Thursday, 31 January 2008
SUPREME COURT OF THE UNITED STATES
RICHARD ALLEN, et al.,
EXECUTION SCHEDULED FOR JANUARY 31,2008 AT 6PM CST
APPLICATION FOR STAY OF EXECUTION
Vincent R. FitzPatrick, Jr.
Counsel of Record for James Callahan
Heather K. McDevitt
WHITE & CASE LLP
1 155 Avenue of the Americas
New York, New York 10036
(212) 819 - 8200
( JAN 3 0 2008
1I OSUFPFRICEEM OE FCMOUER CTL, EU.FSX. )
REOUEST FOR STAY OF EXECUTION
Petitioner, James Callahan, applies to this Court pursuant to 28 U.S.C. tj 2201(f) for a
stay of his execution, currently scheduled for January 31,2008 at 6:OO pm CST. The
Eleventh Circuit decision reversing the opinion and order of the United States District Court for
the Middle District of Alabama that granted Mr. Callahan's Stay Motion is in Re: Richard Allen
v. Callahan, No. 08-1 0 100 (1 1th Cir. Jan. 29,2008) (the "Eleventh Circuit Opinion"), and is
attached to the Application as Appendix A. The decision of the United States District Court for
the Middle District of Alabama in McNair v. Allen, et aL, Nos. 2:06-cv-695-WKW, 2:06-cv-
WKW, 2007 WL 4463489, Mem. Op. and Order (M.D.Ala. Dec. 14,2007) (opinion granting
motion for stay of execution) ("District Court Opinion"), and is attached to the Application as
Appendix B. In support of his application, Mr. Callahan states as follows.
Mr. Callahan filed this Eighth Amendment challenge to the constitutionality of lethal
injection in Alabama over fifteen months ago. His execution date was set only after his case was
days away from being tried, but had to be continued solely because the State announced, on the
eve of trial, that it was revising its execution procedures. He promptly moved for a stay over 10
weeks ago, which was granted by the District Court on December 14,2007. That stay has been
in place since the middle of December. The State waited until December 28,2007 to file a
notice of appeal and until January 4,2008 to file its main brief to the Eleventh Circuit. Mr.
Callahan filed his opposing brief on January 18,2008. At approximately 6: 18 prn yesterday, just
48 hours before the execution date that had been set (and stayed), a divided panel of the Eleventh
Circuit Court of Appeals (Judge Wilson, dissenting) ruled that Mr. Callahan's claim is barred by
the "applicable" statute of limitations -- a claim that neither was before that Court on the State's
appeal of the District Court Opinion granting the stay (indeed, the State did not even raise the
statute of limitations in its arguments to the District Court opposing the stay), nor was pursued as
an interlocutory appeal by the State when the District Court denied summary judgment on statute
of limitations grounds on November 16,2007. Yesterday's Eleventh Circuit majority Opinion
presents a novel theory, far from settled, that effectively will be shielded from review should the
execution proceed tomorrow. The Opinion did not otherwise deal with the well-reasoned
decision by Judge Watkins in the District Court and, putting aside the statute of limitation issue,
left intact his findings that Mr. Callahan met all requirement for a stay, including a showing of a
substantial likelihood of success on the merits of his lethal injection challenge.
Given this backdrop, Mr. Callahan respectfully seeks a stay of execution from this Court
in order to enable him to timely file a petition of writ of certiorari from the Opinion vacating the
stay. Given the exigencies created by the timing and circumstances of the decision, Mr. Callahan
also attaches to this Application his Memorandum of Law in Opposition to Defendants' Motion
for Sunmary Judgment (Exhibit C) and the District Court's November 16,2007 Memorandum
Opinion and Order denying summary judgment, inter alia, on statute of limitations grounds
(Exhibit D), for further amplification of the statute of limitations arguments.
Mr. Callahan seeks a stay of execution from this Court on either of two alternative
grounds. First, pending the filing, consideration, and disposition of a petition for a writ of
certiorari before judgment to review the Eleventh Circuit Opinion. See 28 U.S.C. 1257(a).
Second, to preserve this Court's jurisdiction to review the petition for a writ of certiorari under
the ordinary time frame, rather than in a matter of hours, a situation created by the delay of the
State (in taking a notice of appeal and briefing) and the Eleventh Circuit (in ruling) on the appeal
of the District Court's stay. Again, it bears emphasis that Mr. Callahan filed his motion for stay
over two months ago, and filed this lethal injection suit overjifteen months ago, long before an
execution date was sought or set. For these reasons and because, as the District Court found, the
rest of the traditional factors for granting a stay of execution favor Mr. Callahan, the Court
should stay Callahan's execution pending the filing of and disposition of a petition of writ of
certiorari, or in the alternative, stay his execution pending this Court's decision in Baze.
1. On October 1 1,2006 -- over fifteen months ago -- Mr. Callahan filed a complaint
pursuant to 42 U.S.C. 4 1983 in the United States District Court, Middle District of Alabama,
Northern Division, challenging the constitutionality of Alabama's method of execution by lethal
injection. Mr. Callahan alleges violations of his right to be free from cruel and unusual
punishment under the Eighth and Fourteenth Amendments to the United States Constitution.
2. The District Court aptly summarized the highlights of the subsequent procedural
The trial in this matter was scheduled to begin on October 3, 2007. Eight days
before the trial date, on September 25,2007, defense counsel announced that the
defendants would be making changes to the State's execution protocol - the
constitutionality of which comprises the subject matter of this litigation. On the
same date, the United States Supreme Court granted certiorari in the Baze case.
Baze v. Rees, -U .S. ,128 S. Ct. 34 (2007).' On September 27,2007,
Governor Bob Riley granted a forty-five day reprieve to another condemned
prisoner "to allow the Alabama Department of Corrections sufficient time to
make modifications to its lethal injection protocol." (Doc. # 124-2.)
The parties were ready for trial, but on September 28,2007, the court was
compelled to continue the case. (Doc. # 130.) A new trial date was tentatively set
because it was not known when the State would complete the modification to its
protocol, whether the plaintiffs would agree that the modification alleviated any
constitutional violation, and, frankly, what effect the grant of certiorari in Baze
would or should have on pending chalIenges to lethal injection.
On October 26,2007, the defendants filed a revised lethal injection protocol. Five
days later, on October 3 1,2007, the Alabama Supreme Court set Callahan's
execution date for January 3 1,2008. After holding a status conference with the
' The questions presented in Buze include the correct standard by which the constitutionality of methods of
execution should he adjudged and whether Kentucky's three-dmg protocol, which is similar to Alabama's lethal
injection protocol at issue here, violates that standard.
parties, the trial was continued generally in anticipation of additional limited
discovery and the filing of the instant motion.
(District Court Opinion at 1-3 .)
3. On November 13,2007, Mr. Callahan filed with the Alabama Supreme Court a
motion to vacate the execution date order entered by that court. He filed a supplemental brief in
support thereof on November 16,2007. To date, the Alabama Supreme Court has not ruled on
4. On November 19, 2007, two and a half months before yesterday's decision, Mr.
Callahan filed a motion for stay of execution with the District Court and requested, in the
alternative, a hearing on, and determination of, the merits, without the need of a stay.
5. On December 14,2007, the District Court issued an order granting Mr. Callahan's
motion for stay.
6. Two weeks later, on December 28,2007, the State of Alabama filed a notice of
7. On January 4,2008, the State of Alabama filed in the Eleventh Circuit a Brief of
8. On January 18,2008, Mr. Callahan filed Appellee's Brief in Opposition.
9. On January 24,2008, one week later, the State filed its reply brief.
10. Yesterday (January 29,2008), the Eleventh Circuit reversed the District Court and
vacated the stay of execution, solely on the grounds that Mr. Callahan's claim is barred by a twoyear
statute of limitation. Counsel received this opinion yesterday after the close of business by
electronic mail at 6: 18 pm EST.
11. Mr. Callahan seeks an Order from this Court for a stay of execution pursuant to
28 U.S.C. $220l(f), which provides in part:
In any case in which the final judgment or decree of any court is subject to
review by the Supreme Court on writ of certiorari, the execution and
enforcement of such judgment or decree may be stayed for a reasonable
time to enable the party aggrieved to obtain a writ of certiorari from the
12. Mr. Callahan asks this Court to stay his presently scheduled execution to allow
him to timely file a petition for writ of certiorari.
13. Callahan's petition for a writ of certiorari will present the following questions:
A. Did the Eleventh Circuit err in vacating an otherwise presumptively valid
stay of execution on the basis that, even where it must be presumed that the method of
execution would otherwise be found to be unconstitutional, an execution may proceed
because the entire claim was barred by a rigid rule that a 42 U.S. § 1983 claim
challenging a method-of-execution is barred by a two-year state based statute of
limitations that begins to run at the conclusion of state direct review (or, as in this case, at
a later date when a new method of execution applies), regardless of any other factors.
B. Should a statute of limitations defense be available in a 5 1983 method of
execution. challenge despite the otherwise filly applicable equitable doctrines governing
the timeliness of such claims.
C. Can the statute of limitations ever run on a 42 U.S.C. 4 1983 claim that is
not ripe for review because the plaintiff is challenging the future harm that would be
caused by an unconstitutional execution method the implementation of which remains
STANDARDS AmNDANT TO GWTING OF A STAY OF EXECUTION
14. The authority of the courts below to enter a stay of execution has been analyzed
under the following four-part test:
(1) whether there is a substantial likelihood of success on the merits;
(2) whether the requested action is necessary to prevent irreparable injury;
(3) whether the threatened injury outweighs the harm the stay or injunction would inflict
upon the non-rnovant; and
(4) whether the requested action would serve the public interest.
Rutheiford v. McDonough, 466 F.3d 970, 979 (1 lth Cir. 2006) (Rutherford 11) (Wilson, J.,
dissenting); Hill v. McDonough, U.S., 126 S. Ct. 2096,2104 (2006); Fed. R. Civ. P. 65
(internal quotations omitted).
15. None of the traditional four factors that must be considered on a stay motion,
universally applied by every circuit, necessarily outweighs the other. As a general matter, some
circuits consider that "[tlhe irreparable harm to the plaintiff and the harm to the defendant are the
two most important factors," Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353,359 (4th
Cir. 1991), to the degree such that if the balancing of hardships favor the plaintiff, a lesser
showing on the merits is required. "In determining whether the plaintiff should prevail, the court
balances the evidence proffered for each element. Hence, a heavier showing on one or more of
the criteria will reduce the weight of proof required for the other factors." Mark Dunning Indus.,
fnc., 830 F. Supp. at 15 10. The greater the relative hardship to the party seeking the preliminary
injunction, the less probability of success must be established by the party. See Clear Channel
Outdoor Inc, v. City of Los Angeles, 340 F.3d 8 10,s 13 (9th Cir. 2003).
6 Mr. Callahan meets the standards attendant to the granting of a stay of his
execution. Each of the criteria is satisfied in this case.
I. There Is a Substantial Likelihood That Mr. Callahan Will Show That
The Statute of Limitations Holding of The Eleventh Circuit Is Wrong
17. As mentioned above, all of the requirements for a stay of execution have
presumptively been met by Mr. Callahan, as determined by the District Court, because the
Eleventh Circuit did not address any of the well-reasoned findings to that effect, including the
fact that Mr. Callahan has made the requisite showing of probable success on the merits. McNair
v. Allen, 2007 WL 4463489, at *2 (M.D. Ala. Dec. 14,2007) Judge Watkins' findings as to
these elements are at this stage presumptively correct, because the divided Eleventh Circuit
(Judge Wilson dissenting) found an "abuse of discretion" solely on the basis that he supposedly
erred in not denying the stay on statute of limitations grounds. Thus, this application for a stay is
made on behalf of an applicant who has for these purposes presumptively shown that the method
of execution the State intends to subject him to tomorrow violates the Eighth Amendment. If
this Court does not grant a stay, the presumptively unconstitutional execution will take place
tomorrow. But as Judge Wilson's dissent below and other cases show, the new statute of
limitations holding is clear error and contrary to established law. Therefore, the interests of
justice demand that a stay of execution be issued at least until Mr. Callahan has had an
opportunity to file, and this Court consider, a petition for writ of certiorari fully addressing the
erroneous Eleventh Circuit decision. (This is particularly so in light of this Court's decision to
consider the lethal injection issue in granting certiorari in Baze v. Rees, - U . S . , 128 S.
Ct. 34 (2007), and in this Court' subsequent practice with respect to stays of executions, as more
fully discussed below.)
18. Moreover, the appropriateness of a stay is all the more obvious because the statute
of limitations argument was not even properly before the Eleventh Circuit, a point that Mr.
Callahan raised below, but which the Eleventh Circuit did not even address.
19. The time constraints in this case that were clearly created by the State, as set forth
above, do not permit a full explication of the statute of limitations issue at this point because Mr.
Callahan will be executed tomorrow unless these papers are filed on Mr. Callahan's behalf and
this Court acts. Therefore, we will here simply summarize the essential aspects of the errors in
the Eleventh Circuit's holding and otherwise make the references set forth above.
20. To summarize, the Eleventh Circuit's reasoning and its conclusion with respect to
the statute of limitations are deeply flawed, clearly erroneous, and contrary to law. Except for
the Sixth Circuit decision in Cooey which has a muddled history (not cited by the Eleventh
Circuit majority), an unclear effect even in the Sixth Circuit, and is stillpending before this
Court on a Petition for Writ of Certiorari that raises the identical statute of limitations point
involved here, Cooey v. Strickland, 479 F.3d 412 (6th Cir. March 2,2007) (finding that statute of
limitations barred plaintiffs claim) (Gilman, J., dissenting); order refusing to vacate stay of
execution, Strickland v. Biros, 127 S. Ct. 1873 (March 20,2007); rehearing en banc denied,
Cooev v. Strickland, 489 F.3d 775 (6th Cir. June 1,2007) (Gilman, J., dissenting, Martin,
Daughtrey, Moore, Cole and Clay, J.J., joining in dissent); petition for cert. filed (US. Aug. 29,
2007), the courts that have considered the statute of limitation arguments advanced by the State,
and adapted by the majority Eleventh Circuit Opinion have rejected those arguments. See, e.g.,
Jones Y . Allen, 483 F. Supp. 2d 1142 (M.D. Ala. 2007); Alderman v. Donald, No. 1 :07-cv-1474-
BBM (N.D.G a. July 30,2007) (Martin, J.) (denying Pre-Answer Motion to Dismiss on the basis
of statute of limitations). See also Grayson v. Allen, 2007 WL 1491009 at *5 n. 9 (M.D. Ala.
May 2 1,2007). They have done so for good reason.
2 1. Judge Wilson in his dissent below (pages 2 1-24) makes this clear and succinctly
states that Mr. Callahan's position is correct.
For this and the other reasons set forth in the decisions and Briefs previously
referred to, it is clear that the majority in the Eleventh Circuit erred in its
conclusion that the statute of limitations began to run at the time that Mr.
Callahan selected lethal injection as a method by which he would be put to death
(and expired two years later). At the very least, Callahan's execution should be
stayed until he has an opportunity to file a petition for writ of certiorari on this
question and the Court has time to consider it. This is particularly true given the
fact that in this case there is a presumption that Mr. Callahan has otherwise met
all of the requirements for a stay including a showing of a substantial likelihood
of success on the merits.
22. In fact, as other courts have recognized, basic tort principles make clear that the
majority's reasoning was in error. Mr. Callahan's claim for an injunction to prevent future harm
is not subject to the statute of limitations because a claim, even if actionable, cannot accrue until
the harm occurs. A claim is considered ripe, meaning suitable for judicial review, at the point at
which it can give rise to a lawsuit, whether that suit is in law seeking damages for a harm that
has occurred already, or in equity seeking an injunction to prevent a harm that will occur in the
future. See Jones v. Allen, 483 F. Supp. 2d 1142, 1148 n.3 (M.D. Ala. 2007). However, a claim
that is actionable is not necessarily a claim that has accrued for statute of limitations purposes.
Id. at 1 149. For instance, a plaintiff can be the subject of a tortious act at one point in time and
yet not able to reasonably discover the harm caused by that act, and the source of that harm (the
tortious act), until some later time. In theory, the harm is actionable at the point of actual injury,
but it does not accrue, and the statute of limitations clock does not begin to tick, until the harm
can reasonably be discovered. United States v. Kubrick, 444 U.S. 1 11, 122 (1979). Similarly,
when a plaintiff is seeking an injunction, he is seeking to enforce a right in court. Although his
claim may be ripe for judicial review, the claim may not have accrued for statute of limitations
purposes if no harm has yet occurred Jones, 483 F. Supp. 2d at 1149.
23. Not all tortious acts are suitable for equitable relief. In fact, in most tort actions,
the harm has already accrued, and the relief sought is not equity, but damages. See Albertson v.
T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1989) (explaining that "a cause of action for a
tort accrues when there has been an invasion of the plaintiffs legally protected
interest.. .ordinarily, this invasion occurs at the time the tortuous act is committed" (emphasis
added) (internal citations omitted)). However, the very remedy and language of 42 U.S.C. 5
1983 presupposes that there are claims where the harm has not yet accrued, and that the purpose
of the § 1983 suit is not to remedy the harm, but to prevent the harm from occurring in the first
instance. Mitchurn v. Foster, 407 U.S. 225,242 (1972). As the Court stated in Mitchum:
"Congress plainly authorized the federal courts to issue injunctions in 9 1983 actions, by
expressing authorizing a "suit in equity7' as one of the means of redress." Id. The court further
noted that "federal injunctive relief against a state court proceeding can in some ci~cumstances
be essential to prevent great, immediate, and irreparable loss of a person's constitutional rights."
24. Both the availability of equity suits under ij 1983 and the Supreme Court's
recogcition of the importance of federal injunctive relief suggest that a 5 1983 claim need not
have accrued to be actionable. Because statutes of limitations attach only to accrued claims, and
4 1983 claims seeking injunctions have not yet accrued, such claims are not subject to a statute
of limitations. See Jones, 483 F. Supp. 2d at 1149. As Judge Thompson stated in the Jones
opinion, "There is simply no reason why, in order for a plaintiff to seek injunctive relief to
prevent a future unconstitutional harm from occurring, the statute-of-limitations clock must
already be ticking." u. Mer all, statutes of limitations are designed to protect against "stale
claims." Nat71 R.R. Passenger Corn. v. Mornan, 536 U.S. 101, 125 (2002). But an action
seeking an injunction to protect against an imminent future harm is by definition not "stale", it
cannot be in the "too-distant past." Jones, 483 F. Supp. 2d at 1150-51 n.4.
25. In establishing when the claim accrues, Judge Thompson in Jones recognized that
a claimant's knowledge of possible harm is not the constitutional violation at stake. The
knowledge of the potential for harm from Alabama's execution procedure is not a constitutional
violation. Rather, it is the implementation of that procedure that raises the risk of a constitutional
violation he will suffer if he is subjected to Alabama's execution protocol. As such, the claim
could not possibly accrue for statute-of-limitations argument in this situation "anomalous to say
-- the least." Id. at 1 145. Judge Watkins correctly followed the reasoning of Jones in his decision
denying summary judgment below, McNair v. Allen, 2007 WL 4106483, at *4 (M.D. Ala. Nov.
16,2007), and his decision in Grayson, 499 F. Supp. 2d 1228, 1235 (M.D. Ala. 2007), for further
discussions on this point we refer to those opinions.
26. Additionally, the Eleventh Circuit erred because the courts already have more
than enough flexibility in considering the timelines of a 9 1983 challenge to a method of
execution in the body of equitable principle and concepts of dilatoriness already established as
applying to such claim.
27. Moreover, a rigid statute of limitations rule would contradict the underlying logic
of evolving standards of decency. The Supreme Court has long made clear that the Eighth
Amendment "must draw its meaning from the evolving standards of decency that mark the
progress of a maturing society." Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion)
(Warren, C.J.). It is through this framework that numerous punishments once deemed
constitutional were later found to violate the Eighth Amendment. S e e , . , Atkins v. Virginia,
536 U.S. 304 (2002) (banning the execution of mentally retarded offenders thirteen years after
ruling that the practice did not violate the Eighth Amendment); Roper v. Simmons, 543 U.S. 551
(2005) (banning the execution of juvenile offenders sixteen years after ruling that the practice did
not violate the Eighth Amendment).
28. Any statute of limitations for tj 1983 lethal injection claims would be susceptible
to a situation in which the nation's standards of decency evolved between the end of the statute
of limitations period and the actual implementation of the execution protocol. However, capital
cases take years to proceed from the conclusion of the direct appeal to execution; in that time,
Eighth Amendment standards of decency, which by definition evolve over time, could well
29. Even a later triggering date - for example, the conclusion of the claimant's federal
habeas action - would risk this problem. A claimant might file a successive habeas action, or the
state in which he is under a death sentence might delay in setting an execution date, or even
temporarily halt executions. See, e.g., Fla. Exec. Order No. 260 @ec. 15, 2006), available at
h t t p : / / s u n 6 . d r n s . s t a t e . f l . u s / e o g - n e w / e o g / o e c t i o n , p d f
(suspending executions by lethal injection pending completion of Governor's Commission
investigation and implementation of necessary revisions). Any statute of limitations on an
Eight11 Amendment-based lethal injection claim could prevent a claimant from having his claim
measured by contemporary standards of decency, undermining the principle of evolving
standards of decency.
30. Of course the specific manner in which lethal injection is carried out in any given
state can and does change. It did, in fact change in Alabama just months ago: consider very
simply the fact that the method to be applied to Mr. Callahan himself changed in the midst of the
proceedings on his claim in the District Court below, and in fact delayed his trial.
3 1. For all these reasons the Eleventh Circuit decision is simply wrong on the statute
of limitation holding. A stay must be issued to give Mr. Callahan an opportunity to hlly address
this complex issue and have this Court fully consider it in a petition for writ of certiorari.
11. The Execution Also Should Be Staved in Light of Baze
32. A stay of execution also should issue given the pendency in this Court of the &
case and this Court's practice in granting or upholding stays of execution in lethal injection cases
since it granted certiorari in a.This Court has granted, or refused to vacate, stays of
execution in every case post-& that has raised a lethal injection challenge (except for the case
. - where the condemned was scheduled to be executed the same day as & was issued). See, e.g.,
Arthur v. Allen, No. 07-0342-WS-C, 2007 WL 2320069 (S.D. Ala. Aug. 10,2007), aff d No. 07-
13929, 2007 WL 2709942 (1 1 th Cir. Sept. 17,2007), stay granted pending disposition of petition
for writ of certiorari 128 S. Ct. 740, No. 07395,2007 WL 4248619 (Dec. 5,2007); Schwab v.
-Florid-a, S. C t . ,N o. 07A383,2007 WL 3380059 (Nov. 15,2007) (stay of execution
granted pending disposition of petition for writ of certiorari); Berry v. Epps, - S. C t . , NO.
07-7348 (07A367), 2007 WL 3 156229 (Oet. 30,2007) (same); Turner v. Texas, - S. Ct. -,
No. 07A272,2007 WL 2803693 (Sept. 27,2007) (same); Emmett v. Johnson, - S. Ct. -,
No. 07A304,2007 WL 3018923 (Oct. 17,2007) (stay of execution granted pending final
disposition of appeal by the Fourth Circuit or further order of the Court); Norris v. Jones, - $.
Ct. , No. 07A3 1 1,2007 WL 29991 65 (Oct. 16,2007) (denying application to vacate a stay
granted by the Eighth Circuit). See also In re Richard, 128 S. Ct. 37 (Sept. 25,2007) (denying
stay of execution and petitions for writs of habeas corpus and mandamus and/or prohibition).
Further, courts in Arizona, Georgia, Nevada, Texas, Delaware and Arkansas all have stayed
executions in light of Baze, while state officials in Texas and Oklahoma are voluntarily holding
off in seeking execution dates. In virtually all of these cases there are questions of dilatoriness
andlor statute of limitations. In fact, all or at least most, involve timeliness arguments by much,
stronger than such claims against Callahan here.
33. Consider, then, the implications for the appearance ofjustice and fairness if Mr.
Callahan were to be hastily executed after the State caused a delay of the trial on his claim and
dragged out its appeal from the order granting the stay that was necessary only because of that
delay, and it were later to be found in that the same three-drug cocktail employed by
Alabama violates the Eighth Amendment, or if this Court determined that a different standard for
adjudicating Eighth Amendment claims should be used than the standard employed by the
-- District Court for Mr. Callahan's claim. Mr. Callahan has as a strong interest in having his
claims adjudicated with the benefit of this Court's ruling in & as other condemned inmates
challenging the constitutionality of their states' lethal injection protocols whose executions
already have been delayed pending Baze.
34. Clearly, were this Court to render a decision in Baze that had the effect of finding
a method of execution unconstitutional, states would not be free to execute inmates with that
method on the grounds that the statute of limitations had run as to these claims. Without a stay
here, the State will have made an "end run3' around that fact by its timing tactics. Indeed, it
seems highly likely that Mr. Callahan would be the only person executed in the United States
during the pendency of as a result of the State's race to execute. Not only would that be a
gross injustice, it would undermine the jurisdiction of this Court and its interest in giving effect
to its decisions. That should not be allowed to happen.
|Lower Ct:||United States Court of Appeals for the Eleventh Circuit|
|~~~Date~~~||~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~|
|Jan 30 2008||Application (07A630) for stay of execution of sentence of death pending the filing and disposition of a petition for a writ of certiorari, submitted to Justice Thomas.|
|Attorneys for Petitioner:|
|Vincent R. Fitzpatrick||White & Case, LLP||(212) 819-8200|
|1155 Avenue of the Americas|
|New York, NY 20036|
|Party name: James Callahan|
|Attorneys for Respondents:|
|J. Clayton Crenshaw||Alabama State House||(334) 242-7300|
|Office of the Attorney General|
|11 South Union Street|
|Montgomery, AL 36130-0152|
|Party name: Richard F. Allen, Commissioner, Alabama Department of Corrections, et al.|
From Standdown blog :
AL.com carries the AP dispatch, "Alabama senator to try death penalty moratorium for 8th time." The legislator is Senator Hank Sanders.
The Selma Democrat announced Tuesday that when the Legislature convenes Feb. 5, he will again sponsor legislation to place a three-year moratorium on executions in Alabama.
Legislative records show Sanders has been introducing the moratorium bill annually since at least 2001, but it has never been approved by the Senate, much less the House.
Sanders was joined at a windy outdoor news conference Tuesday by supporters of his bill. Judy Cumbee, first vice president of the Alabama New South Coalition, said the wind was symbolic.
"These are winds of change," she said as she brushed her hair out of her face.
Cumbee, Sanders and others said there is growing concern in Alabama about the fairness of the death penalty, and that is causing more people to support a moratorium while officials look at how the law is administered.
Sanders' moratorium bill would do more than impose a three-year ban. It would also require changes in the way attorneys are appointed to represent indigent clients and would implement U.S. Supreme Court rulings against executing anyone who was mentally retarded or under 18 years old when their crime occurred.
The Anniston Star carries, "Alabama's legislative session: Our delegations priorities." State Representative Randy Wood (R-Anniston) announced that he will sponsor what appears to be a bill allowing th edeath penalty for non-homicidal child rape.
A second bill will give judges and district attorneys the option of seeking the death penalty in severe sexual-abuse cases involving children. It is a proven fact that sexual predators cannot be rehabilitated.
Similar legislation failed in last year's Alabama legislative session.
From SCOTUS blog :Wednesday, January 30th, 2008 3:55 pm | Lyle Denniston | Comments (0) | Print This Post
Three weeks after the Supreme Court held a hearing on constitutional issues surrounding the lethal injection method of execution for murder, the Justices are expected to be asked later Wednesday whether to keep intact an informal but functional bar to such executions until a ruling is issued in the test case. Alabama legal sources said that attorneys for James Callahan, facing execution in that state at 6 p.m. Thursday, were preparing an application seeking to postpone the execution.
The Court has not permitted an execution to occur since shortly after it agreed to examine the lethal injection method in an order on Sept. 25.
U.S. District Judge W. Keith Watkins of Montgomery on Dec. 14 barred Callahan’s execution, concluding that it “would be a waste of judicial resources” if the Court were to go ahead and rule on the constitutionality of Alabama’s version of the three-drug execution protocol until the Supreme Court has ruled in the case of Baze v. Kentucky (07-5439) — argued Jan. 7 in the Supreme Court. Thus, Judge Watkins opted for a stay. While he said that Callahan might prevail in a challenge to Alabama’s method under one theory, the judge was reluctant to decide the pending challenge on that basis while the Baze decision is awaited. That was the key factor in his decision to postpone the scheduled execution. The judge’s 10-page opinion can be downloaded here.
On Tuesday, however, the 11th Circuit Court, in a 2-1 ruling, lifted Judge Watkins’ order, clearing the way for the Thursday execution to proceed. Without examining Callahan’s challenge to Alabama’s execution formula, the majority found that he had filed his challenge too late. Callahan, the majority said, shoujld have begun his challenge before July 31, 2004 — two years after he first selected lethal injection as the method of his execution. “In light of the fact Callahan’s complaint was filed more than two years beyond the limitations period, the district court abused its discretion by entering a stay of execution. We now vacate that decision.” The Circuit Court’s 24-page opinion (which includes the dissent) can be downloaded here.
Callahan was sentenced to death in 1982 for the murder of a Jacksonville State University student, Rebecca Suzanne Howell, after kidnapping her at a landromat in Jacksonville, Ala. She was raped and murdered, and her body was dumped in Tallaseehatchee Creek. His conviction and death sentence became final on Oct. 1, 1990.
After other challenges in his case failed, he filed a civil rights lawsuit Oct. 11, 2006, claiming that Alabama’s lethal injection method of execution was unconstitutional under the Eighth Amendment. The trial of that lawsuit was due to begin in September of last year, but the state began a new review of the protocol. Judge Watkins, who also noted that the Supreme Court had agreed to hear the Baze case, decided to postpone the trial.
The state issued a revised protocol last Oct. 26, and the state Supreme Court then set Callahan’s execution for Jan. 31. That was when Callahan began pursuing a delay.
Wednesday, 30 January 2008
U.S. COURT OF APPEALS
Jan. 29, 2008
THOMAS K. KAHN
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
D. C. Docket Nos.06-00695-CV-N & 06-00919-CV-N
RICHARD ALLEN, Commissioner,
Alabama Department of Corrections, individually
and in his official capacity,
GRANTT CULLIVER, Warden, Holman Correctional
Facility, in his individual and official capacity,
Appeal from the United States District Court
for the Middle District of Alabama
(January 29, 2008)
Before TJOFLAT, BLACK and WILSON, Circuit Judges.
BLACK, Circuit Judge:
James Callahan is an Alabama death row inmate scheduled for execution on
January 31, 2008. On October 11, 2006, Callahan filed an action under 42 U.S.C.
§ 1983, contending the method of execution chosen by the State of Alabama
constitutes cruel and unusual punishment in violation of the Eighth Amendment.
Finding Callahan’s case had a significant possibility of succeeding on its merits,
the district court entered a stay of execution on December 14, 2007, in order to
permit Callahan to fully litigate his constitutional challenge. On appeal,
Appellants contend the court abused its discretion by entering the stay.
We do not reach the relative merits of Callahan’s constitutional claim
because we conclude the claim is barred by the statute of limitations. Callahan’s
limitations period began to run on July 31, 2002, when he selected lethal injection
as the method by which he would be put to death, and expired two years later, on
July 31, 2004. In light of the fact Callahan’s complaint was filed more than two
years beyond the limitations period, the district court abused its discretion by
entering a stay of execution. We now vacate that decision.
1 Although Callahan was not charged with rape, forensic evidence suggested Howell was
sexually assaulted prior to her death.
The full details of Callahan’s crime are set forth in Callahan v. Campbell,
427 F.3d 897, 903-10 (11th Cir. 2005). In short, on February 3, 1982, Callahan
abducted 26-year-old Rebecca Suzanne Howell from a laundromat in Jacksonville,
Alabama. He murdered her, then dumped her body in a creek, where it was
discovered two weeks later.1
On June 26, 1982, Callahan was convicted of a capital offense, and shortly
thereafter was sentenced to death. The Alabama Supreme Court reversed
Callahan’s conviction and sentence after finding incriminating statements had
been admitted improperly, and the case was remanded for a new trial. Ex parte
Callahan, 471 So. 2d 463 (Ala. 1985). At the second trial, the jury again found
Callahan guilty, and a sentence of death was re-imposed. Both the Alabama Court
of Criminal Appeals and the Alabama Supreme Court affirmed Callahan’s
conviction and sentence. Callahan v. State, 557 So. 2d 1292 (Ala. Crim. App.
1989); aff’d, Ex parte Callahan, 557 So. 2d 1311 (Ala. 1989).
Callahan’s conviction and sentence became final on October 1, 1990, when
the United States Supreme Court denied his petition for certiorari. See Callahan v.
Alabama, 498 U.S. 881, 111 S. Ct. 216 (1990). Callahan then filed a state
postconviction motion. The trial denied the motion, and the court of appeals
affirmed the denial. Callahan v. State, 767 So. 2d 380 (Ala. Crim. App. 1999).
On March 31, 2000, the Alabama Supreme Court denied certiorari. Ex parte
Callahan, 767 So. 2d 405 (Ala. 2000).
On March 29, 2001, Callahan petitioned for a writ of habeas corpus in the
United States District Court for the Northern District of Alabama. Twice the
district court granted relief, and twice this court reversed. See Callahan v. Haley,
313 F. Supp. 2d 1252 (N.D. Ala. 2004), vacated and remanded sub. nom.
Callahan v. Campbell, 396 F.3d 1287 (11th Cir. 2005); Callahan v. Campbell, 427
F.3d 897 (11th Cir. 2005). On October 10, 2006, the Supreme Court denied
Callahan’s petition for a writ of certiorari on his habeas claims. Callahan v. Allen,
— U.S. —, 127 S. Ct. 427 (2006).
At the time Callahan was sentenced, Alabama executed inmates by
electrocution. On July 1, 2002, Alabama adopted lethal injection as its preferred
form of execution and gave inmates already on death row 30 days in which to
select electrocution as the method by which they would die. Callahan did not opt
out of the new protocol, and therefore became subject to death by lethal injection
on July 31, 2002.
2 Two days later, Alabama Governor Bob Riley granted a 45-day reprieve to another
condemned prisoner, Thomas Arthur, to allow the Alabama Department of Corrections to review
its lethal injection protocol.
On October 11, 2006, one day after the Supreme Court denied Callahan’s
request for certiorari on the denial of his federal habeas petition, Callahan filed a
complaint under 42 U.S.C. § 1983, alleging Alabama’s lethal injection protocol
violates his Eighth Amendment right to be free from cruel and unusual
punishment. Appellants moved for summary judgment, contending the claim was
barred by the statute of limitations and Callahan had failed to adduce evidence
from which a rational trier of fact could conclude Alabama’s method of execution
violates his constitutional rights. In addition, Appellants urged the court to find
the lawsuit equitably barred because of Callahan’s delay in filing it. After denying
Appellants’ motion for summary judgment in its entirety, the district court set trial
for October 3, 2007.
On September 25, 2007, eight days before the trial was slated to begin,
Alabama announced it would be reviewing its execution protocol. That same date,
the United States Supreme Court granted certiorari in Baze v. Rees, — U.S. —,
128 S. Ct. 34 (Sept. 25, 2007), a case brought by a death row inmate raising a
challenge to Kentucky’s nearly identical lethal injection protocol.2
3 On the same day, the Alabama Supreme Court also set a new execution date for
Thomas Arthur. See supra, n.1.
In the midst of these events, the district court determined it was prudent to
continue the case, despite the parties’ readiness for trial. On October 26, 2007, the
State filed its revised lethal injection protocol, which differed only minimally from
prior procedures. Five days later, on October 31, 2007, the Alabama Supreme
Court set Callahan’s execution date for January 31, 2008.3
Callahan moved for a stay of execution, arguing his claim was timely
brought and had a significant possibility of success. The district court agreed, and
granted the stay. Appellants now ask this court to find the entry of a stay was an
abuse of discretion.
When a capital defendant seeks to challenge on constitutional grounds the
method by which he will be executed, courts must balance the competing interests
of the defendant and the State. A defendant’s interest in being free from cruel and
unusual punishment is primary; however, the State’s interest in effectuating its
judgment remains significant. Nelson v. Campbell, 541 U.S. 637, 644, 124 S. Ct.
2117, 2123 (2004) (“State retains a significant interest in meting out a sentence of
death in a timely fashion”). The Supreme Court has repeatedly admonished courts
regarding their obligation to guard against litigation brought solely for the purpose
of delay. Hill v. McDonough, 547 U.S. —, 126 S. Ct. 2096, 2103 (2006) (noting
“courts should not tolerate abusive litigation tactics” in constitutional tort cases
challenging methods of execution). Courts have given special attention to the
timeliness of method of execution challenges brought under 42 U.S.C. § 1983.
Courts assessing the timeliness of a § 1983 method of execution challenge
may do so in either of two ways. The first is to ask whether the action has been
timely brought under the applicable statute of limitations. The second involves an
equitable inquiry that arises when a prisoner requests a stay of execution in order
to fully litigate his constitutional claim. In the latter circumstance, courts ask
whether the litigant “unreasonably delayed” before filing his claim and should
therefore be barred from raising his challenge on the eve of execution.
While acknowledging the existence of a statute of limitations for § 1983
claims, our prior cases addressing method of execution challenges have focused
exclusively on the second inquiry, employing an equitable analysis to determine
whether a capital litigant’s challenge has been brought too late to warrant a stay of
execution. See, e.g., Schwab v. Sec., Dep’t of Corr., 507 F.3d 1297, 1301 (11th
Cir. 2007). We have yet to determine how the relevant statute of limitations
4 Under nearly identical circumstances, Jones raised a claim identical to the one
Callahan brings here. We found Jones had unreasonably delayed in bringing his § 1983
challenge even though he filed it while his petition for a writ of certiorari on the denial of his
habeas petition was still pending in the United States Supreme Court. Jones, 485 F.3d at 638.
By contrast, Callahan filed his § 1983 challenge a day after his petition for certiorari was denied.
applies to inmates who wish to bring a § 1983 challenge to the method of their
execution, because the question has not been placed squarely before us.
In Jones v. Allen, 485 F.3d 635 (11th Cir. 2007), we affirmed on equitable
grounds the district court’s denial of a stay of execution in a case closely
analogous to this one.4 Although we took note of the district court’s finding that
the claim was not barred by the statute of limitations, we did not review that
decision because the Government had not cross-appealed. Id. at 638 n.1. We have
dealt similarly with other cases, all of which involved appeals by a defendant,
rather than by the Government. See, e.g., Williams v. Allen, 496 F.3d 1210, 1215
n.2 (11th Cir. 2007) (“Because we affirm on equitable grounds the district court’s
judgment dismissing Williams’s challenge to the State’s method of execution, we
need not address the State’s alternative argument that Williams’s suit is barred by
the statute of limitations.”); Grayson v. Allen, 491 F.3d 1318, 1326 n.5 (11th Cir.
There is a close connection in this case between the district court’s decision
to impose a stay and its finding that Callahan’s claim was timely filed. In granting
Callahan’s request for a stay, the district court properly engaged in a traditional
equitable analysis, considering, among other things, whether Callahan had shown
“a significant possibility of success on the merits” of his § 1983 claim. See Hill,
547 U.S. at —, 126 S. Ct. at 2104. The district court concluded Callahan made the
We review the district court’s grant of preliminary injunctive relief for
abuse of discretion. See Grayson, 491 F.3d at 1319 (applying abuse of discretion
standard to review denial of stay in § 1983 action). It would be “a paradigmatic
abuse of discretion for a court to base its judgment on an erroneous view of the
law,” Schlup v. Delo, 513 U.S. 298, 333, 115 S. Ct. 851, 870 (1995) (O’Connor, J.,
concurring), and the district court’s decision would be erroneous if we were to
find the claim barred by the statute of limitations, as Appellants contend it was.
All constitutional claims brought under § 1983 are tort actions, subject to
the statute of limitations governing personal injury actions in the state where the
§ 1983 action has been brought. Wilson v. Garcia, 471 U.S. 261, 275-76, 105 S.
Ct. 1938, 1946-47 (1985). Callahan’s claim was brought in Alabama, where the
governing limitations period is two years. Ala. Code § 6-2-38; Jones v. Preuit &
Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989) (en banc). Therefore, in order to
have his claim heard, Callahan was required to bring it within two years from the
date the limitations period began to run.
It has long been the law of this Circuit that in § 1983 actions “the statute of
limitations does not begin to run until the facts which would support a cause of
action are apparent or should be apparent to a person with a reasonably prudent
regard for his rights.” Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir.
1987) (internal quotations omitted). What does that mean as applied to a capital
litigant seeking injunctive relief for an injury that has not yet occurred, but can be
reasonably anticipated? The question is one of first impression in this Circuit.
There are at least four potentially viable dates on which Callahan’s claim
could accrue: (1) October 1, 1990, the date his death sentence became final;
(2) July 31, 2002, the date on which it became clear Callahan would die by
Alabama’s lethal injection protocol (rather than by any other method);
(3) October 10, 2006, the date the denial of his federal habeas petition became
final; and (4) the day of his execution, when the ultimate injury will occur. It is
well established that a federal claim accrues when the prospective plaintiff “knows
or has reason to know of the injury which is the basis of the action.” Corn v. City
of Lauderdale Lakes, 904 F.2d 585, 588 (11th Cir. 1990). Applying that principle
to the facts of this case, we reject execution and the completion of federal habeas
review as the points from which to measure the limitations period in a method of
execution challenge. We hold a method of execution claim accrues on the later of
the date on which state review is complete, or the date on which the capital litigant
becomes subject to a new or substantially changed execution protocol. For the
reasons set forth below, we conclude Callahan’s claim accrued on July 31, 2002,
when he selected lethal injection as the method by which he would be executed.
A. Date of Execution
The district court held Callahan’s claim could not accrue until the moment
of execution because the statute of limitations could not “attach to an act that has
yet to occur and a tort that is not yet complete.” Dist. Ct. Order dated Nov. 16,
2007, dkt. # 146, at 9-10. See also Grayson v. Allen, 499 F. Supp. 2d 1228, 1235
(M.D. Ala. 2007); Jones v. Allen, 483 F. Supp. 2d 1142, 1153 (M.D. Ala. 2007).
Although we agree with the general principle recited by the district court, we
disagree with its application to cases such as this one, where the ultimate injury is
reasonably likely and wholly foreseeable.
In a recent challenge to the lawfulness of detention brought under § 1983,
the Supreme Court explained accrual under the statute of limitations “occurs when
the plaintiff has a complete and present cause of action, that is, when the plaintiff
can file suit and obtain relief.” Wallace v. Kato, — U.S. —, 127 S. Ct. 1091, 1095
(2007) (internal quotations omitted). It is clear a capital litigant may file suit and
obtain injunctive relief long before he is executed. Therefore, it is difficult to
reconcile Wallace with the district court’s holding that the limitations period
would not begin to run until after the litigant has died (at which time the claim
would be simultaneously mooted). Cf. Cooey v. Strickland, 479 F.3d 412, 418
(6th Cir. 2007) (noting problems with selecting date of execution as date of
accrual in method of execution claims).
Moreover, to hold the limitations period does not begin to run until the
moment of death would be inconsistent with the manner in which we have treated
other § 1983 claims seeking prospective relief, such as those involving challenges
to parole eligibility. For example, in Lovett v. Ray, 327 F.3d 1181 (11th Cir.
2003), we dismissed as time barred a prisoner’s complaint that a 1998 change in
parole procedure would render him ineligible for parole consideration in 2006.
We held the litigant “knew, or should have known, all of the facts necessary to
pursue a cause of action” in 1998, but nonetheless waited beyond the two year
limitation period before filing his claim. Id. at 1182. Despite the fact the plaintiff
was seeking prospective relief against a future injury, we held the claim was
untimely. Id. at 1183. See also Brown v. Georgia Bd. of Pardons & Paroles, 335
F.3d 1259, 1261 (11th Cir. 2003) (reiterating statute of limitations begins to run
from date facts which would support cause of action should be apparent to person
with reasonably prudent regard for his rights).
For these reasons, we conclude death is not the moment from which to
measure the accrual of the limitations period for method-of-execution claims
brought under § 1983, and we turn to the second option, the date on which federal
habeas review ends.
B. Completion of Federal Habeas Review
Callahan filed this lawsuit one day after the Supreme Court denied his
petition for review of the denial of his federal habeas petition. Were we to
conclude the denial of certiorari is the moment from which to measure the
limitations period, Callahan’s complaint would be timely. We do not, however,
adopt the completion of habeas review as the moment of accrual because doing so
would prolong unnecessarily the time during which a litigant should reasonably
anticipate the need to file suit and would fail to show proper respect for principles
Respect for the equality and independence of state courts is a cornerstone of
our judicial system. Under well-established principles of federalism, federal
courts operate within
a system in which there is sensitivity to the legitimate interests of
both State and National Governments, and in which the National
Government, anxious though it may be to vindicate and protect
federal rights and federal interests, always endeavors to do so in ways
that will not unduly interfere with the legitimate activities of the
Younger v. Harris, 401 U.S. 37, 44, 91 S. Ct. 746, 750-51 (1971). These
principles apply with special force in matters of criminal law. McCleskey v. Zant,
499 U.S. 467, 491, 111 S. Ct. 1454, 1469 (1991) (“Our federal system recognizes
the independent power of a State to articulate societal norms through criminal law;
but the power of a State to pass laws means little if the State cannot enforce
them.”). Federal review of state court judgments, while an important check on
possible constitutional abuses, should be carried out in a timely fashion to prevent
unnecessary interference with a state’s authority.
In considering when a method-of-execution claim accrues under § 1983, we
are especially mindful of the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), which Congress passed “to reduce delays in the execution of state
and federal criminal sentences, particularly in capital cases, . . . and to further the
principles of comity, finality, and federalism” by curtailing the ability of federal
habeas courts to review state court judgments. Woodford v. Garceau, 538 U.S.
202, 206, 123 S. Ct. 1398, 1401 (2003) (internal quotations omitted). Although
It is not clear why Alabama abandoned its standard 5 procedure in this case, waiting until
well after Callahan’s federal habeas review was finished before asking the Alabama Supreme
Court to set the date of his execution. It may have been mere fortuity.
method-of-execution challenges brought under § 1983 are not governed by
AEDPA, they do “fall at the margins of habeas,” Nelson, 541 U.S. at 646,
124 S. Ct. at 2124; Cooey, 479 F.3d at 421, and therefore implicate many of the
same comity concerns AEDPA was designed to address. These concerns counsel
away from setting the moment of accrual at the end of federal habeas review, since
doing so would provide capital defendants with a means of delaying execution
even after their sentences have been found lawful by both state and federal courts.
As an example, consider the State of Alabama. It is well known in this
Circuit that “it is common practice for the State to ask the Alabama Supreme Court
to set an execution date for a death-row inmate shortly after the United States
Supreme Court has denied certiorari review of the petitioner’s federal habeas
petition,” Williams, 496 F.3d at 1213, which as “a matter of common
sense . . . eliminates the last possible obstacle to execution,” Jones, 485 F.3d at
639-40 n.2.5 Were we to hold a § 1983 method-of-execution challenge accrues on
the date federal habeas review ends, we would effectively provide capital
defendants with a veto power over the state’s ability to effectuate its judgment at
the close of federal habeas review. Cf. Thompson v. Wainwright, 714 F.2d 1495,
1506 (11th Cir. 1983) (“Each delay, for its span, is a commutation of a death
sentence to one of imprisonment.”).
Furthermore, in pinpointing the moment a § 1983 claim accrues, we remain
mindful of our own equity jurisprudence. Although the Supreme Court has
sanctioned the filing of § 1983 claims challenging the constitutionality of
execution methods, the Court has emphasized that the availability of § 1983
litigation does not diminish the interest of states and crime victims “in the timely
enforcement of a sentence,” and does not “deprive federal courts of the means to
protect” that interest. Hill, 547 U.S. at —, 126 S. Ct. at 2104 ( “[F]ederal courts
can and should protect States from dilatory or speculative suits.”). To protect this
interest, courts apply a strong equitable presumption against a stay of execution
“where a claim could have been brought at such a time as to allow consideration of
the merits without requiring entry of a stay.” Nelson, 541 U.S. at 650, 124 S. Ct.
at 2126; Schwab, 507 F.3d at 1301.
Following that reasoning, we have suggested a capital litigant bringing a
§ 1983 claim in Alabama can foresee his complaint will be untimely if he waits to
file it until the completion of federal collateral review. Jones, 485 F.3d at 639-40
n.2 (“Waiting to file suit until the Supreme Court has denied certiorari review of
an inmate’s federal habeas petition . . . is simply too late to avoid the inevitable
need for a stay of execution.”). If we were to hold the limitations period begins to
run when federal habeas review ends, claims which have just accrued under the
Alabama statute of limitations would always be untimely as a matter of equity.
Such a rule would be indefensible, and we decline to adopt it.
C. Date Death Sentence Became Final
The next possible accrual date is the day on which a litigant’s death
sentence becomes final following direct appeal. Ordinarily, this is the date on
which a capital defendant’s § 1983 challenge to the method of his execution will
accrue because it is the date by which the relevant facts (i.e., the manner and
certainty of execution under state law) should be apparent to a person with a
reasonably prudent regard for his rights. See Mullinax, 817 F.2d at 716. Accord
Cooey, 479 F.3d at 421-22 (finding completion of direct review appropriate
moment from which to measure accrual); Neville v. Johnson, 440 F.3d 221, 222
(5th Cir. 2006) (“A challenge to a method of execution may be filed any time after
the plaintiff’s conviction has become final on direct review.”).
There are several reasons why the completion of state review will ordinarily
trigger the statute of limitations for a challenge to the method of execution. First,
by requiring a defendant to wait to bring a claim after direct review is complete (as
opposed, say, to when the sentence is first imposed), we ensure claims are not
brought prematurely, before state courts have had an adequate opportunity to
correct any infirmities in the defendant’s conviction or sentence. Second, by
requiring a claim to be brought within two years of the completion of state review,
we guarantee defendants’ constitutional challenges to the method of their
execution can be fully adjudicated and at the same time protect states from
unnecessary interference in carrying out their judgments. Finally, selecting the
completion of direct appeal as the moment a § 1983 claim accrues has the added
benefit of mirroring the time at which a defendant’s habeas limitations period
begins to run, see 28 U.S.C. § 2244(d)(1)(A), thereby simplifying the
postconviction labyrinth of filing deadlines through which capital litigants must
Callahan’s conviction became final in 1990, sixteen years before this case
was filed. Nevertheless, the statute of limitations was not triggered by the
completion of state review in this case because, at that time, Alabama had not yet
adopted lethal injection as a form of execution. Until it became clear that lethal
injection was the method by which he would die, Callahan lacked a “complete and
present cause of action,” Wallace, 127 S. Ct. at 1095, and his claim did not accrue.
We turn, therefore, to the final proposed triggering date: July 31, 2002, the day
Callahan selected lethal injection as the means by which he will die.
D. Date the Execution Protocol Became Applicable to Callahan
As we recognized in Jones, the Alabama Legislature changed the State’s
preferred method of execution from electrocution to lethal injection in July 2002.
485 F.3d at 637. Current death row inmates, including Jones and Callahan, were
given 30 days in which to choose electrocution as the means by which they would
prefer to die. Id. Any inmates who had not selected electrocution by that time
would be subject to death by lethal injection. Id. (citing Ala. Code § 15-18-82.1
(2006 Cumulative Supp.)). By failing to choose electrocution by July 31, 2002,
Callahan chose to die by lethal injection.
Although Jones was decided on equitable grounds, we noted Jones’ lethal
injection challenge ripened in July 2002, when it became clear he would be
executed by lethal injection:
We see no convincing reason why, after Alabama made lethal
injection its primary method of execution, Jones could not have
brought his method-of-execution challenge sooner than he did. Jones
knew of the State’s intention to execute him at least by July 2002. “It
was during that period—in which the execution was not so much an
imminent or impending danger as it was an event reasonably likely to
occur in the future—that Jones needed to file this challenge.”
Id. at 640 (quoting Harris v. Johnson, 376 F.3d 414, 418 (5th Cir. 2004)). There
is no doubt Callahan, too, was free to challenge the method of his execution
beginning July 31, 2002, by which time the facts which would support a cause of
The dissent notes Alabama’s execution 6 protocol is subject to change. Although that is
true, neither party suggests the lethal injection protocol has undergone any material change
between 2002 and the present.
action should have been apparent to any person with a reasonably prudent regard
for his rights.6 Mullinax, 817 F.2d at 716. The statute of limitations began to run
at that time; therefore, absent a significant change in the state’s execution protocol
(which did not occur in this case), Callahan was required to file his Eighth
Amendment challenge by July 31, 2004—more than two years before his
complaint was filed.
Unguided by a statement of this Circuit’s position on the relevant statute of
limitations, it is understandable why the court (and the parties) placed more
emphasis on the merits of Callahan’s Eighth Amendment challenge and the
equities of the stay than on the threshhold question of whether the complaint was
barred by the statute of limitations. Nevertheless, in light of our holding today, we
conclude the district court abused its discretion by determining Callahan had a
significant possibility of success on the merits of his claim when, in fact, the
complaint was filed beyond the applicable two-year statute of limitations.
Consequently, the district court’s order staying the execution is VACATED.
WILSON, Circuit Judge, dissenting:
I would affirm the entry of the stay based on the rationale articulated by
Judge Gilman in his dissent in Cooey v. Strickland, 479 F.3d 412 (6th Cir. 2007).
In my view, a method-of-execution challenge brought under § 1983 does not
accrue until the prisoner knows or has reason to know the facts giving rise to his
claim and the prisoner’s execution becomes imminent. See id. at 426 (Gilman, J.,
dissenting). For accrual purposes, the execution becomes imminent when the
prisoner has exhausted all of his state and federal challenges to the validity of the
sentence. See id. I find this approach preferable to that adopted by the majority,
which effectively requires a death-sentenced prisoner to file a method-ofexecution
claim years before his execution is to take place, during which time the
challenged protocol could be materially changed. Accordingly, I respectfully
As the majority correctly notes, it is well established that a federal claim
accrues when the prospective plaintiff “knows or has reason to know of the injury
which is the basis of the action.” Corn v. City of Lauderdale Lakes, 904 F.2d 585,
588 (11th Cir. 1990). The majority holds that the facts supporting Callahan’s §
1983 action were or should have been apparent to him on July 31, 2002, when the
30-day period within which he could choose electrocution as his means of
execution expired. I believe that this conclusion misconstrues the nature of the
injury that Callahan seeks to enjoin. Callahan’s § 1983 action is not based on the
fact of his death sentence or even on the fact that he is to be executed by lethal
injection. Rather, Callahan is asserting that the specific lethal injection protocol
presently employed by Alabama is likely to cause him undue pain and suffering
when his execution is carried out. This claim could have begun to accrue only (1)
when Callahan knew or had reason to know the details of Alabama’s lethal
injection protocol and (2) when his execution became imminent.
Contrary to the majority’s conclusion, neither of these circumstances existed
in July of 2002. Although Alabama adopted lethal injection as its sole method of
execution at that time, its specific protocol is neither fixed by law nor readily
accessible. The protocol is a creature of regulation, not statute, and thus it is
subject to change at any time by the Alabama Department of Corrections. As is
the case in other states, “[n]o statutory framework determines when or how such
changes may occur. Nor is there a framework governing when, or even if, such
changes will be publicized.” Cooey v. Strickland, 479 F.3d 412, 427 (6th Cir.
2007) (Gilman, J., dissenting). Indeed, it appears that Alabama has revised the
protocol on a number of previous occasions, and there is reason to believe that its
efforts to promulgate these changes have been inadequate. See Jones v. Allen, 483
1 Alabama most recently revised its lethal injection protocol on October 26, 2007.
F. Supp. 2d 1142, 1146 n.2 (M.D. Ala. 2007) (noting that Alabama defendants
“admitted that earlier revisions to the protocol were made . . . but that after diligent
search they [were] unable to locate the version of the protocol that existed before
such changes were made”). Adding to this uncertainty, the State of Alabama
keeps the specifics of its lethal injection protocol a secret. Siebert v. Allen, 2007
WL 3047086, at *1 (M.D. Ala. Oct. 17, 2007). I thus cannot accept the majority’s
conclusion that Callahan’s cause of action began to accrue five years before his
execution date was set, during which time Alabama could, and in fact did, amend
its lethal injection protocol.1
A better approach would be to fix the date of accrual when Callahan knew
or had reason to know the details of the protocol to be used in his execution and
when his habeas challenge to his sentence was exhausted. Placing the accrual date
after the completion of habeas proceedings would have “provide[d] clarity and
certainty to both the death-sentenced inmate and the State that the sentence [was]
final and not susceptible to attack, that the execution date [was] set, and that the
protocol for [the] execution [was] likely fixed.” Cooey, 479 F.3d at 429 (Gilman,
J., dissenting). Moreover, in future cases, this approach would avoid the
problematic outcomes that the majority’s decision will produce: that death2
It is noteworthy that in Jones v. Allen, 483 F. Supp. 2d 1142 (M.D. Ala. 2007), the
court recognized that according to general tort principles, “‘the statute [of limitations] does not
usually begin to run until the tort is complete,’” and a “‘tort is ordinarily not complete until there
has been an invasion of a legally protected interest of the plaintiff.’” Id. at 1148 (alterations in
original) (quoting Rest. 2d Torts § 899 cmt. c). As such, where a defendant challenges the
constitutionality of an event that has not yet occurred, i.e., the method of execution, the statute of
limitations inquiry is not applicable; rather, only equitable considerations (such as those
associated with comity, finality, federalism, and laches) are relevant. Id. at 1149-51.
sentenced prisoners will be required to pursue method-of-execution challenges
several years prior to their executions and during the same time they are
challenging their convictions and sentences on habeas.2
Finally, the majority expresses the concern that placing the accrual date
after the completion of habeas proceedings would enable prisoners to “veto” the
state’s ability to effectuate its judgments by unreasonably delaying their § 1983
actions. However, the Supreme Court has recognized that prisoners seeking stays
of execution must establish a significant likelihood of success on the merits,
including overcoming a presumption against entry of a stay where the claim could
have been brought earlier. Nelson v. Campbell, 541 U.S. 637, 650, 124 S. Ct.
2117, 158 L. Ed. 2d 924 (2004). In my view, therefore, the majority’s concern in
this regard is unpersuasive.
For these reasons, I respectfully dissent.