IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
WILLIE MCNAIR, )
v. ) Case No. 2:06-cv-695-WKW
RICHARD ALLEN, et al., ))
JAMES CALLAHAN, ))
v. ) Case No. 2:06-cv-919-WKW
RICHARD ALLEN, et al., ))
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff James Callahan’s Motion for Stay of Execution (Doc.
# 147). The motion was precipitated by the Alabama Supreme Court’s October 31, 2007
order setting Callahan’s execution date. If the motion is not granted, Callahan will be
executed by the State of Alabama on January 31, 2008. For the reasons stated herein, the
motion is due to be granted.
I. PROCEDURAL HISTORY
Although the November 16, 2007 opinion (Doc. # 146) outlines the procedural history
of this case, some of the relevant dates are highlighted here. The trial in this matter was
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1 The questions presented in Baze include the correct standard by which the constitutionality of
methods of execution should be adjudged and whether Kentucky’s three-drug protocol, which is similar
to Alabama’s lethal injection protocol at issue here, violates that standard.
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).1 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 challenges to lethal
On October 26, 2007, the defendants filed a revised lethal injection protocol. Five
days later, on October 31, 2007, the Alabama Supreme Court set Callahan’s execution date
for January 31, 2008. After holding a status conference with the parties, the trial was
continued generally in anticipation of additional limited discovery and the filing of the instant
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The Eleventh Cir 2 cuit has adopted all prior decisions of the former Fifth Circuit handed down
prior to the close of business on September 30, 1981, as binding precedent. Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
motion. The motion is fully briefed and ripe for adjudication.
II. LEGAL STANDARD
The grant or denial of a stay or preliminary injunction is within the discretion of the
district court. Canal Auth. of State of Fla. v. Callaway, 489 F.2d 567 (5th Cir. 1974).2 In
deciding whether to grant a stay of execution, courts analyze the familiar four factors
involved in injunctive relief consideration:
(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-movant; and (4) whether the requested action would serve
the public interest.
Rutherford v. McDonough, 466 F.3d 970, 979 (11th Cir. 2006) (Rutherford II) (Wilson, J.,
dissenting); see also Hill v. McDonough, __ U.S. __, 126 S. Ct. 2096, 2104 (2006) (“[L]ike
other stay applications, inmates seeking time to challenge the manner in which the State
plans to execute them must satisfy all of the requirements for a stay, including a showing of
a significant possibility of success on the merits.”); Fed. R. Civ. P. 65. In evaluating the
harm that a stay would inflict upon the defendants, courts must consider whether the plaintiff
unnecessarily delayed in bringing the claim. See Nelson v. Campbell, 541 U.S. 637, 649-50
(2006). The movant must clearly carry the burden of persuasion in order for the court to
apply the remedy. See Hill, 126 S. Ct. at 2104; Callaway, 489 F.2d at 573.
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3 Thus, the strong equitable presumption against a stay does not come into play here where the
claim was brought with sufficient time to allow consideration of the merits without requiring the entry of
a stay. Cf. Nelson, 541 U.S. at 650.
4 Schwab v. Sec’y, Dep’t of Corrections, __ F.3d __, No. 07-15329, 2007 WL 3375242 (11th
Cir. Nov. 15, 2007).
This case is unusual in the stay-of-execution context. It has been pending for over a
year, and the court has determined that the plaintiffs did not unreasonably delay in bringing
suit.3 (Doc. # 146, at 8.) The court and the parties were ready for the trial that was scheduled
to begin on October 3, 2007. Callahan has only recently received an execution date;
McNair’s execution date has not been set. A stay of execution is an “extraordinary and
drastic remedy,” but its “primary justification . . . is to preserve the court’s ability to render
a meaningful decision on the merits.” Callaway, 489 F.2d at 573. Indeed, in timely-filed
challenges to the lethal injection protocol, it has been this court’s primary concern that
resolution of questions of such moral magnitude proceed in a deliberate and orderly fashion
in order to reach a meaningful decision on the merits. The higher courts have cautioned
against allowing speculative and untimely method-of-execution suits; however, this one is
neither speculative nor untimely.
Callahan urges the court to follow the United States Supreme Court’s lead in staying
the case pending the opinion in Baze, whereas the defendants insist that the Eleventh
Circuit’s Schwab opinion4 requires the court to ignore the implications and aftermath of the
Supreme Court’s grant of certiorari in Baze. The grant of certiorari does not mandate a stay
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This is particularly true where this case is distinguishable 5 from Schwab. Callahan’s motion is
not an emergency filing; Callahan has not had the benefit of extensive state court hearings establishing a
factual record; Callahan did not wait until two days before his execution to file his case; Callahan’s claim
is not barred by laches; and the Alabama protocol is different than Florida’s in several material respects.
Even if the facts of this case were more similar to those in Schwab, the Eleventh Circuit vacated
the stay of execution entered by the trial court in Schwab because it was “simply wrong” to grant a stay
solely on the basis of the grant of certiorari in Baze. Schwab, 2007 WL 3375242, at *1. In the instant
case, a stay of execution is warranted because Callahan has carried his burden of persuasion on the
motion for a stay. It does not go unnoticed, though, that the Supreme Court granted stays of execution to
Schwab and, more recently, to Thomas Arthur, pending decisions on those petitions for writ of
certiorari. See Arthur v. Allen, __ U.S. __, No. 07-395, 2007 WL 4248619 (Dec. 5, 2007) (mem.);
Schwab v. Florida, __ U.S. __, No. 07A383, 2007 WL 3380059 (Nov. 15, 2007) (mem.).
in similar cases and “does not suggest a view on the merits,” Schwab, 2007 WL 3375242,
at *1, *3, but neither does Schwab require a denial of stay of execution.5 The Eleventh
Circuit did not venture a guess at the Supreme Court’s motivation for staying Baze-type
cases, id. at *3, but the Supreme Court’s motivation may have something to do with
protecting the status quo until it can render meaningful decisions on the merits of those cases.
At bottom, any decision on the merits made by this court - whether it be a pre-trial
assessment of the likelihood of success on the merits or the ultimate ruling after full trial -
may not be meaningful without the benefit of the Supreme Court’s ruling in Baze.
Nevertheless, the court is charged with assessing the likelihood of success on the merits, and
this it will do.
A. Likelihood of Success on the Merits
Assessing the likelihood of success on the merits is problematic in light of the current
national debate in the courts over a standard by which the constitutionality of three-drug
protocols should be adjudged. The parties are at odds with the respect to the proper standard.
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6 By stating there is a “substantial likelihood,” the court also means there is a “significant
possibility” of success on the merits. Although the requirement of “likelihood” of success on the merits
has been cast in terms of “substantial likelihood” and “significant possibility,” the Eleventh Circuit has
recognized that such qualifiers do not alter the quantum of proof necessary to satisfy this requirement.
See Shatel Corp. v. Mao Ta Lumber & Yacht Corp., 697 F.2d 1352, 1356 n.2 (11th Cir. 1983).
Moreover, “significant possibility” is a relatively new phrase that the United States Supreme Court used
in Hill - but in a different context; by citing to Barefoot v. Estelle, 463 U.S. 880, 895-896 (1983), the
Court made clear that it was setting the standard for a stay of execution pending the filing and
consideration of a petition for a writ of certiorari from the Supreme Court to the Courts of Appeal. See
Hill, 126 S. Ct. at 2104.
Callahan argues that the applicable standard in a method-of-execution challenge is a purely
objective one. Defendants argue that the plaintiffs must show proof of a sufficiently culpable
state of mind. There is no clear precedent, but the standard is clearly at issue in Baze.
The court concludes that there is a substantial likelihood of success on the merits.6
Meeting the likelihood of success criterion necessarily involves stating a legitimate claim.
See Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1226 (11th Cir. 2005) (affirming
district court’s determination that plaintiffs could not establish a substantial likelihood of
success on the merits because they did not state a claim) (citing Grupo Mexicano de
Desarrollo v. Alliance Bond Fund, Inc., 527 U.S. 308, 339 (1990) (“Plaintiffs with
questionable claims would not meet the likelihood of success criterion.”)). The parties do
not debate the amount of proof necessary to satisfy this requirement, and it is clear that “the
district court need not find that the evidence positively guarantees a final verdict in plaintiff’s
favor.” Levi Strauss & Co. v. Sunrise Int’l Trading Inc., 51 F.3d 982, 985 (11th Cir. 1995).
The finding of a likelihood of success on the merits is partially grounded in the claim’s
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In its 7 memorandum opinion and order dated November 16, 2007, the court denied the
defendants’ motion for summary judgment because “several issues of material fact are disputed” and
“this case presents vitally important issues that may hinge on the credibility of witnesses such that, even
if there were no factual disputes, the better course of action would be to proceed to a full trial.” (Doc.
8 Schwab, 2007 WL 3375242, at *2 (“The evidence that . . . Schwab rel[ies] on does not show
that those procedures, protocols, and drugs pose an unnecessary risk of pain.”).
survival of summary judgment.7 While the existence of genuine issues of material fact does
not guarantee ultimate success on the merits and the amount of contested evidence required
to reach the likelihood of success threshold cannot be readily quantified, surviving summary
judgment is confirmation that there is indeed a likelihood of success on the merits and that
Callahan’s claims are not merely questionable.
Other courts have employed a wide range of standards in evaluating the
constitutionality of lethal injection protocols. If the court were to apply the most restrictive
of those standards, Callahan would have difficulty demonstrating a substantial likelihood of
success on the merits. The application of other less restrictive standards, however, would
likely result in a finding that one or more aspects of the Alabama protocol are
unconstitutional (yet reparable). The court need not default to the most restrictive standard
where a substantial likelihood of success on the merits exists under some reasonable
standard. Under the “unnecessary risk of pain” standard referred to, but not analyzed or
expressly adopted, in Schwab,8 there is a substantial likelihood of success on the merits.
There is substantial but disputed evidence that Alabama’s protocol contains constitutional
deficiencies in the monitoring of the procedure, the training of certain participants, and the
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From a careful 9 review of the evidence submitted at the summary judgment stage, including the
depositions of those involved in Alabama executions, the issues associated with the second and third
drugs administered per the protocol, i.e., pancuronium bromide (Pavulon) and potassium chloride, have
risen to constitutional proportions. It is evident that the current nationwide challenge to the three-drug
protocol is derived wholly from the use of these two drugs. Absent the use of Pavulon and potassium
chloride, Callahan may not have been able to demonstrate a substantial likelihood of success on the
merits under any standard. A one-drug protocol has been the subject of much debate and is a key
consideration in the assessment of the constitutionality of Alabama’s existing protocol.
10 See Harbison v. Little, 511 F. Supp. 2d 872 (M.D. Tenn. 2007) (holding that Tennessee’s
lethal injection protocol violated Eighth Amendment); Morales v. Tilton, 465 F. Supp. 2d 972 (N.D. Cal.
2006) (holding that California’s protocol, as implemented, resulted in an Eighth Amendment violation).
11 See Lightbourne v. McCollum, __So. 2d __, No. SC06-2391, 2007 WL 3196533, at *23 (Fla.
Nov. 1, 2007) (holding that Florida’s lethal injection procedures, as actually administered, are not
constitutionally defective); Schwab v. State, __ So. 2d __, No. SC07-1603, 2007 WL 3196523 (Fla.
Nov. 1, 2007) (rejecting the conclusion that lethal injection in Florida is unconstitutional, given the
analysis in Lightbourne).
use of potentially unconstitutionally painful drugs.9 The court will assess carefully the
evidence and credibility of the witnesses to resolve these and other salient issues.
Furthermore, it is notable that three-drug lethal injection protocols similar to
Alabama’s have been found to be unconstitutional by at least two other trial courts.10 Not so
dissimilarly, one of the protocols that survived constitutional review, Florida’s protocol at
issue in Schwab, did so after having been revamped as a result of public and scientific
comment, culminating in features not found in Alabama’s protocol.11 Of course, an
evaluation of the constitutionality of this protocol, its components, and its administration will
be fact-intensive, specific to Alabama, and has not yet been decided by any court. In light
of these circumstances, the court concludes that there is a substantial likelihood of success
on the merits under at least one reasonable standard.
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12 See Doc. # 146 (“The court cannot construe the State’s delay in setting execution dates as
prejudicial to the State’s own interest and then charge such delays against the plaintiffs. Delay at the
hands of the Alabama Supreme Court might indeed be construed as beneficial to the interests of the State
in allowing - for the first time - an orderly consideration of the lethal injection protocol.”). Moreover, the
setting of Callahan’s execution date at such a late date in this litigation could be construed as interference
with this court’s jurisdiction. Under the circumstances of this case, the All Writs Act, 28 U.S.C.
§ 1651(a), grants this court additional authority to stay the execution pending a trial on the merits.
B. Balancing the Harms
The remaining criteria of the stay analysis require the court to weigh the competing
harms. Because of the nature of the case, a possibility of success on the merits also points
to irreparable injury without a stay. That is, an unconstitutional execution would impair the
court’s ability to grant an effective remedy. Undoubtedly, the State has a strong interest in
the timely enforcement of a criminal sentence. Hill, 126 S. Ct. at 2104. However, the State
itself jeopardized the timely enforcement of the sentence by delaying for seven months its
request for Callahan’s execution date and another five months in setting it.12 Moreover, the
effect of a stay on the public interest cuts both ways - the public has an interest both in the
carrying out of death sentences in a constitutional manner and in the finality of criminal
judgments. But because the defendants would not claim a legitimate interest in an
unconstitutional execution, the public interest will be better served by a resolution of the
constitutional challenge. In balancing these harms, the court finds that threatened irreparable
injury to Callahan outweighs the harm a stay of execution would work on the defendants or
the public interest.
Because, presumably, the United States Supreme Court will announce the proper
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13 A district court retains the inherent authority to manage its own docket. See Four Seasons
Hotels & Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1172 n.7 (11th Cir. 2004).
standard or standards shortly, the court is reluctant to try this case on an assumed standard.
There is a significant likelihood that such action would be a waste of judicial resources and
those of the parties, would result in a retrial, and would further delay the enforcement of
Alabama’s criminal judgments.13 Any decision on the merits would be in doubt pending a
ruling in Baze. For this reason, and because Callahan has carried his burden of persuasion,
a stay must be granted in order for the court to reach a meaningful resolution of the issues.
Accordingly, it is ORDERED that Callahan’s Motion for Stay of Execution (Doc.
# 147) is GRANTED. Callahan’s execution date is hereby STAYED pending a trial on the
merits to be scheduled by further order of the court.
DONE this 14th day of December, 2007.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE
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