Williams v. Hobbs

• Decision Date: 07 October 2011
• Docket Number: Nos. 10–1573,10–2899.,s. 10–1573
• Citation: 658 F.3d 842,80 Fed.R.Serv.3d 1195
• Parties: Marcel Wayne WILLIAMS, Petitioner/Appellant,v.Ray HOBBS, Interim Director, Arkansas Department of Correction, in his official capacity, Respondent/Appellee.Jack Harold Jones, Jr., Plaintiff/Appellant,Don William Davis; Alvin Bernal Jackson; Stacey Eugene Johnson; Kenneth Dewayne Williams; Jason Farrell McGehee; Bruce Earl Ward, Intervenor Plaintiffs/Appellants,v.Ray Hobbs, in his official capacity as Acting Director of the Arkansas Department of Correction, Defendant/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

658 F.3d 842

80 Fed.R.Serv.3d 1195

Marcel Wayne WILLIAMS, Petitioner/Appellant,

v.Ray HOBBS, Interim Director, Arkansas Department of Correction, in his official capacity, Respondent/Appellee.Jack Harold Jones, Jr., Plaintiff/Appellant,Don William Davis; Alvin Bernal Jackson; Stacey Eugene Johnson; Kenneth Dewayne Williams; Jason Farrell McGehee; Bruce Earl Ward, Intervenor Plaintiffs/Appellants,

v.Ray Hobbs, in his official capacity as Acting Director of the Arkansas Department of Correction, Defendant/Appellee.

Nos. 10–1573

10–2899.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 20, 2011.Filed: Oct. 7, 2011.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as UnconstitutionalWest's A.C.A. § 5–4–617(a)(2)(D) Jennifer L. Molayem, AFPD, argued, Little Rock, AR, Josh Lee, Julie Pitt, Jeffrey M. Rosenzweig, Dale E. Adams, Deborah Ruth Sallings, AR Public Defender, Little Rock, AR, Joseph W. Luby, Jennifer Merrigan, Kansas City, MO, on the brief, for appellants.Carmine Joseph Cordi, Jr., AAG, argued, Little Rock, AR, for appellee.Before LOKEN, BEAM, and MURPHY, Circuit Judges.MURPHY, Circuit Judge.

Several Arkansas prisoners on death row challenged the state's Method of Execution Act (the Act) under 42 U.S.C. § 1983 arguing that it violates the ex post facto clause and their due process right to access the courts. The district court ¹ dismissed the prisoners' claims, finding that their arguments were merely speculative, that they had access to Arkansas's current execution protocol, and that they could submit a FOIA request to obtain information on future protocols. In this consolidated appeal the prisoners argue that the district court erred in dismissing their ex post facto clause and due process claims. Appellant Williams also appeals individually contending that the district court erred in denying his habeas petition as second or successive and by refusing to exercise supplemental jurisdiction over a state law claim. Appellant Jones and the prisoners that intervened in his suit appeal the denial of their motion to vacate the judgment. We affirm.

I.

Arkansas statutorily adopted lethal injection as its method of execution in 1983. Ark.Code Ann. § 5–4–617. As originally drafted, the statute required an inmate to be anesthetized before the injection of lethal chemicals. Ark.Code Ann. § 5–4–617(a)(1). It also required the Director of the Arkansas Department of Correction (Director) to “determine the substances to be uniformly administered and the procedures to be used in any execution.” Ark.Code Ann. § 5–4–617(a)(2). Additionally, the lethal injection statute was interpreted as requiring “a minimum of thirty-days notice prior to any execution of any changes in the protocol.” Jones v. Hobbs, 604 F.3d 580, 582 (8th Cir.2010) (Melloy, J., dissenting); see Ark.Code Ann. § 25–15–204(a)(1).

In May 2008 the Director adopted a lethal injection protocol known as AD 08–28, which immediately faced legal challenges. First, an Arkansas prisoner on death row challenged the adoption of this protocol for failure to comply with the notice and comment provisions of Arkansas's Administrative Procedures Act (APA). See Ark. Dep't of Corr. v. Williams, 2009 Ark. 523, at 2, –––S.W.3d ––––, ––––, 2009 WL 4545103, at *2. Second, several inmates challenged AD 08–28 in federal court arguing that it violated the Eighth Amendment. Nooner v. Norris, 2008 WL 3211290 (E.D.Ark. Aug. 5, 2008). As part of the federal suit, the government made the protocol available to the public in a court filing. The federal district court found that it did not violate the Eighth Amendment. Id. at *15. We affirmed, holding that AD 08–28 was substantially similar to other execution protocols that had been upheld by our circuit and the Supreme Court. Nooner v. Norris, 594 F.3d 592, 608 (8th Cir.2010).

While the challenges to AD 08–28 were moving through the state and federal courts, the Director lobbied the Arkansas General Assembly to amend Ark.Code Ann. § 5–4–617. In response, the Assembly passed the Act in April 2009 to “clarify” the procedures for capital punishment by lethal injection. 2009 Ark. Acts 1296. Attributes of the Act include:

(1) It gives the Director “discretion” to determine the kind and amount of chemicals that will be used in an execution, including an ultra short acting barbiturate, a chemical paralytic agent, potassium chloride, or “[a]ny other chemical.” Ark.Code Ann. § 5–4–617(a)(1)–(2).

(2) It no longer includes any statutory requirement that the Director use anesthesia before giving the lethal cocktail to the prisoner.

(3) It gives the Director “discretion” to determine “any and all procedures and policies to be applied in connection with carrying out the sentence of death” including logistics, security, injection preparations, injection implementation, and arrangements for disposing of the body. Ark.Code Ann. § 5–4–617(a)(4)(A)–(E).

(4) It does not designate a time by which the Director must determine the lethal injection protocol.

(5) It specifically exempts the policies and procedures for carrying out the death sentence from Arkansas's APA. Ark.Code Ann. § 5–4–617(a)(5)(A). It also does not subject the policies and procedures for carrying out the sentence of death to the FOIA, “except for the choice of chemical or chemicals that may be injected, including the quantity, method, and order of the administration of the chemical or chemicals.” Ark.Code Ann. § 5–4–617(a)(5)(B).

The present appeal is a consolidation of two federal cases that Arkansas prisoners (collectively prisoners) initiated to challenge the Act. Marcel Williams, an Arkansas prisoner under a sentence of death, is the sole named plaintiff in one of the cases. After Williams was convicted of capital murder and had exhausted his claims on direct appeal, see Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999), he filed a petition for writ of habeas corpus in the United States District Court for the Eastern District of Arkansas, alleging, among other claims, ineffective assistance of counsel during his death penalty phase. The district court granted his petition. Williams v. Norris, 2007 WL 1100417 (E.D.Ark. Apr. 11, 2007). We reversed after finding that the evidence presented by Williams was insufficient for the writ. Williams v. Norris, 576 F.3d 850, 858–63 (8th Cir.2009).

Williams then filed the present action seeking a writ of habeas corpus, declaratory and injunctive relief under 42 U.S.C. § 1983, and asking the court to exercise its supplemental jurisdiction to declare the Act unconstitutional under Article IV of the Arkansas Constitution. The district court found that Williams had not obtained proper authorization from the Eighth Circuit to file a second or successive habeas petition. Williams v. Hobbs, 2010 WL 749563, at *1 (E.D.Ark. Mar. 2, 2010). The district court also dismissed Williams's § 1983 claim for failure to state a claim upon which relief could be granted because he had access to Arkansas's current lethal injection protocol, he could obtain any future lethal injection protocols by making a FOIA request, and his assertion that the Director would unilaterally change the protocol was speculative. Id. at *3–4. The district court then declined to exercise supplemental jurisdiction over the remaining state law claims because it had dismissed all of his federal claims. Id. at *4.

After Williams's case was dismissed, Jack Harold Jones, another prisoner sentenced to death in Arkansas, challenged the Act on the same grounds that Williams had. Several similarly situated prisoners intervened in Jones's suit. The district court dismissed their case, basing its decision on the same grounds on which it had dismissed Williams's suit. Jones v. Hobbs, 2010 WL 1417976, at *1 (E.D.Ark. Apr. 5, 2010). The district court granted a stay of execution to the two inmates who had execution dates set so that they could appeal the ruling. Jones, 2010 WL 1417976, at *4. We vacated the stays, holding that the two inmates had failed to demonstrate a “significant possibility of success on the merits” because it was “purely speculative” that Arkansas would adopt a different, unconstitutional protocol. Jones v. Hobbs, 604 F.3d 580, 581–82 (8th Cir.2010) (per curiam).

Jones and the prisoners who intervened in his suit then moved to vacate pursuant to Federal Rule of Civil Procedure 59(e) on the ground that they had found newly discovered evidence showing that the Director believed he had “flexibility” under the Act and that there is a worldwide shortage of anesthesia. The district court denied this motion. Jones v. Hobbs, 745 F.Supp.2d 886, 894 (E.D.Ark.2010).

The prisoners appeal the dismissal of their § 1983 claims for failure to state a claim upon which relief can be granted. Williams individually appeals the denial of his habeas petition and the district court's decision not to exercise supplemental jurisdiction over his state law claims. Appellants in Jones's case appeal the denial of their Rule 59(e) motion to vacate the judgment.

During the pendency of the federal litigation, the prisoners have continued to challenge the Act in state court. A state circuit court recently granted partial relief to the prisoners, ruling from the bench that the portion of the Act granting the Director the ability to use “[a]ny other chemical or chemicals, including but not limited to” is unconstitutional. Jones v. Hobbs, No.2010–CV–1118 (Pulaski Cnty. Aug. 15, 2011). The court struck this language, leaving the part of the Act governing choice of chemicals as follows:

(a)(1) The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.

(2) The chemical or chemicals injected may include one (1) or more of the following substances:

(A) One (1) or more ultra-short-acting barbiturates;

(B) One (1) or more chemical paralytic agents;

(C)...