Smith v. Dunn
| Decision Date | 09 February 2021 |
| Docket Number | CIVIL CASE NO. 2:19-cv-927-ECM (WO) |
| Parties | WILLIE B. SMITH, III, Plaintiff, v. JEFFERSON DUNN, et al., Defendants. |
| Court | U.S. District Court — Middle District of Alabama |
Plaintiff Willie B. Smith, III ("Smith" or "the Plaintiff") is an Alabama death row inmate in the custody of the Alabama Department of Corrections ("ADOC"). Smith is scheduled to be executed by lethal injection on February 11, 2021. On February 4, 2021, the Plaintiff filed an Emergency Motion for Stay of Execution, (doc. 42), asserting that his execution should be stayed until this civil action is resolved. (Id. at 1-2).
In this case, Smith alleges that Alabama violated his statutory rights under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., (hereinafter "ADA").1 Smith sues Jefferson Dunn, the Commissioner of the Alabama Department of Corrections, and Terry Raybon, the Warden of Holman Correctional Facility, (hereinafter "theDefendants"), in their official capacities. (Doc. 36 at 2-3, paras. 7, 9-10). The operative complaint (hereinafter "Complaint") was filed on January 29, 2021. (Doc. 36).
Now pending before the Court is the Plaintiff's Emergency Motion for a Stay of Execution. (Doc. 42). As directed by the Court, on February 5, 2021, the Plaintiff filed evidence in support of the motion, (doc. 44), and, on February 6, 2021, the Defendants filed a brief and evidence in opposition to the motion, (doc. 45).
The Court heard oral argument on the motion on February 8, 2021. After oral argument, the Plaintiff and the Defendants filed additional evidence in support of and in opposition to the emergency motion to stay. (Docs. 47 and 48).
The motion to stay is fully briefed and ripe for resolution. For the following reasons, the Court concludes that the Plaintiff's Emergency Motion for a Stay of Execution is due to be DENIED.
In 1992, after a jury trial, Smith was convicted of "capital murder for the intentional killing of Sharma Ruth Johnson during the course of a robbery and during the course of akidnapping." Smith v. State, 838 So. 2d 412, 421 (Ala. Crim. App. 2002). The facts of Smith's underlying conviction were summarized by the district court 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) (internal citations omitted), aff'd, sub nom. Smith v. Comm'r, Ala. Dep't of Corrs., 924 F.3d 1330 (11th Cir. 2019).
The jury subsequently recommended a death sentence by a 10-2 vote; the trial court imposed a sentence of death. (Doc. 48-2).
In 1997, Smith appealed his conviction and sentence, which were affirmed by the Alabama Court of Criminal Appeals. Smith v. State, 698 So. 2d 1166 (Ala. Crim. App.1997). Smith's petition for a writ of certiorari to the Alabama Supreme Court was denied on June 28, 2002. See Smith v. State, 838 So. 2d 413 (Ala. Crim. App. 2002). On December 16, 2002, the U.S. Supreme Court denied 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 (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 U.S. 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 dismissed the petition. Id. On May 22, 2019, the Eleventh Circuit Court of Appeals affirmed the denial of Smith's habeas petition. Smith, 924 F.3d at 1347. The United States Supreme Court denied Smith's petition for certiorari on July 2, 2020, concluding Smith's appeals. Smith v. Dunn, 141 S. Ct. 188 (2020) (mem.).
Upon completion of Smith's post-conviction proceedings, the Attorney General moved the Alabama Supreme Court to set Smith's execution date. On December 1, 2020, the Alabama Supreme Court set the Plaintiff's execution date for February 11, 2021. (Doc. 17).
Smith filed this action on November 25, 2019, alleging that the lethal injection method of execution violates his Eighth Amendment rights, and that the Defendants violated his rights under the ADA. (Doc. 1). The Defendants moved to dismiss thecomplaint for failure to state a claim upon which relief may be granted. (Doc. 10). The motion was fully briefed, and orally argued to the Court. (Docs. 14, 15, 19, 20, and 27). The Court granted the Defendants' motion to dismiss, dismissed the complaint without prejudice, and entered final judgment on December 14, 2020. (Docs. 25 and 26). Thereafter, the Plaintiff filed a motion to vacate the judgment, (doc. 28), and a motion for leave to file an amended complaint, (doc. 32). On January 29, 2021, the Court granted the motions to vacate and to amend pursuant to Fed. R. Civ. P. 59(e) and 15 respectively. (Doc. 35). The Plaintiff filed the operative complaint on the same day. (Doc. 36). On February 1, 2021, the Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 37). On February 4, 2021, the Plaintiff filed a response to the motion to dismiss, (doc. 41), and the emergency motion for a stay of execution, (doc. 42). The Court heard oral argument on the motions on February 8, 2021. Thereafter, the Court denied the motion to dismiss as to Smith's ADA claim but granted the motion as to his Eighth Amendment method of execution claim. (Doc. 46).
Smith is currently prosecuting multiple cases.
Smith filed a § 1983 action on December 14, 2020, alleging that the State Defendants' decision to bar his spiritual advisor from the execution chamber violates his First Amendment right to free exercise of his religious beliefs. See Smith v. Dunn, 2021 WL 358374 (M.D. Ala. Feb. 2, 2021). He also sought an emergency preliminary injunctionto permit his spiritual advisor to be physically present with him inside the execution chamber. Id. at 1.
On February 2, 2020, the district court denied Smith's motion for preliminary injunction, and Smith appealed. Smith's appeal is pending. See Smith v. Comm'r, Ala. Dep't of Corrs., 21-10348 (11th Cir. Feb. 3, 2021).
On February 2, 2020, Smith brought a lawsuit challenging the constitutionality of COVID-19 related changes to the execution protocol. He also filed an emergency motion to stay his execution, which was denied on February 9, 2021.
On February 4, 2021, Smith filed a complaint in the Circuit Court of Montgomery County, Alabama challenging, under state law, COVID-19 related changes to the execution protocol. On February 5, 2021, Smith filed an amended complaint in which he sought "declaratory and injunctive relief barring his execution." That case was dismissed on February 9, 2021.
Smith is scheduled to be executed by lethal injection, the default method of execution in Alabama. ALA. CODE § 15-18-82.1(a). In March 2018, the Governor signed into law Senate Bill 272, which added nitrogen hypoxia as an alternative method of execution in Alabama. ALA. CODE § 15-18-82.1(b)(2). The statute permits a death row inmate one opportunity to elect execution by nitrogen hypoxia. Id. Otherwise, the inmatewaives the right to elect the alternative method and will be executed by lethal injection. Id. The law became effective on June 1, 2018. Id. Pursuant to the statute, Smith had 30 days, from June 1, 2018 until June 30, 2018, to elect nitrogen hypoxia as his method of execution. Id.
It is undisputed that on June 26, 2018, attorneys from the Federal Defenders met with their clients on death row at Holman. They informed their clients of the change in the law, answered their questions regarding nitrogen hypoxia, and provided them with an Election Form that they had drafted for the purpose of electing nitrogen hypoxia. Smith was not represented by the Federal Defenders at that time.
No earlier than June 26, 2018, the Warden at Holman directed correctional officers to distribute the Election Form with an envelope to all prisoners on death row. Prisoners could sign and date the form and deliver it in the envelope to the Warden if they elected execution by nitrogen hypoxia. Smith did not use the form. Nor did he elect execution by nitrogen hypoxia within the prescribed period in 2018 by any other means. (Id....
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