Nance v. Comm'r, Ga. Dep't of Corr., No. 20-11393

• Decision Date: 02 December 2020
• Docket Number: No. 20-11393
• Citation: 981 F.3d 1201
• 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

981 F.3d 1201

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.

December 2, 2020

Matthew David Friedlander, Laurie Webb Daniel, Holland & Knight, LLP, Anna Arceneaux, Vanessa Judith Carroll, Cory Isaacson, Georgia Resource Center, 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, MARTIN and LAGOA, Circuit Judges.

WILLIAM PRYOR, Chief Judge:

This appeal requires us to decide whether a method-of-execution claim that would have the necessary effect of preventing the prisoner's execution should be brought as a civil-rights action, 42 U.S.C. § 1983, or as a petition for a writ of habeas corpus, 28 U.S.C. § 2254. Michael Wade Nance argues that Georgia's lethal-injection protocol, as applied to his unique medical situation, violates the Eighth Amendment and that the firing squad is a readily available alternative. He sued under section 1983 for an injunction to bar the State from executing him by lethal injection—the only method of execution under Georgia law. See Ga. Code § 17-10-38(a). To be sure, the Supreme Court has permitted prisoners to seek relief under section 1983 when a prisoner's proposed alternative method of execution "would have allowed the State to proceed with the execution as scheduled" under current state law. Nelson v. Campbell , 541 U.S. 637, 646, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). But Nance complains that the Constitution bars Georgia from executing him by any method of lethal injection, regardless of the protocol. The Supreme Court has mentioned the possibility of a complaint like Nance's on three occasions and warned that it might not be cognizable under section 1983. See Bucklew v. Precythe , ––– U.S. ––––, 139 S. Ct. 1112, 1128, 203 L.Ed.2d 521 (2019) ; Hill v. McDonough , 547 U.S. 573, 582, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006) ; Nelson , 541 U.S. at 644, 124 S.Ct. 2117. We now decide it is not. Because the injunction Nance seeks would necessarily imply the invalidity of his death sentence, his complaint must be reconstrued as a habeas petition. And because that petition is second or successive, we vacate and remand with instructions to dismiss for lack of jurisdiction.

I. BACKGROUND

In 1993, Nance went to a bank in Gwinnett County, Georgia, pulled a ski mask over his face, threatened the tellers with a gun, and left with two pillowcases full of cash. After Nance got into his car, dye packs hidden in the stolen cash exploded. He then decided to abandon the vehicle. He crossed the street to a nearby liquor store, where he found Gabor Balogh backing his car out of a parking space. Nance ran around the front of Balogh's car, yanked open the door, and pointed his gun at Balogh. As Balogh pleaded for his life, Nance pulled the trigger and shot him dead.

A jury convicted Nance of murder in 1997, and he was sentenced to death. He was resentenced to death after a new sentencing trial in 2002, and the Georgia Supreme Court affirmed that sentence on direct appeal. The Georgia Supreme Court rejected his petition for collateral relief in 2013. Nance then filed a federal habeas petition, see 28 U.S.C. § 2254, and we affirmed the order denying that petition.

Nance filed this civil-rights action, see 42 U.S.C. § 1983, on January 8, 2020, and alleged that the State's lethal-injection protocol was unconstitutional as applied to him because of two medical issues. First, he alleged that, due to his compromised veins, he would be subjected to excruciating pain during attempts to establish venous access for his execution, that he would be subjected to painful leakage of the injection drug even if venous access was established, and that the State's alternative methods to establish venous access would not be performed humanely. Second, he alleged that his use of gabapentin

, a drug that he has been prescribed for his back pain since 2016, had altered his brain chemistry in a way that would diminish the efficacy of the lethal injection drug and leave him sensate and in extreme pain during his execution. Nance alleged that death by firing squad was a feasible and readily implemented alternative method of execution that would significantly reduce his substantial risk of severe pain. He sought a declaratory judgment as well as "injunctive relief to enjoin the [State] from proceeding with [his] execution ... by a lethal injection."

The State moved to dismiss Nance's complaint on January 30, 2020. It argued that Nance's claim was untimely, that he failed in his complaint to allege sufficient facts to support a plausible claim for relief, and that he failed to exhaust his administrative remedies. The district court granted the State's motion to dismiss. It concluded that Nance's suit was untimely and that he failed to state a claim for relief with respect to his venous-access theory because he did not allege plausible facts establishing that his compromised veins created the requisite risk of suffering for a valid claim under the Eighth Amendment. After Nance appealed, we directed the parties to address at oral argument whether Nance's complaint should be reconstrued as a habeas petition and, if so, whether it was second or successive.

II. STANDARD OF REVIEW

We are obligated to address subject-matter jurisdiction sua sponte . Mallory & Evans Contractors & Eng'rs, LLC v. Tuskegee Univ. , 663 F.3d 1304, 1304 (11th Cir. 2011). A district court lacks subject-matter jurisdiction over a state prisoner's second or successive petition for a writ of habeas corpus absent an order from the court of appeals authorizing it to consider the petition. Williams v. Chatman , 510 F.3d 1290, 1295 (11th Cir. 2007).

III. DISCUSSION

To succeed in a method-of-execution challenge under the Eighth Amendment, a prisoner "must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason." Bucklew , 139 S. Ct. at 1125 (citing Glossip v. Gross , 576 U.S. 863, 869–78, 135 S.Ct. 2726, 192 L.Ed.2d 761 (2015), and Baze v. Rees , 553 U.S. 35, 52, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion)). In most method-of-execution challenges, prisoners satisfy the alternative-method requirement of the Baze - Glossip test by alleging that the State could make changes to its lethal-injection protocol that would significantly reduce the prisoner's risk of pain. See, e.g. , Jordan v. Comm'r, Miss. Dep't of Corr. , 947 F.3d 1322, 1325 (11th Cir. 2020) (prisoners alleged that single-injection protocol might reduce risk of pain and was a known and available alternative to State's three-drug protocol). Nance takes a different approach.

Nance alleges that death by firing squad is a feasible and readily implemented alternative method of execution, and he seeks an injunction barring the use of lethal injection. But Georgia law authorizes execution only by lethal injection. See Ga. Code § 17-10-38(a). It is not necessarily fatal to the merits of Nance's claim that the State does not authorize his alleged alternative method of execution. See Bucklew , 139 S. Ct. at 1128 ("[T]he Eighth Amendment is the supreme law of the land, and the comparative assessment it requires can't be controlled by the State's choice of which methods to authorize in its statutes."). But a court considering the merits of a complaint like Nance's must "inquire into the possibility that one State possessed a legitimate reason for declining to adopt" the alleged alternative method. Id. And alleging an alternative method of execution that is not authorized by the State's law not only complicates the merits of a method-of-execution challenge; it has procedural implications as well.

We divide our discussion of those procedural implications in two parts. First, we explain that Nance's complaint must be reconstrued as a habeas petition because an injunction preventing the State from executing a prisoner under its present law necessarily implies the invalidity of that prisoner's sentence. Second, we explain that Nance's habeas petition is second or successive and that the district court lacked jurisdiction to consider it.

A. A Section 1983 Claim for Relief That Would Prevent a State from Executing a Prisoner Under Present Law Must be Reconstrued as a Habeas Petition.

Two statutes establish the procedural landscape for method-of-execution claims. Section 1983 authorizes "an action at law, suit in equity, or other proper proceeding for redress" against any person who, under color of state law, "subjects ... any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution ...." 42 U.S.C. § 1983. This general language covers Nance's suit: the Eighth Amendment secures the right not to be subjected to a "method of execution [that] cruelly superadds pain to the death sentence." Bucklew, 139 S. Ct. at 1125. But a specific statute controls over a general one, Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts § 28, at 183 (2012), and the more-specific federal habeas statute, 28 U.S.C. § 2254, provides an exclusive remedy when it applies, Preiser v. Rodriguez , 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973).

Prisoners challenging their convictions or the duration of their sentences proceed exclusively through habeas, and prisoners challenging the conditions of their confinement proceed exclusively through section 1983. "Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or...