his official capacity as the Warden of Florida State Prisons, Pam Bondi, in her official capacity as the Attorney General of Florida, and Does 1–50, executioners for the State of Florida. Muhammad's federal complaint alleged, like his state-court motion, that the use of midazolam hydrochloride, the first drug in the three-drug lethal injection protocol, violates the prohibition of cruel and unusual punishments in the Eighth Amendment. See42 U.S.C. § 1983. The federal complaint alleged verbatim that midazolam hydrochloride, used to render the inmate unconscious, is not as effective as other drugs used as anesthetics in executions. The complaint alleged that the consciousness check currently in use is inadequate to ensure the inmate remains unconscious for the entire execution. Moreover, the complaint alleged that midazolam hydrochloride takes more time to take effect, but that the Department of Corrections did not adjust its lethal injection protocol to increase the amount of time between the injection of midazolam hydrochloride and the second and third drugs and “the failure to adjust the protocol or wait the prescribed amount of time creates a substantial risk of harm to Mr. Muhammad because he will be injected with an agonizing paralytic before the midazolam has ablated consciousness.” The federal complaint relied on news articles, which reported that an inmate moved in a previous execution after the drug was administered, and testimony from the evidentiary hearing on the use of the drug ordered by the Supreme Court of Florida.

Muhammad also filed a motion to stay his execution, which the district court denied. Muhammad argued that a stay was warranted because the testimony from the state-court evidentiary hearing established that the use of midazolam hydrochloride created a substantial risk of serious harm. The district court denied the motion because Muhammad failed to establish a substantial likelihood of success on the merits. The district court ruled that the statute of limitations barred his claim. Alternatively, the district court ruled that Muhammad's Eighth Amendment challenge was unlikely to succeed on the merits.

Muhammad filed a motion for reconsideration of the denial of the stay, which the district court denied. Before the district court ruled on the motion, the district court ordered the Florida officials to produce documents it disclosed in other state-court litigation...