Reynolds v. Strickland

• Decision Date: 05 October 2009
• Docket Number: No. 08-4144.,08-4144.
• Citation: 583 F.3d 956
• Parties: Lawrence REYNOLDS, Plaintiff-Appellant, v. Ted STRICKLAND, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

583 F.3d 956

Lawrence REYNOLDS, Plaintiff-Appellant, v. Ted STRICKLAND, et al., Defendants-Appellees.

No. 08-4144.

United States Court of Appeals, Sixth Circuit.

October 5, 2009.

Before MARTIN, COLE, and SUTTON, Circuit Judges.

ORDER

BOYCE F. MARTIN, JR., Circuit Judge.

Lawrence Reynolds, an inmate on death row in the State of Ohio, has moved for a stay of his execution, currently set for October 8, 2009. Reynolds' current motion is based on an Eighth Amendment challenge to the Ohio lethal injection protocol. As a general proposition, this claim is currently barred by the two-year statute of limitations that we put in place in Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir.2007), reh'g denied en banc, 489 F.3d 775 (6th Cir.2007). However, after we decided Cooey II, Ohio revised its execution protocol in May 2009 and experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom. These disturbing issues give rise to at least two questions: first, whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and second, whether these instances present sufficient new, additional factors to revive Reynolds' Eighth Amendment claims otherwise extinguished by Cooey II.

Broom's arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

For the foregoing reasons, we hereby GRANT Reynolds' motion for a stay of execution and REMAND his case to Judge Frost for fact-finding and evidentiary hearings on the merits of his arguments.

COLE, J. concurring.

Although I fully agree with the Court's order, I write separately to address a number of issues raised by the dissent.

The dissent argues that the State's eighteen unsuccessful efforts to run an intravenous line into Romell Broom's veins over the course of two hours demonstrates the sensibility of Ohio's execution protocol because the State ultimately halted the execution attempt. The argument continues that, if the same problems arise during Reynolds' execution, this execution similarly would be stopped. Thus, the likelihood that he would ultimately prevail in his § 1983 claim is too slim to warrant a stay of execution. This argument misses the mark.

Preliminarily, it overlooks the possibility that Broom has already suffered an Eighth Amendment violation by being subjected to this failed execution attempt. Even if Reynolds' execution similarly was halted partway through, at that point he already may have suffered constitutional harm under Ohio's protocol. Although the details of the failed Broom execution have not yet fully emerged, the initial reports suggest that the execution attempt could provide uniquely relevant evidence in support of the proposition that there is a "demonstrated risk of severe pain" under the revised Ohio protocol. See Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 1537, 170 L.Ed.2d 420 (2008).

The failed Broom execution raises concerns about the risks of maladministration under the Ohio protocol, and its intravenous siting provisions in particular. Ohio's protocol allows for "as much time as is necessary to establish two [intravenous] sites" and the changes specifically grant the execution team members discretion in deciding if and when to abandon such efforts if problems arise. Reynolds raised concerns about the discretion granted to the execution team by the May 2009 revisions prior to the failed Broom execution and has argued that the risks presented by maladministration are part of his "core complaints." That, in the interim, the State's procedures further were called into question increases both the likelihood that Reynolds could ultimately succeed on the merits of his § 1983 claim and the likelihood that, if no stay were to be granted, he would be harmed irreparably.

The dissent also emphasizes that Ohio revised its protocol precisely to alleviate Eighth Amendment concerns. While I have no doubt that Ohio did not revise its execution protocol in order to make executions more cruel or unusual, the State's intent is not at issue. The question is whether the changes to the protocol amount to a factual predicate sufficient to revive Reynolds' Eighth Amendment challenge under Cooey II. Even given the two previous instances when Ohio ran into difficulties administering its lethal injection protocol, the halting of Broom's lethal injection operation prior to its completion was unprecedented. This event only strengthens Reynolds' argument that the May 2009 changes sufficiently raised the risks of maladministration to revive his claims.

Finally, the dissent argues that "the Constitution allows the people to make policy mistakes, ... and correct them for themselves over time, and we should let that process run its course...." However, in considering a motion for a stay of execution, we must balance both the likelihood that the prisoner will prevail on the merits and the likelihood that, if no stay is granted, irreparable harm will occur. Indeed, the State has agreed not to attempt another execution of Broom until the district court can reconsider the matter. In this context, where allowing the process to run its course could result in the severest of consequences, it is more prudent to allow the district court to take these new circumstances into consideration.

SUTTON, Circuit Judge, dissenting.

I have some sympathy for my colleagues' position on this stay motion, but I cannot bring myself to join them.

One way to look at Reynolds' request for a stay—and the only way to look at his underlying appeal—is that it is based on a false premise. He claims that Cooey II was wrongly decided and claims that we, as a three-judge panel, can overrule or sidestep the decision of a prior panel. In that sense, his position is no different from the position of the capital defendant in Getsy v. Strickland, 577 F.3d 309 (6th Cir.2009), where we rejected all of the Cooey II arguments that Reynolds raises in his underlying appeal. One panel cannot overrule another panel.

Another way to look at Reynolds' stay motion—though not his underlying appeal—is that he seeks to make a new argument not addressed in Getsy. His § 1983 claim is not time barred, the argument goes, because, after he filed his appellate briefs, the State attempted to execute Romell Broom on September 15, 2009, the execution team was unable to access a usable vein on Broom after two hours, and at that point the State postponed Broom's execution "to allow the Department [of Rehabilitation and Correction] to recommend appropriate next steps to" Governor Strickland. Ted Strickland, Warrant of Reprieve (Sept. 15, 2009). Because Cooey II suggests that the statute of limitations period may start anew when the execution "protocol ... change[s]" in a way that "relate[s]" to the petitioner's "core complaints," Cooey v. Strickland (Cooey II), 479 F.3d 412, 423 (6th Cir.2007), Reynolds claims that his § 1983 claim is not time barred. But, as far as the record and the parties' papers show, nothing has changed since September 15th, at least nothing that would suggest the State has changed its protocol in a way that risks needless harm to Reynolds. Because the State has not materially altered its protocol, Reynolds has no perch from which to argue that he is challenging a new procedure.

All of this explains why I cannot vote in favor of a stay in Reynolds' case at the panel stage.

But none of this would prevent me from urging the full court to consider Reynolds' claim, to reconsider whether Cooey II was rightly decided and to grant a stay in the interim. I doubt the value of that approach, however, for three reasons. One, while Cooey II is not beyond reproach, I have yet to hear a demonstrably better suggestion for determining when the limitations period should start. The Cooey II panel dealt with a legal issue for which there was little, if any, statutory guidance, and as a result it borrowed a limitations rule from a related area—habeas corpus— that must account for the same kinds of problems associated with eleventh-hour litigation and relitigation that frequently accompany challenges to execution protocols. Id. at 421 (analogizing to habeas corpus based on the same need for "timely enforcement of [the] sentence" and "protect[ing] States from dilatory or speculative suits") (quotation marks omitted). That assuredly was a reasonable choice, even if it remains a choice open to second guessing, as invariably will be the case when there is no direct statutory guidance at hand.

Two, even if there may be other sensible ways to handle the accrual issue, that does not necessarily make a stay appropriate (or for that matter warrant reconsideration of Cooey II). In the context of a stay motion, there is no difference between a time-barred claim and a non-time-barred claim if both claims have the same slim prospect of success. One does not grant a stay to hear a claim, whether it contains a procedural defect or not, if the underlying claim has little chance of success on the merits. That is precisely Reynolds' problem. The objective of this § 1983 lawsuit is to challenge Ohio's underlying execution protocol. Yet, in Baze v. Rees, ___ U.S. ___, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), the Supreme Court rejected an Eighth (and Fourteenth) Amendment...