Thursday, 31 January 2008

The stay application to USSC in Callahan












Vincent R. FitzPatrick, Jr.

Counsel of Record for James Callahan

Heather K. McDevitt

Stephanie Cohen


1 155 Avenue of the Americas

New York, New York 10036

(212) 819 - 8200

( JAN 3 0 2008



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.

-3 -

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

that motion.

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

Supreme Court.

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



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.


USSC docket for the stay application in Callahan

No. 07A630
James Callahan, Applicant
Richard F. Allen, Commissioner, Alabama Department of Corrections, et al.
Lower Ct: United States Court of Appeals for the Eleventh Circuit
Case Nos.: (08-10100)

~~~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.

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
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.

Legislation in Alabama

From Standdown blog :

Legislation in Alabama 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.

New test on lethal injection

From SCOTUS blog :

New test on lethal injection

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

The 11 circuit order lifts stay for Callahan in Alabama




Jan. 29, 2008







No. 08-10100


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

required showing.

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

of federalism.

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.