Thursday, 24 July 2008

11 circuit order in Thomas Arthur

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C{erR's Office 56 :Forsyth St., NW .Jtt{anta, §.Jt 30303
FAX TRANSMITTAL COVER SHEET
TO: Suhana Han
FROM: Marcus Simmons
EMERGENCY CAPITAL CASE- EXECUTION SCHEDULED 7/31/08
DOCUMENT DESCRIPTION: Court's order in appeal case #07-15877-P Thomas D. Arthur v. Alabama Dept. Corrections
TOTAL NUMBER OF PAGES (including this page): 1
CONTACT PERSON: ____________
PHONE NUMBER: (404) 335-6200
COMMENTS: Please let me know if! can be of further assistance.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT'---~F;:U'l";;ED;::---U.S. COURT OF APPEALS ElEVENTH CIRCUIT
JUL 23 200B
No.07-15877-P
THOMAS D. ARTHUR.
THOMAS K. KAHN CLERK
Plaintiff-Appellant,
versus
ALABAMA DEPARTMENT OF CORRECTIONS, RICHARD ALLEN, HOLMAN CORRECTIONAL FACILITY, GRANTT CULLlVER,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of Alabama
Before BIRCH, BLACK and BARKETT, Circuit Judges.
BY THE COURT:
Plaintiff-appellant Thomas D. Arthur seeks a stay of his execution which is
currently scheduled for Thursday, 31 July 2008, pending his appeal of the district
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court's dismissal of his complaint, filed pursuant to 42 V.S.C. § 1983, which
challenged Alabama's lethal injection protocol. The district court dismissed
Arthur's complaint in November 2007 because he unreasonably delayed
challenging the constitutionality of the protocol. At that time, Arthur's execution
was set for 6 December 2007.
On 5 December 2007, Arthur was granted a stay of execution by the
Supreme Court pending his petition for writ of certiorari in a prior appeal, Arthur
v. Allen, 248 Fed. Appx. 128 (lIth Cir. 2007). In that case, we affirmed the
district court's dismissal of Arthur's § 1983 challenge of Alabama's lethal injection
protocol. Id. We held that the district court did not abuse its discretion in
dismissing the action due to laches because /I []there was no justification for
Arthur's failure to bring his lethal injection challenge earlier to allow sufficient
time for full adjudication on the merits of this claim." Id. at 132-33. Following
the issuance ofBaze v. Rees, _ U.S. _,128 S. Ct. 1520 (2008) (upholding the
constitutionality of Kentucky's similar lethal injection protocol), the Supreme
Court denied Arthur's petition for writ of certiorari on 21 April 2008, Arthur v.
Allen, _ U.S. _, 128 S. Ct. 2048 (2008), and the Alabama Supreme Court set the
new execution date.
In his motion, Arthur argues that his claim regarding the constitutionality of
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Alabama's protocol was not foreclosed by the Supreme Court's decision in Baze
and is currently being litigated in McNair v. Allen, No. 2:2006 cv 00696 (M.D.
Ala. 2008). He maintains that he did not unreasonably delay seeking relief on this
claim because he raised it before his execution date was set. Arthur also contends
that he has sought and been denied access to evidence for DNA testing.
Defendants-appellees Alabama Department of Corrections, Richard Allen,
Holman Correctional Facility, and Grantt Culliver respond that Arthur has
unreasonably delayed seeking relief, failed to meet his burden for a preliminary
injunction, and that his arguments regarding DNA are merely another attempt to
relitigate this issue and are not properly before us in his appeal from the method of
execution challenge.
We rejected Arthur's argument regarding unreasonable delay in Arthur v.
Allen, 248 Fed. Appx. at 131-33, and in Arthur v. King. 500 F.3d 1335 (lIth Cir.)
(per curiam), cert. denied, _ U.S. _ , 128 S. Ct. 660 (2007), when we considered
his appeal from the district court's dismissal of his § 1983 action seeking access to
crime scene evidence for DNA testing. In Arthur v. King, Arthur also sought a
stay of execution, which, at that time, was set for September 2007 . We affirmed
the district court's dismissal and denied his motion for stay of execution, finding
that he had unreasonable and unjustifiably delayed his request to permit a full
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adjudication on the merits absent a stay. Id., 500 F.3d at 1341-42, 1344. As we
noted in Arthur v. Allen, we have previously held that "waiting until after
[Alabama has filed] a motion to set the execution date is too late to avoid the
inevitable need for a stay of execution and is too late to allow for a full
adjudication of the merits of his action." 248 Fed. Appx. at 132 (citations,
modification, and quotations omitted). We observed that" Arthur was on notice
that a challenge to Alabama's method-of-execution was available under § 1983 as
early as June 2006 . . . or August 2006." Id.
Arthur's claim that the merits of the lethal injection protocol are being
litigated in Alabama is moot. McNair was dismissed following our vacation of the
district court's grant of McNair's co-defendant's motion to stay his execution.
McNair v. Allen, No. 2:06-cv-695 (M.D. Ala. Jull1, 2008). On appeal, we held
that McNair's co-defendant's 2006 challenge was barred by the statute of
limitations which expired in 2004. McNair v. Allen, 515 F.3d 1168, 1170 (l1th Cir.), cert. denied, _ U.S. _, 128 S. Ct. 2914 (2008).
Arthur's complaint was filed on 9 October 2007, 14 days after Alabama's 25
September 2007 announcement that it would review its execution protocol. See
Document No.1 at 1,9; McNair, 515 F.3d at 1171. When the complaint was
filed, Arthur argued that Alabama's method of execution was cruel and unusual
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based on the drugs used during the procedure, the personnel performing the
procedure, and the facilities used during the procedure. Document No. I at 11-17.
Arthur believed that the protocol, which Alabama does not disclose, consisted of
sodium thiopental, pancuronium bromide, potassium chloride, and saline, and was
significantly the same as the "three-drug 'cocktail'" used in Kentucky. Id. at 4,9;
Document No. 22 at 1; McNair, 515 F .3d at 1179 (Wilson, J. dissenting). On 26
October 2007, Alabama "minimally"changed its execution protocol to add a
"consciousness assessment" and a "second dosage of sodium pentothal" if
necessary. Document No. 22 at 3; McNair, 515 F.3d at 1172 and n. 1. It does not
appear that any material changes were made to the drugs used during the
procedure, the personnel performing the procedure or the facilities used during the
procedure, which were adopted in 2002. McNair, 515 F.3d at 1171,1177 and n. 6.
For the same reasons that we rejected Arthur's motion for stay of execution
in Arthur v. Allen, Arthur's motion for stay of execution is DENIED.
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BARKETT, Circuit Judge, specially concurring in result:
I concur in the decision to deny Arthur's request for a stay of execution only
because I believe we are bound by the precedent in Baze v. Rees, _ U.S. _, 128 S.
Ct. 1520 (2008) and McNair v. Allen, 515 F.3d 1168 (I lth Cir. 2008).
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