Smith v. Dunn

Decision Date24 September 2021
Docket Number2:19-CV-927-ECM [WO]
PartiesWILLIE B. SMITH, III, Plaintiff, v. JEFFERSON S. DUNN, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama



Plaintiff Willie B. Smith, III (hereinafter “Smith” or Plaintiff) is a death-row inmate in the custody of the Alabama Department of Corrections (“ADOC”). The State of Alabama has set his execution date for October 21, 2021. (Doc. 132). On November 25, 2019, the Plaintiff filed a complaint pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”), against the Commissioner of the ADOC Jefferson Dunn, and the Warden of Holman Correctional Facility, Terry Raybon, (hereinafter Defendants), in their official capacities. After an initial dismissal, the Plaintiff filed an amended complaint on January 29, 2021, in which he seeks declaratory and injunctive relief. (Doc. 36).

Before the Court is the Plaintiff's Motion for Preliminary Injunction. (Doc. 74). He requests the Court enjoin the State of Alabama, by and through its agents, Defendants Dunn and Raybon, from executing him by any method other than nitrogen hypoxia before the final adjudication of his ADA claim. (Id. at 1-2). During the pendency of this motion the Court alerted the parties to its jurisdictional doubts. (See docs. 118, 119). The parties briefed the jurisdictional issue (see id.) and presented evidence and argument in support of jurisdiction at an evidentiary hearing on August 27, 2021. Because the Court now concludes that Smith lacks standing to bring this challenge, the Court lacks jurisdiction to proceed.[1]


In summary, Smith's extensive litigation history is as follows.

A. Smith's Litigation History

In 1992, after a jury trial, Smith was convicted of “capital murder for the intentional killing of Sharma Ruth Johnson during a robbery and kidnapping. Smith v. State, 838 So.2d 413, 421 (Ala.Crim.App.2002). The facts of Smith's underlying conviction were summarized by the United States District Court for the Northern District of Alabama in post-conviction proceedings:

The evidence at trial showed that Smith and his girlfriend, Angelica Willis, approached Johnson in her car near an automated teller machine. Following Smith's instructions, Willis asked Johnson for directions to a restaurant. Then Smith, armed with a shotgun, walked up to Johnson's car and forced Johnson into the trunk. After driving to another location, Smith and Willis returned to the automated teller machine. There, they located Johnson's dropped bank debit card and directed Johnson, still in the car's trunk, to call out the card's access code. At Smith's direction, Willis withdrew $80 from Johnson's bank account. A bank video camera captured images of Smith while Willis withdrew money from the machine. After driving around the Birmingham area and picking up Smith's brother from a shopping mall, Smith drove Johnson's car to a cemetery. Smith told Willis that he would have to kill Johnson because she would report the crime to law enforcement. Willis overheard Johnson pleading for her life and promising not to tell the authorities about the kidnapping. Willis then heard a gunshot. Smith, his brother, and Willis abandoned the vehicle at North Roebuck School. Smith later returned to the car and set it on fire to destroy any fingerprints left on it.

Smith v. Dunn, 2017 WL 1150618, at *1-2 (N.D. Ala. Mar. 28, 2017) (citations omitted), aff'd sub nom. Smith v. Comm'r, Ala. Dep't of Corrs., 924 F.3d 1330 (11th Cir. 2019). Upon a 10-2 jury vote in favor, the trial court imposed a sentence of death. (Doc. 48-2 at 2, 20).

Smith appealed his conviction and sentence, which were affirmed by the Alabama Court of Criminal Appeals. Smith v. State, 838 So.2d 413 (Ala.Crim.App.2002). Both the Alabama Supreme Court and the United States Supreme Court denied certiorari. See Id. (noting the Alabama Supreme Court's denial of certiorari); Smith v. Alabama, 537 U.S. 1090 (2002) (mem.).

On August 1, 2003, Smith filed a Rule 32 petition, the denial of which was affirmed on appeal. Smith v. State, 112 So.3d 1108, 1113-14, 1152 (Ala.Crim.App.2012). The Alabama Supreme Court denied certiorari. Ex parte Smith, 112 So.3d 1152 (Ala. 2012). Smith did not pursue an appeal to the United States Supreme Court.

In March 2013, Smith filed a federal habeas corpus petition, pursuant to 28 U.S.C. § 2254, in the Northern District of Alabama. Smith, 2017 WL 1150618. On July 21, 2017, the district court denied the petition. Id. at *73. On May 22, 2019, the United States Court of Appeals for the Eleventh Circuit affirmed the denial. Smith, 924 F.3d at 1347. The United States Supreme Court denied certiorari on July 2, 2020, concluding Smith's direct and collateral appeals. Smith v. Dunn, 141 S.Ct. 188 (2020) (mem.).

However, as his collateral challenge proceeded in federal court, Smith filed additional suits against Alabama state officials.[3] He filed this action on November 25, 2019, alleging that execution by lethal injection violates his Eighth Amendment right to be free from cruel and unusual punishment, and alleging separately that the Defendants violated his rights under the ADA. (Doc. 1). After a dismissal for failure to state a claim, (doc. 25), Smith filed the operative complaint on January 29, 2021, (doc. 36). In response to another Rule 12(b)(6) motion, (doc. 37), the Court dismissed Smith's Eighth Amendment claim but allowed his ADA claim to proceed, (doc. 46).

While this case proceeded, but upon completion of Smith's post-conviction appeals, the Alabama Attorney General moved the Alabama Supreme Court to set Smith's execution date. (Doc. 17). On December 1, 2020, the Alabama Supreme Court set his execution date for February 11, 2021. (Id.). On February 4, 2021, Smith moved this Court to stay that execution. (Doc. 42). On February 9, 2021, the Court declined to do so. (Doc. 49).

Smith appealed to the Eleventh Circuit which, on February 10, 2021, granted a stay until February 16, 2021. Smith v. Comm'r, Ala. Dep't of Corrs., No. 21-10413-P (11th Cir. Feb. 10, 2021). Defendants asked the Supreme Court to vacate the Eleventh Circuit's stay, a request it granted on February 11, 2021. Dunn v. Smith, 141 S.Ct. 1290 (2021) (mem.). However, since the Supreme Court declined to vacate a stay in a separate § 1983 action, Dunn v. Smith, 141 S.Ct. 725 (2021) (mem.) (denying an application for vacatur of a stay of execution in Smith's RLUIPA case), Smith's death warrant expired at midnight on February 12, 2021, and he was not executed. (See Doc. 74 at 6).

B. Background[4]

Smith's instant suit orbits Alabama's decision to implement nitrogen hypoxia as a method of execution. Lethal injection is Alabama's default execution method. Ala. Code § 15-18-82.1(a). However, in March 2018, Alabama added nitrogen hypoxia as an alternative, effective June 1, 2018. See 2018 Ala. Laws Act 2018-353; Ala. Code § 15-18-82.1(b). Alabama affords death-row inmates “one opportunity to elect that his or her death sentence be executed by . . . nitrogen hypoxia.” Ala. Code § 15-18-82.1(b). If an inmate's certificate of judgment from the Alabama Supreme Court affirming a sentence of death was “issued before June 1, 2018, the election must be made and delivered to the warden [of the correctional facility in which the inmate is held] within 30 days of that date.” Id. § 15-18-82.1(b)(2). Therefore, any inmate already on death row on June 1, 2018, had until the end of July 2, 2018, to opt into nitrogen hypoxia.[5] Any election of nitrogen hypoxia is “waived unless it is personally made by the person in writing” within that allotted opt-in window. Id. The statute does not specify the type or manner of writing required to elect, nor does it impose upon the ADOC any affirmative obligation to inform inmates of their opportunity to do so.

On June 26, 2018, attorneys from the Federal Defenders for the Middle District of Alabama (hereinafter “Federal Defenders”) met with their death-row clients at Holman Correctional Facility to discuss the opt-in. (Doc. 36, paras. 19-20).[6] The Federal Defenders informed their clients of the change in the law, answered questions about nitrogen hypoxia, and distributed a form they prepared to provide any client who wanted to opt into nitrogen hypoxia with a convenient way to do so. (Id.).[7] This “Election Form” states:


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. 44-9). After this meeting, several clients of the Federal Defenders opted into nitrogen hypoxia. (Doc. 44-7 at 3).

Sometime after the Federal Defenders met with their clients on June 26-but before the July 2 opt-in deadline for those already sentenced-Holman's Warden, Cynthia Stewart, on direction from someone above her at the ADOC, [8] had Correctional Captain Jeff Emberton (“Emberton”) distribute a copy of the Federal Defenders' Election Form and an envelope to all death-row inmates. (Doc. 139 at 25-26, 46-49). As he handed out the form, Emberton told inmates that the law had changed and that if they wanted to elect a nitrogen hypoxia execution, they needed to fill out the form and seal it in the envelope provided. (Id. at 48-49). He returned later to...

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