Sapp, In re

• Decision Date: 27 June 1997
• Docket Number: 97-5768,Nos. 97-5755,s. 97-5755
• Citation: 118 F.3d 460
• Parties: In re Doug SAPP, Commissioner, Kentucky Department of Corrections and Phil Parker, Warden, Kentucky State Penitentiary. Harold McQUEEN, Plaintiff-Appellant, v. Governor Paul E. PATTON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 460

118 F.3d 460

In re Doug SAPP, Commissioner, Kentucky Department of

Corrections and Phil Parker, Warden, Kentucky

State Penitentiary.

Harold McQUEEN, Plaintiff-Appellant, v. Governor Paul E. PATTON, Defendant-Appellee.

Nos. 97-5755, 97-5768.

United States Court of Appeals, Sixth Circuit.

Submitted June 27, 1997.

Decided June 27, 1997.

David A. Smith, Asst. Atty. Gen., Frankfort, KY, for Petitioners in No. 97-5755.

David A. Friedman, Carl Wedekind, American Civil Liberties Union of Kentucky, Louisville, KY, Marguerite Neill Thomas, Asst. Public Advocate and Donna L. Boyce (briefed), Department of Public Advocacy, Frankfort, KY, for Plaintiff-Appellant in No. 97-5768.

David A. Sexton, Asst. Atty. Gen., Civil Division, Frankfort, KY, Connie V. Malone and David A. Smith, Asst. Atty. Gen. (briefed), Frankfort, KY, for Defendant-Appellee in No. 97-5768.

Before: KEITH, KENNEDY, and BOGGS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Harold McQueen is a convicted murderer scheduled to die before sunrise on July 1, 1997, pursuant to an executive order signed by Governor Paul Patton on June 11, 1997. On May 19, 1997, McQueen filed what purports to be a 42 U.S.C. § 1983 action in the United States District Court for Western District of Kentucky, challenging the manner of his impending execution. He claims that Kentucky's use of electrocution to carry out a death sentence constitutes cruel and unusual punishment. Doug Sapp, the Commissioner for the Kentucky Department of Corrections, moved to dismiss the action for lack of jurisdiction, arguing that the case must be interpreted as a successive federal habeas petition, and thus, the district court did not have jurisdiction to hear the case, absent a certificate of appealability from the Sixth Circuit. 28 U.S.C. § 2244. United States District Court Judge Thomas B. Russell denied Sapp's motion and granted a stay of execution. He did not intimate any opinion on the merits of McQueen's case, other than noting that "it is unnecessary to delve into the particulars regarding the strength of [McQueen's] claim." (Mem.Op. p. 9). Commissioner Sapp has filed before us what is styled as a petition for writ of mandamus to overturn Judge Russell's stay of execution (No. 97-5755).

McQueen has also filed a § 1983 action in the United States District Court for the Eastern District of Kentucky, challenging Kentucky Governor Paul Patton's alleged policy of not considering any clemency action for a death row inmate. United States District Judge Joseph Hood denied McQueen's motion for a temporary restraining order and preliminary injunction. McQueen appeals Judge Hood's ruling and moves in our court for a stay of execution (No. 97-5768). In addition, he had filed late today a "Supplemental Emergency Motion for Stay or Injunction Pending Appeal," making further arguments in support of a stay for reasons discussed at pages 11-12. In this opinion, we will refer to the parties opposing McQueen collectively as "the state" or "Kentucky."

For the reasons discussed below, we hold that Judge Russell had no jurisdiction to consider the challenge to the manner of execution because that challenge was, in reality, an unauthorized successive habeas petition. In addition, even if the suit could have been considered by Judge Russell, the stay was an abuse of discretion. We affirm Judge Hood's order denying McQueen's motion for a temporary restraining order and preliminary injunction, and we deny McQueen's motion for a stay of execution.

I

McQueen's case has made four complete round trips through the appellate system. His original set of direct appeals, the primary means for the policing of the criminal justice system in our nation, occurred from 1981 to 1984. His conviction was affirmed by the Kentucky Supreme Court, in McQueen v. Commonwealth, 669 S.W.2d 519 (Ky.1984), and the Supreme Court of the United States denied certiorari, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984).

His collateral attack in state court on his conviction occurred from 1984 to 1987. His RcR 11.42 petition was denied, and the denial was affirmed by the Kentucky Supreme Court, McQueen v. Commonwealth, 721 S.W.2d 694 (Ky.1986), and certiorari was denied, 481 U.S. 1059, 107 S.Ct. 2203, 95 L.Ed.2d 858 (1987).

He began federal habeas proceedings in 1987. He received permission in 1992 to pursue a second round of state collateral attacks, which were unsuccessful, culminating in a denial of certiorari by the Supreme Court, 507 U.S. 1020, 113 S.Ct. 1820, 123 L.Ed.2d 450 (1993). See McQueen v. Scroggy, 99 F.3d 1302, 1309 (6th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2422, 138 L.Ed.2d 185 (1997).

Ultimately, his federal habeas petition was denied in the United States District Court for the Eastern District of Kentucky, the denial was affirmed by our court, 99 F.3d 1302 (1996), and the Supreme Court denied certiorari, on June 2, 1997, --- U.S. ----, 117 S.Ct. 2422, 138 L.Ed.2d 185.

McQueen has also filed for rehearing in the Supreme Court, by mail on June 26, which has not been docketed or decided as of 10 a.m., June 27. The Supreme Court's mandate will not be returned to this court until the rehearing petition has been decided. However, as no stay of execution was pending in this case until Judge Russell's this week, the Supreme Court's proceedings are at this point not relevant.

Faced with the fact of his final impending execution, McQueen filed this action of May 19, 1997, though he did not seek a stay of execution until June 20, eleven days before the scheduled execution.

II

When Judge Russell granted the stay of execution, he simultaneously certified the case as suitable for direct appeal under 1292(b). The state, the next day, chose to file a document labeled "Application for Writ of Mandamus" wherein it requested that the stay be lifted, that the action be dismissed as beyond the court's jurisdiction, and that this court issue an order forbidding all courts in the Sixth Circuit to entertain any further actions concerning McQueen without our leave. In response to our request pursuant to Fed. R.App. P. 21(b)(1), McQueen filed a response to the state's petition.

The clear import of the state's filing was to secure the vacating of the court's stay, an end appropriately sought by a motion under Fed. R.App. P. 8 or by the appeal Judge Russell had authorized. Because mandamus should be used sparingly, and "it is ordinarily undesirable to place the trial court judge, even temporarily, in an adversarial posture with a litigant." (1996 Advisory Committee note), we choose to consider the motion as an appeal. See Yates v. Mobile County Personnel Board, 658 F.2d 298 (5th Cir.1981).

III

Challenges to methods of execution have become common in recent years, and have included all methods of execution. Like many of the other challenges, this case has been brought for the specific purpose of stopping the execution of a particular person. Although McQueen claims that he is not challenging the constitutionality of the death penalty itself but only "a condition of confinement," we believe that this challenge to the manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas corpus.

Judge Russell correctly noted that if McQueen's action, whatever it is labeled, is in fact properly characterized as a second habeas petition, the district court "would lack jurisdiction over the claim at this time pursuant to 28 U.S.C. § 2244." (Mem.Op. p. 2)

He also correctly noted that the Supreme Court, in the apparently similar case of Gomez v. District Court, 503 U.S. 653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), held that a challenge to the California method of execution was "an obvious attempt to avoid the application of McCleskey v. Zant, to bar this successive claim for relief." (Mem.Op.p.2), (citing Gomez, 503 U.S. at 653, 112 S.Ct. 1652 (citation omitted)).

In this decision, we are guided by the Supreme Court's decision in Gomez, as interpreted by Lonchar v. Thomas, 517 U.S. 314, 116 S.Ct. 1293, 134 L.Ed.2d 440 (1996). In Gomez, the Supreme Court found that Robert Alton Harris's § 1983 claim that execution by lethal injection was cruel and unusual punishment was nothing more than "an obvious attempt to avoid the application of McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), to bar th[e] successive claim for relief." Gomez, 503 U.S. at 653, 112 S.Ct. 1652. Thus, Gomez held that a death row inmate cannot escape the rules regarding second or successive habeas petitions by simply filing a § 1983. The court went on to say, as an aside, that "even if we were to assume" that he could avoid the application of the restrictions on successive habeas petitions, "we would not consider it on the merits." The court then noted that no matter what the challenge to the method of execution is called, it is an appeal to equity. It held that because of "the state's strong interest in proceeding with its judgment and [defendant's] obvious attempt at manipulation" and the fact that the "claim could have been brought more than a decade ago [t]here is no good reason for this abusive delay." Id. at 654, 112 S.Ct. at 1653.

Thus, the Supreme Court ruled on two independent grounds, and neither undermines the other. More recently, the Eleventh Circuit has considered exactly the issue here, in Felker v. Turpin, 101 F.3d 95 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 450, 136 L.Ed.2d 345 (1996), and in Hill v. Hopper, 112 F.3d 1088 (11th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 1571, 137 L.Ed.2d 714 (1997), as recently as this April. In Felker, the Eleventh Circuit addressed the exact type of challenge before this court--whether the use of electrocution to carry out a death sentence is cruel and unusual punishment. Relying on the Supreme Court's decision in Gomez, the court held that a prisoner may not circumvent the rules regarding...