Reeves v. Dunn
| Decision Date | 07 January 2022 |
| Docket Number | CASE NO. 2:20-cv-027-RAH |
| Citation | 580 F.Supp.3d 1060 |
| Parties | Matthew REEVES, Plaintiff, v. Jefferson S. DUNN, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
John Anthony Palombi, Lucie T. Butner, Spencer Jay Hahn, Allyson Renee DuLac, Federal Defenders, Montgomery, AL, for Plaintiff.
Beth Jackson Hughes, Polly Spencer Kenny, Richard Dearman Anderson, Office of the Attorney General - Alabama, Capital Litigation Division, Montgomery, AL, for Defendants Terry Raybon, John Q. Hamm.
Plaintiff Matthew Reeves is an Alabama death row inmate in the custody of the Alabama Department of Corrections (ADOC) at Holman Correctional Facility.1
On January 10, 2020, Reeves filed this lawsuit under 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (ADA) against Defendants Jefferson Dunn, the Commissioner of the ADOC, and Terry Raybon, the Warden at Holman (collectively, the ADOC). Both defendants are sued in their official capacities.
In his Amended Complaint (Doc. 21), Reeves alleges the ADOC violated his rights under the ADA.2 He seeks declaratory and injunctive relief.
This matter is before the Court on Reeves's Motion for Preliminary Injunction (Doc. 27), wherein Reeves seeks to enjoin the ADOC from executing him by any method other than nitrogen hypoxia
before the conclusion of this litigation. The motion has been fully briefed (Docs. 42, 48), and the parties have submitted over two thousand pages of evidence. On December 9, 2021, the Court conducted an evidentiary hearing, during which it heard over seven hours of testimony and oral argument on the motion. Following this hearing, the parties submitted supplemental briefing in support of their respective positions. (Docs. 81, 82.) This matter is ripe for review.
For the following reasons, Reeves's motion for preliminary injunction is due to be granted.
In 1998, Reeves was convicted of murdering Willie Johnson during a robbery in the first degree. By a vote of 10–2, the jury recommended that Reeves be sentenced to death. The trial court followed the jury's recommendation.
On appeal, the Alabama Court of Criminal Appeals affirmed Reeves's conviction and sentence. Reeves v. State , 807 So. 2d 18 (Ala. Crim. App. 2000). The Alabama Supreme Court denied Reeves's petition for certiorari review and on June 8, 2001, the appeals court issued a certificate of judgment. Id. Reeves's direct appeal concluded on November 13, 2001, when the United States Supreme Court denied his petition for a writ of certiorari. Reeves v. Alabama , 534 U.S. 1026, 122 S.Ct. 558, 151 L.Ed.2d 433 (2001).
In October 2002, Reeves filed a petition in the trial court for collateral relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Reeves raised an Atkins claim in this petition. In Atkins v. Virginia , the Supreme Court held that executing a person with an intellectual disability violates the Eighth Amendment. 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In his petition, Reeves claimed that the Atkins decision prohibited his execution because he is intellectually disabled. In November 2006, the state circuit court held an evidentiary hearing on Reeves's claims. See Reeves v. State , 226 So. 3d 711, 722 (Ala. Crim. App. 2016). At this hearing, Reeves's medical expert, Dr. John Goff, testified that Reeves suffered from significantly subaverage intellectual functioning, while the State's expert, Dr. Glen King, testified that Reeves falls within the borderline range of intellectual functioning. The circuit court found that Reeves's intellectual functioning, while subaverage, was not so low that he would meet the first prong of his Atkins intellectual disability claim. It also found that Reeves failed to prove that he suffered from significant deficits in at least two areas of adaptative functioning. On appeal, the Alabama Court of Criminal Appeals affirmed the circuit court's decision. Reeves , 226 So. 3d at 741. The Alabama Supreme Court denied Reeves's petition for a writ of certiorari, as did the United States Supreme Court. Reeves v. Alabama , ––– U.S. ––––, 138 S. Ct. 22, 199 L.Ed.2d 341 (2017) (Sotomayor, J., dissenting).
Reeves then filed a federal habeas corpus petition, pursuant to 28 U.S.C. § 2254, again raising an Atkins claim. Ultimately, the district court denied Reeves's habeas petition, concluding that he was not entitled to relief on any of his claims. The district court did, however, grant Reeves a Certificate of Appealability with respect to the claim that his trial counsel was ineffective for failing to hire an expert to investigate his intellectual disability. Reeves v. Dunn , Case No. 1:17-cv-061-KD-MU, 2019 WL 12469769 (S.D. Ala. Jan. 8, 2019).
In May 2019, Reeves appealed the denial of his habeas petition to the Eleventh Circuit. See Reeves v. Comm'r Ala. Dep't of Corr. , No. 19-11779-P (11th Cir. 2019). The Eleventh Circuit affirmed the denial of Reeves's intellectual disability claim, but reversed on the issue of ineffective assistance of counsel at the penalty phase. Reeves v. Comm'r , 836 F. App'x 733 (11th Cir. 2020). The U.S. Supreme Court granted certiorari, reversed the Eleventh Circuit's decision, and remanded the case for further proceedings. See Dunn v. Reeves , ––– U.S. ––––, 141 S. Ct. 2405, 210 L.Ed.2d 812 (2021). Thereafter, the Eleventh Circuit affirmed the district court's denial of habeas relief, concluding Reeves's appeals. See Reeves v. Comm'r Ala. Dep't of Corr. , 855 F. App'x 657 (Mem) (11th Cir. 2021).
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 grants death row inmates a single opportunity to elect that their execution be carried out by a new method called nitrogen hypoxia
, in lieu of Alabama's default method, lethal injection. ALA. CODE § 15-18-82.1(b). The process requires any inmate who wants to elect nitrogen hypoxia to notify his or her warden of that choice in writing within thirty days after a certificate of judgment is issued affirming the inmate's conviction. Id. Inmates, like Reeves, whose certificates of judgment issued prior to June 1, 2018, had from June 1 until June 30, 2018, to elect nitrogen hypoxia in writing. 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. Other than requiring that a warden accept written elections from death row inmates during the statutory election period, the statutory language imposes no other duty—or restriction—on the ADOC. The statute's language does not preclude the ADOC from honoring a late election. Indeed, in its Answer to Reeves's Amended Complaint, the ADOC admits that "Commissioner Dunn has the authority to alter, amend, or make exceptions to the protocol and procedures governing the execution of death-sentenced prisoners in the State of Alabama." (Doc. 21 at 2; Doc. 52 at 3.)
On June 26, 2018, the 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
. (Doc. 21 at 4.) 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. (Id. ) This "election form" read as follows:
ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA
Pursuant to Act No. 2018-353, if I am to be executed, I elect that it be by nitrogen hypoxia rather than by lethal injection.
This election is not intended to affect the status of any challenge(s) (current or future) to my conviction(s) or sentence(s), nor waive my right to challenge the constitutionality of any protocol adopted for carrying out execution by nitrogen hypoxia.
Dated this ____ day of June, 2018.
| ____________________ | ____________________ |
| Name/Inmate Number | Signature |
(Doc. 70-5.) After this meeting, many of the Federal Defenders’ clients opted into nitrogen hypoxia
. Some of them did not.
Sometime after this June 26, 2018 meeting, but before the statutory deadline of June 30, 2018, Holman's then-warden, Cynthia Stewart, obtained the Federal Defenders’ election form and, at the direction of someone above her at the ADOC, instructed Correctional Captain Jeff Emberton to distribute a copy of the form along with an envelope to every inmate on Holman's death row. (Doc. 27 at 15; Doc. 42 at 33.) As he handed out the forms, Emberton claims he told inmates that the law had changed and that if they wanted to elect nitrogen hypoxia
, they needed to fill out the form, put it in the envelope, and that he would return later to collect any signed forms. (Doc. 21 at 4; Doc. 42-4 at 124, 193–94.) Numerous inmates used the form to elect nitrogen hypoxia. A few others elected nitrogen hypoxia by a different writing. Many inmates, including Reeves, made no election at all.
When the Alabama Code was amended to add nitrogen hypoxia
as an alternative method of execution, and throughout the June 2018 election period, the ADOC had not yet developed a protocol for performing nitrogen hypoxia executions. And as of the date of this order, "[a]lthough the ADOC has been working on a hypoxia protocol for more than three years, there is still no working protocol in place ...." (Doc. 23 at 37.) During oral argument on the pending motion, counsel for the ADOC represented that she expects to "have everything completely ready to go" within "the first three or four months" of 2022. (Doc. 78 at...
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