Nance v. Comm'r Ga. Dep't of Corr.

• Decision Date: 20 April 2021
• Docket Number: No. 20-11393,20-11393
• Citation: 994 F.3d 1335 (Mem)
• Parties: Michael NANCE, Plaintiff-Appellant, v. COMMISSIONER GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic and Classification Prison, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

994 F.3d 1335 (Mem)

Michael NANCE, Plaintiff-Appellant,

v.COMMISSIONER GEORGIA DEPARTMENT OF CORRECTIONS, Warden, Georgia Diagnostic and Classification Prison, Defendants-Appellees.

No. 20-11393

United States Court of Appeals, Eleventh Circuit.

Date Filed: April 20, 2021

Matthew David Friedlander, Laurie Webb Daniel, Holland & Knight, LLP, Atlanta, GA, Anna Arceneaux, Vanessa Judith Carroll, Cory Isaacson, Georgia Resource Center, Atlanta, GA, Alixandria Lynn Davis, Ryan Elizabeth Harbin, John P. Hutchins, Baker & Hostetler, LLP, Atlanta, GA, for Plaintiff-Appellant.

Clint Christopher Malcolm, Beth Attaway Burton, Sabrina Graham, Attorney General's Office, Atlanta, GA, for Defendants-Appellees.

Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.^*

BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this appeal should be reheard by the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this appeal will not be reheard en banc.

WILLIAM PRYOR, Chief Judge, joined by NEWSOM and LAGOA, Circuit Judges, statement respecting the denial of rehearing en banc:

A majority of judges voted not to rehear this appeal en banc. As author of the panel-majority opinion, I write to respond to my dissenting colleagues’ arguments that the panel opinion is irreconcilable with Supreme Court and circuit precedent and that it leaves some prisoners without a remedy in federal court. Neither charge is true.

Before I discuss the dissent's arguments, I want to set the record straight on a procedural matter: the panel's resolution of this appeal on jurisdictional grounds was not a surprise to the parties. Two weeks before oral argument, the panel directed the parties to be prepared to address our jurisdiction. The panel explained that "[l]ethal injection is the only method of execution authorized by Georgia law," and pointed out that Nance was "seek[ing] an injunction that would foreclose the State from implementing his death sentence under its present law." Given that premise, the panel asked the parties whether "[Nance's] section 1983 claim amount[ed] to a challenge to the fact of his sentence itself that must be reconstrued as a habeas petition," and whether, "[i]f Nance's claim [was] a habeas petition, ... it [was] second or successive[.]"

In its order to the parties, the panel framed the issue by quoting passages from Bucklew v. Precythe , ––– U.S. ––––, 139 S. Ct. 1112, 1128, 203 L.Ed.2d 521 (2019) ("An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State's law. ... [But] existing state law might be relevant to determining the proper procedural vehicle for the inmate's claim."), Hill v. McDonough , 547 U.S. 573, 582, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) ("If the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper."), and Nelson v. Campbell , 541 U.S. 637, 644, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004) ("In a State ... where the legislature has established lethal injection as the preferred method of execution, a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself." (citation omitted)). In doing so, the panel gave Nance and his counsel a preview of what would eventually become the majority opinion.

Nance's counsel came to oral argument prepared, and most of the argument was devoted to the jurisdictional issue. And Nance provided supplemental authority on the issue one week after oral argument. The dissent suggests that that panel did not "giv[e] the parties an adequate opportunity to prepare to address the issue," Dissent at 1340, but neither party asked the panel to submit supplemental briefing. Our obligation to consider subject-matter jurisdiction sua sponte may sometimes catch parties by surprise, but it did not in this appeal.

The dissent's justifications for rehearing Nance's appeal en banc are unpersuasive. The most the dissenters can say about any direct conflict between the panel opinion and Supreme Court precedent is that "[n]one of [the Supreme Court's] vaguely worded dicta [relied on by the panel opinion] is irreconcilable" with the dissent's preferred resolution of Nance's appeal. Id. at 1339. But even if some other approach would not have been "irreconcilable" with the decisions of the Supreme Court, it does not follow that the panel opinion is itself inconsistent with Supreme Court precedent.

The dissent also suggests the panel opinion is somehow inconsistent with what it claims the Supreme Court did not say in Bucklew . The dissent says it is "inconceivable" that the Supreme Court would have "emphasized that a prisoner can point to an alternative method of execution authorized in another State," see Bucklew , 139 S. Ct. at 1128 ("An inmate seeking to identify an alternative method of execution is not limited to choosing among those presently authorized by a particular State's law."), without pairing that substantive holding with a warning that pleading an unauthorized method might have serious procedural implications. Dissent at 1340. The Supreme Court apparently found that possibility "inconceivable" as well. Only four sentences after its substantive holding, the Supreme Court issued the exact warning the dissent claims it did not:

[E]xisting state law might be relevant to determining the proper procedural vehicle for the inmate's claim. ... [I]f the relief sought in a [section] 1983 action would foreclose the State from implementing the inmate's sentence under present law, then recharacterizing a complaint as an action for habeas corpus might be proper.

Bucklew , 139 S. Ct. at 1128 (alteration adopted) (internal quotation marks omitted). The panel opinion is consistent with Supreme Court precedent.

The panel opinion is also consistent with circuit precedent. The dissent suggests that it is "well-established in our circuit that, not only can a prisoner plead a method of execution not authorized under state law, but [section] 1983 is the proper avenue of relief, and, as a corollary, such claims cannot be brought in habeas." Dissent at 1339. But the opinions the dissent cites in support of its claim do not establish any such blanket rule for method-of-execution challenges. One of the opinions did not involve a method-of-execution challenge at all. See Hutcherson v. Riley , 468 F.3d 750, 754 (11th Cir. 2006) ("On appeal, Hutcherson frames his issue for review as ... a denial of [his] rights to counsel as envisioned in the Sixth Amendment to the United States Constitution and Due Process of Law as envisioned in the Fifth and Fourteenth Amendments to the United States Constitution[.]"). And the other opinions involved garden-variety challenges to specific lethal-injection procedures that clearly did not imply the invalidity of the entire sentence. McNabb v. Comm'r Ala. Dep't of Corr. , 727 F.3d 1334, 1344 (11th Cir. 2013) (prisoner's claim that "an ineffective first drug or improper administration of a first drug in a three-drug protocol would violate the [C]onstitution" was improperly brought in a habeas petition); Tompkins v. Sec'y, Dep't of Corr. , 557 F.3d 1257, 1259, 1261 (11th Cir. 2009) (prisoner's claim "involving lethal injection procedures " was improperly brought in a habeas petition (emphasis added)). None of the opinions decided the proper procedural vehicle for the type of method-of-execution challenge Nance presents, which the Court previously and incorrectly believed was foreclosed as a matter of substantive constitutional law. See Arthur v. Comm'r, Ala. Dep't of Corr. , 840 F.3d 1268, 1317 (11th Cir. 2016) ("[A] prisoner must identify an alternative that is ‘known and available’ to the state in question ...." (emphasis added)), abrogated in part by Bucklew , 139 S. Ct. 1112. Nance's appeal presented an issue of first impression, and the panel opinion does not conflict with any binding precedent.

Finally, the dissent argues that the Court should have reconsidered Nance's appeal en banc because the panel opinion may leave some prisoners without access to a federal forum in which to litigate their method-of-execution challenges, which the dissent says renders the appeal a question of exceptional importance for the full court. Dissent at 1340. But the panel opinion does not close the federal courts to prisoners. Prisoners may allege in habeas petitions alternative methods of execution that are unauthorized by state law. And they may bring more traditional challenges to an execution protocol under section 1983. For example, Nance was free to insist that Georgia modify its venous-access protocol or choice of injection drug in his complaint under section 1983. All the panel opinion does is recognize that Congress denies us the power—regardless of whether a petitioner alleges a violation of his substantive constitutional rights—to provide a forum or a remedy for a claim in an unauthorized second or successive habeas petition. See 28 U.S.C. § 2244(b). Federal courts do not have jurisdiction to provide the remedy for every right denied, and not every decision reflecting that fact is worthy of en banc review.

WILSON, Circuit Judge, joined by MARTIN and JORDAN, Circuit Judges, dissenting from the denial of rehearing en banc:

Michael Nance, a Georgia death-row prisoner, sought an injunction under 42 U.S.C. § 1983 to bar the state from executing him via lethal injection, and requested an alternate method of execution: firing squad. Nance argued that, because of a unique medical condition, Georgia's lethal-injection protocol will violate his Eighth Amendment right to be free from cruel and unusual punishment. U.S. Const. amend. VIII....