Woods v. Dunn, CIVIL ACT. NO. 2:20-cv-58-ECM (WO)

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
PartiesNATHANIEL WOODS, Plaintiff, v. JEFFERSON S. DUNN, et al., Defendants.
Docket NumberCIVIL ACT. NO. 2:20-cv-58-ECM (WO)
Decision Date02 March 2020

JEFFERSON S. DUNN, et al., Defendants.

CIVIL ACT. NO. 2:20-cv-58-ECM (WO)


March 2, 2020



Plaintiff Nathaniel Woods (hereinafter "Woods") is an Alabama death row inmate in the custody of the Alabama Department of Corrections ("ADOC"). Woods is scheduled for execution on March 5, 2020. On January 23, 2020, Woods filed a complaint pursuant to 42 U.S.C. § 1983, against Defendants Jefferson Dunn, Commissioner, ADOC; Cynthia Stewart, Warden, Holman Correctional Facility; and Steve Marshall, Attorney General, State of Alabama (hereinafter collectively "the State"), individually1 and in their official capacities, alleging violations of his federal constitutional rights under the Eighth and Fourteenth Amendments and violations of Alabama state law. Woods seeks declaratory and injunctive relief. (Doc. 1).

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This matter is before the Court on the State's motion to dismiss and, in the alternative, motion for summary judgment (doc. 19),2 Woods' cross-motion for summary judgment3 (doc. 22), and Woods' motion for a stay of execution (doc. 29). Being fully briefed, these motions were heard at oral argument on February 26, 2020, and are ripe for adjudication.


A. Woods' Capital Litigation History

In 2004, a Jefferson County, Alabama grand jury indicted Woods on four counts of capital murder for intentionally causing the deaths of three Birmingham police officers, Carlos Owen, Harley A. Chisolm, III, and Charles R. Bennett, in violation of Ala. Code § 13A-5-40(a)(5), while they were on duty as police officers at "the green apartments," in an area of town known for drug problems.4 After a trial in October 2005, a jury found Woods guilty of the four charges. By a vote of 10 to 2, the jury recommended that Woods be sentenced to death. Following a sentencing hearing in December 2005, the trial court accepted the jury's recommendation and sentenced Woods to death. See Woods v. State, 13 So. 3d 1, 4-5 (Ala. Crim. App. 2007).

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In 2007, the Alabama Court of Criminal Appeals ("ACCA") affirmed Woods' convictions and sentence after remand for an amended sentencing order. Woods, 13 So. 3d at 43 (opinion on return to remand). After Woods did not move for rehearing or file a petition for a writ of certiorari to the Alabama Supreme Court, the ACCA issued a certificate of judgment on January 9, 2008. Then, on May 9, 2008, more than five months after the ACCA affirmed his convictions, Woods moved the ACCA to set aside the certificate of judgment and allow him to file an application for rehearing. In October 2008, the ACCA denied this motion. See Woods v. State, 221 So. 3d 1125, 1130 (Ala. Crim. App. 2016).

Woods then sought relief from the Alabama Supreme Court. In August 2009, the Alabama Supreme Court denied Woods' motion for an out-of-time appeal to that court. See id. On February 22, 2010, the U.S. Supreme Court denied certiorari. Woods v. Alabama, 559 U.S. 942 (2010) (mem.).

In December 2008, Woods also filed a petition in the trial court for collateral relief pursuant to Rule 32 of the Alabama Rules of Criminal Procedure. Following the State's response in opposition thereto, on December 1, 2010, the court summarily dismissed Woods' Rule 32 petition. The ACCA affirmed, and the Alabama Supreme Court denied certiorari. Woods v. State, 221 So. 3d 1125 (Ala. Crim. App. 2016). Woods did not pursue an appeal to the U.S. Supreme Court.

Next, Woods filed a federal habeas corpus petition, pursuant to 28 U.S.C. § 2254, in the Northern District of Alabama. Woods v. Stewart, 2018 WL 3455686 (N.D. Ala. 2018). After Woods filed two amended habeas petitions and the State responded thereto,

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the district court summarily dismissed the petition and denied Woods a certificate of appealability ("COA"). Id.

Thereafter, Woods unsuccessfully sought a COA from the Eleventh Circuit Court of Appeals. Woods v. Warden Holman CF, 2019 WL 5866719 (11th Cir. 2019). The U.S. Supreme Court denied certiorari on October 7, 2019, Woods v. Stewart, 140 S. Ct. 67 (2019) (mem.), concluding Woods' appeals.

B. Backdrop of the Present Action

1. Nitrogen hypoxia authorized as second alternative method of execution

Lethal injection is Alabama's default method of execution. ALA. CODE § 15-18-82.1(a). In March 2018, the Alabama Legislature amended Alabama's Code5 to add nitrogen hypoxia as another alternative execution method, in addition to electrocution.6 Pursuant to Ala. Code § 15-18-82(b), Alabama affords a death row inmate one opportunity to elect one of the alternative execution methods.

This amendment to the code became effective on June 1, 2018. The timing and procedure an inmate must follow to elect nitrogen hypoxia are outlined in Ala. Code § 15-18-82(b)(2), which states:

The election for death by nitrogen hypoxia is waived unless it is personally made by the person in writing and delivered to the warden of the correctional facility within 30 days after the certificate of judgment pursuant to a decision by the Alabama Supreme Court affirming the sentence of death. If a certificate of judgment is issued before June 1, 2018, the election must be

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made and delivered to the warden within 30 days of that date. If a warrant of execution is pending on June 1, 2018, or if a warrant is issued within 30 days of that date, the person who is the subject of the warrant shall waive election of nitrogen hypoxia as the method of execution unless a written election signed by the person is submitted to the warden of the correctional facility not later than 48 hours after June 1, 2018, or after the warrant is issued, whichever is later.


As this amendment pertains to Woods, the certificate of judgment on his convictions issued on January 9, 2008. Thus, from June 1 to June 30, 2018, Woods, like all other death-sentenced inmates whose certificates of judgment issued prior to June 1, 2018, had the opportunity to elect an execution by nitrogen hypoxia. Woods did not make that election during this time.

2. The midazolam litigation that was dismissed in 2018

In April 2012, death row inmate Carey Dale Grayson filed an action under 42 U.S.C. § 1983 challenging the constitutionality of Alabama's lethal injection protocol, alleging that it violated his Eighth and Fourteenth Amendment rights. See Grayson v. Dunn, 2:12-cv-316-WKW, Doc. 1 (M.D. Ala. 2012). Over time, several other death row inmates filed nearly identical challenges to Alabama's lethal injection protocol. Ultimately, on the parties' joint motion to consolidate, due to the common questions of law and fact, in April 2016, these cases were consolidated to promote judicial economy, eliminate duplication of discovery, and avoid unnecessary costs. Id. Additionally, the litigation was recaptioned as In re: Alabama Lethal Injection Protocol Litigation, 2:12-cv-316-WKW (M.D. Ala. 2012).

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In that litigation, the plaintiffs proposed nitrogen hypoxia as an alternative execution method. The State's addition of nitrogen hypoxia as an alternative method of execution essentially mooted the remaining plaintiffs' claims in In re: Alabama Lethal Injection Protocol Litigation. Indeed, after June 1, 2018, they all elected nitrogen hypoxia, and the In re: Alabama Lethal Injection Protocol Litigation was dismissed without prejudice on the parties' joint motion to dismiss. 2:12-cv-316-WKW, Docs. 429-30.

3. Distribution of the election form during election period

It is undisputed that on or about June 26, 2018, the ADOC distributed a nitrogen hypoxia election form to all death-sentenced inmates. (Doc. 1 ¶ 17; Doc. 19 at 17-18; Doc. 22-3 ¶ 10). It is undisputed that this form was not drafted by the State, but was drafted by an attorney in the Federal Defender's Office. (Doc. 22-3 ¶ 4). This form states:

ELECTION TO BE EXECUTED BY NITROGEN HYPOXIA 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



It is undisputed that Woods received the election form, but did not complete it during the election period. However, on January 31, 2020, the day after the Alabama

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Supreme Court set his execution date, Woods signed the form.7

During the thirty-day election period from June 1 to June 30, 2018, 48 inmates elected nitrogen hypoxia. See Dunn v. Price, 139 S. Ct. 1312 (2019). There are 175 death row inmates in Alabama. (Doc. 19 at 4).8 Thus, fewer than one-third of those inmates elected nitrogen hypoxia. A majority of the death row inmates remain subject to execution by lethal injection once they have exhausted their appeals.

4. No execution protocol developed for nitrogen hypoxia

When the Alabama Code was amended to add nitrogen hypoxia as a second alternative execution method, and throughout the election period, the ADOC had not yet developed a protocol for performing nitrogen hypoxia executions.9 The State advises that it is "diligently working to formulate a safe hypoxia protocol." (Doc. 19 at 7). Until the ADOC has such protocol, the State of Alabama is unable to execute an inmate by nitrogen hypoxia.

5. Executions performed after the nitrogen hypoxia election period closed

While the State is currently unable to perform nitrogen hypoxia executions, it has proceeded with the executions of death row inmates who have completed their appeals and

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who did not elect nitrogen hypoxia. Since passage of the law allowing for nitrogen hypoxia as an alternative method of execution, three inmates have been executed by lethal injection:...

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