Rutherford v. McDonough

• Decision Date: 05 October 2006
• Docket Number: No. 06-10783.,06-10783.
• Citation: 466 F.3d 970
• Parties: Arthur D. RUTHERFORD, Plaintiff-Appellant, v. James McDONOUGH, Charlie Crist, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

466 F.3d 970

Arthur D. RUTHERFORD, Plaintiff-Appellant, v. James McDONOUGH, Charlie Crist, Defendants-Appellees.

No. 06-10783.

United States Court of Appeals, Eleventh Circuit.

October 5, 2006.

Linda McDermott, McClain & McDermott, P.A., Wilton Manors, FL, for Rutherford.

On Appeal from the United States District Court for the Northern District of Florida.

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before CARNES, HULL and WILSON, Circuit Judges.

CARNES, Circuit Judge:

The Supreme Court vacated our prior decision, Rutherford v. Crosby (Rutherford I), 438 F.3d 1087 (11th Cir.2006), and remanded this case to us for further consideration in light of that Court's decision in Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006).

A.

Twenty years ago this month Arthur Rutherford was convicted and sentenced to death for the brutal murder of Stella Salmon, a sixty-three year old widow. Rutherford v. Crosby, 385 F.3d 1300, 1302-05 (11th Cir.2004). During the past two decades the validity of his conviction and sentence has been litigated and upheld throughout the state and federal court systems. See id. at 1306. On November 29, 2005, the Governor of Florida signed a death warrant setting Rutherford's execution for the period of January 30-February 6, 2006. The warrant recited that the warden had chosen 6:00 p.m on Tuesday, January 31, 2006 as the time and date of execution.

At 7:00 p.m. on Friday, January 27, 2006 Rutherford filed the underlying 42 U.S.C. § 1983 lawsuit to challenge the three-drug protocol Florida has been using since 2000 to carry out executions by lethal injection. Rutherford's lawsuit came two months after his execution date had been set, and just two week days before his scheduled execution. See Rutherford I, 438 F.3d at 1090 n. 2. The district court dismissed Rutherford's complaint and denied his motion for stay of execution on January 28. Two days later, we affirmed the district court's decision and denied Rutherford's motion for a stay. Id. at 1089-92.¹ At 5:40 p.m. the next day, which was the scheduled date of the execution, the Supreme Court granted a stay of execution pending disposition of the certiorari petition Rutherford had filed earlier that day. Rutherford v. Crosby, 546 U.S. ___, 126 S.Ct. 1191, 163 L.Ed.2d 1144 (2006).

On June 19, 2006 the Supreme Court granted certiorari, vacated our Rutherford I decision, and remanded for further consideration in light of Hill v. McDonough, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), which had been decided in the interim. Rutherford v. McDonough, ___ U.S. ___, 126 S.Ct. 2915, 165 L.Ed.2d 914 (2006). By letter dated that same day, the Supreme Court Clerk formally notified our Clerk of the order and of the fact that pursuant to Supreme Court Rule 45 the Supreme Court's judgment or mandate would not issue in the matter for at least twenty-five more days, and that issuance of it would be further delayed if a timely petition for rehearing were filed in the Supreme Court. Nonetheless, because we wanted to move along our consideration of the matter, without waiting for the official judgment or mandate we instructed the attorneys on June 30 to supplementally brief the question of what this Court should do in light of the Hill decision when this case officially got back before us.

The schedule we set provided that Rutherford's opening brief would be due within 20 days from June 30, the date of our instructions; the State's answer brief would be due within 14 days from receipt of Rutherford's; and he then would have 7 days from receipt of the State's brief to file a reply. Rutherford filed his opening brief on the last possible day under the schedule; the State filed its answer brief several days early; and Rutherford did not file his reply brief when it was due. Instead, the day Rutherford's reply brief was due we received a motion for a thirty-day extension. One of the reasons his attorney gave for needing the extension was that she had taken an eight-day vacation in the midst of the briefing schedule. We denied her request for a 30-day extension but gave her one of twenty-three days, which resulted in her having a total of thirty days from receipt of the State's brief to file Rutherford's reply brief. Rutherford's attorney waited until the last day of that extended period to file the brief, which resulted in completion of the supplemental briefing being delayed until September 1. (In the meantime, we had received the judgment or mandate of the Supreme Court on July 24.)

On September 22, 2006, the Governor of the State of Florida rescheduled Rutherford's execution for the period from October 16 through October 23, 2006. In doing so the Governor noted that the warden had chosen October 18 at 6:00 p.m. as the specific date and time for the execution. No one informed this Court or its Clerk of that development until September 25, which is the date that Rutherford filed a mandamus petition in the Supreme Court and provided our Clerk's Office with a copy of it. The mandamus petition asked the Supreme Court to expeditiously order this Court to remand this case to the district court. The request came despite the fact that Rutherford had never asked this Court to expedite its consideration of the case and his own attorney had delayed the completion of briefing and submission of the case to us for decision. Among other things, the mandamus petition she filed accuses this Court of "sit[ting] upon a capital case remanded to it," and charges that "[t]he Eleventh Circuit and the Florida Attorney General have been the architects of the trap being set to ensnare Mr. Rutherford." The mandamus petition does not disclose that the attorney who penned those allegations took a vacation during the briefing schedule, leading to a delay in submission of the case to us for decision.

In any event, the case having been submitted to us for decision, we turn to a discussion of the issues presented by the Supreme Court's remand.

B.

The district court dismissed on two grounds Rutherford's 42 U.S.C. § 1983 lawsuit challenging Florida's three-drug lethal injection protocol. One ground was that our circuit law at the time required that this type of challenge be brought in a 28 U.S.C. § 2254 proceeding and comply with the restrictions on second or successive habeas petitions set out in § 2244(b). See Hill v. Crosby, 437 F.3d 1084 (11th Cir.2006), rev'd sub nom., Hill v. McDonough, ___ U.S. ___, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006); Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004). Because Rutherford could not meet the requirements for filing a second or successive habeas petition, we affirmed the district court's judgment dismissing his action on that basis. Rutherford I, 438 F.3d at 1089. That basis for our decision is no longer valid in light of the Supreme Court's Hill decision.

There was, however, a second ground for the dismissal. The district court also dismissed Rutherford's lawsuit on the alternative ground that he could and should have brought it earlier. Id., at 1101-03 (appendix containing district court opinion). After discussing that ground at some length, we affirmed on the basis of it, as well. Id. at 1090-93. We will not repeat here all that we said there. Suffice it to say that, as the district court found, Rutherford did unnecessarily delay bringing this claim. He deliberately waited until the last few days before his execution to file what he could have filed many months, if not years, earlier. He could have brought the claim in plenty of time to permit full consideration of it without any need to stay the execution order that was finally entered in the case. Id.

We explained in our prior opinion that because of the alternative holding Rutherford would lose even if the Supreme Court in Hill knocked the first prop out of our decision, which is exactly what it did. Id., at 1093 ("[E]ven if the Supreme Court decides in the Hill case to overturn our Hill and Robinson decisions and holds that this type of claim is cognizable in a § 1983 proceeding, Rutherford still will not be entitled to any equitable relief because of the district court's independently adequate alternative ground for dismissing his complaint, which we are affirming in this opinion. Neither of the two questions on which certiorari was granted in Hill touch on that alternative ground."). We are as convinced of that conclusion now as we were then, if not more so.

Nothing in the Supreme Court's Hill opinion conflicts with our conclusion about how the equitable principles play out in this case, and there is much in that opinion to support our conclusion. Part III of the Hill opinion recognizes that "[b]oth the State and the victims of crime have an important interest in the timely enforcement of a sentence," and the opinion states that nothing about the Hill decision should be read to diminish that interest or prevent federal courts from protecting it. 126 S.Ct. at 2104. The Supreme Court reiterated in Hill what it said in Nelson v. Campbell, 541 U.S. 637, 649-50, 124 S.Ct. 2117, 2125-26, 158 L.Ed.2d 924 (2004), about a stay of execution being an equitable remedy, not available as a matter of right, and about how federal courts considering granting a stay must be "sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill, 126 S.Ct. at 2104. It also instructed us that "[a] court considering a stay must also apply `a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.'" Id. (quoting Nelson, 541 U.S. at 650, 124 S.Ct. at 2126).

At the time the Hill decision was announced, a number of federal courts had exercised their equitable powers to dismiss this type of lawsuit on grounds that the claim about the lethal injection procedures and protocol was too speculative...