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.