United States Court of Appeals,
Eleventh Circuit.
No. 96-9334.
Ellis Wayne FELKER, Larry Grant Lonchar, Plaintiffs-Appellants,
v.
Tony TURPIN, Wayne Garner, John Doe, Defendants-Appellees.
Nov. 13, 1996.
Appeal from the United States District Court for the Middle District of Georgia. (No. 5:96-CV-425-4(DF), Duross Fitzpatrick, Chief Judge.
Before TJOFLAT, COX and DUBINA, Circuit Judges.
PER CURIAM:
Ellis Wayne Felker and Larry Grant Lonchar (collectively
"Plaintiffs") are Georgia inmates under sentence of death. On
November 8, 1996, less than one week prior to their scheduled
executions, they filed a 42 U.S.C. § 1983 action in the Middle
District of Georgia. In their complaint, they alleged that
Georgia's use of electrocution to carry out a death sentence
constitutes cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. They requested declaratory and
injunctive relief. Following review of arguments and affidavits,
the district court issued an order denying their request for a
preliminary injunction and declaratory relief, concluding that they
had no chance of success on the merits. The court then entered
final judgment denying relief. Plaintiffs now appeal.
Plaintiffs have filed a motion for expedited oral argument and
review. The request that review be expedited is GRANTED. The
request for oral argument is DENIED. We now address the merits of Plaintiffs' appeal, which presents a single issue: whether the
district court erred as a matter of law in denying relief on their
Eighth Amendment claim.
I. RELEVANT PROCEDURAL HISTORY
Prior to filing their § 1983 complaint, Plaintiffs filed
separate 28 U.S.C. § 2254 petitions for writs of habeas corpus in
the Middle District of Georgia. In Lonchar's petition, Lonchar
challenged, among other things, the constitutionality of Georgia's
method of execution. Upon Lonchar's motion, the district court
dismissed the petition with prejudice. In Felker's petition,
Felker challenged the constitutionality of his conviction and
sentence, but did not challenge Georgia's method of execution. In
1995, we affirmed denial of that petition. See Felker v. Thomas,
52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62
F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
956, 133 L.Ed.2d 879 (1996).
II. DISCUSSION
A. § 1983 CLAIM SUBJECT TO SECOND OR SUCCESSIVE HABEAS RULES
Guided by Gomez v. United States District Court, 503 U.S.
653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), as interpreted by
Lonchar v. Thomas, --- U.S. ----, ----, 116 S.Ct. 1293, 1301, 134
L.Ed.2d 440 (1996), we conclude that Plaintiffs' § 1983 claim is
subject to the procedural requirements for bringing a second or
successive habeas claim.
In Gomez, the Court refused to consider the merits of a
plaintiff's cruel and unusual punishment claim brought under § 1983
where the plaintiff did not raise that claim in his earlier habeas petitions. According to the Court, habeas rules would apply, even "
if § 1983[was] also a proper vehicle for his "method of execution'
claim...." Lonchar, --- U.S. at ----, 116 S.Ct. at 1301
(interpreting Gomez ). In other words, Gomez held that a plaintiff
cannot escape the rules regarding second or successive habeas
petitions by simply filing a § 1983 claim.
We treat Plaintiffs' § 1983 cruel and unusual punishment claim
as the functional equivalent of a second habeas petition, see
Gomez, 503 U.S. at 653-54, 112 S.Ct. at 1653 (1992), and apply the
rules regulating second or successive habeas petitions.1 Because
Plaintiffs failed to apply for permission to file a second habeas
petition as required by 28 U.S.C. § 2244(b)(3)(A), as amended by
the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.
No. 104-132, tit. I (1996), the district court was without
authority to consider their request for relief.
Moreover, the facts alleged do not show that Felker could
meet the § 2244(b)(2) requirements for filing a second or
successive petition. Specifically, his cruel and unusual
punishment claim neither "relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable;" nor has a "factual
predicate [that] could not have been discovered previously through
the exercise of due diligence...." See 28 U.S.C. § 2244(b)(2).
Therefore, we would have denied any application for permission to
1 In light of Gomez, we decline to follow Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir.1983), to the extent that it can be read to imply that a petitioner may bring a cruel and unusual punishment claim under § 1983 without being subject to the procedural rules governing second or successive petitions. file a second habeas petition made by Felker.
Lonchar could not present his claim in a second habeas
petition because he presented the exact same claim in his previous
federal habeas petition. "A claim presented in a second or
successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed." 28 U.S.C. §
2244(b)(1).
B. § 1983 CLAIM AS DISTINCT FROM SECOND OR SUCCESSIVE HABEAS PETITION
Even if we were to assume that Plaintiffs' action was properly
brought under § 1983 and not subject to habeas procedural
requirements, we would conclude the district court properly denied
Plaintiffs' claim for relief.
In light of overwhelming precedent, we conclude there is no
merit in Plaintiffs' claim that death by electrocution constitutes
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. See In re Kemmler, 136 U.S. 436, 443-44, 10
S.Ct. 930, 932, 34 L.Ed. 519 (1890); Porter v. Wainwright, 805
F.2d 930, 943 n. 15 (11th Cir.1986); Funchess v. Wainwright, 788
F.2d 1443, 1446 (11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct.
1668, 90 L.Ed.2d 209 (1986); Sullivan v. Dugger, 721 F.2d 719, 720
(11th Cir.1983); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th
Cir.1978). Moreover, their contention in the district court that
"there has never been an evidentiary hearing on the effects of
execution by electrocution since the first capital defendant was
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United States Court of Appeals,
Eleventh Circuit.
No. 96-9334.
Ellis Wayne FELKER, Larry Grant Lonchar, Plaintiffs-Appellants,
v.
Tony TURPIN, Wayne Garner, John Doe, Defendants-Appellees.
Nov. 13, 1996.
Appeal from the United States District Court for the Middle District of Georgia. (No. 5:96-CV-425-4(DF), Duross Fitzpatrick, Chief Judge.
Before TJOFLAT, COX and DUBINA, Circuit Judges.
PER CURIAM:
Ellis Wayne Felker and Larry Grant Lonchar (collectively
"Plaintiffs") are Georgia inmates under sentence of death. On
November 8, 1996, less than one week prior to their scheduled
executions, they filed a 42 U.S.C. § 1983 action in the Middle
District of Georgia. In their complaint, they alleged that
Georgia's use of electrocution to carry out a death sentence
constitutes cruel and unusual punishment in violation of the Eighth
and Fourteenth Amendments. They requested declaratory and
injunctive relief. Following review of arguments and affidavits,
the district court issued an order denying their request for a
preliminary injunction and declaratory relief, concluding that they
had no chance of success on the merits. The court then entered
final judgment denying relief. Plaintiffs now appeal.
Plaintiffs have filed a motion for expedited oral argument and
review. The request that review be expedited is GRANTED. The
request for oral argument is DENIED. We now address the merits of Plaintiffs' appeal, which presents a single issue: whether the
district court erred as a matter of law in denying relief on their
Eighth Amendment claim.
I. RELEVANT PROCEDURAL HISTORY
Prior to filing their § 1983 complaint, Plaintiffs filed
separate 28 U.S.C. § 2254 petitions for writs of habeas corpus in
the Middle District of Georgia. In Lonchar's petition, Lonchar
challenged, among other things, the constitutionality of Georgia's
method of execution. Upon Lonchar's motion, the district court
dismissed the petition with prejudice. In Felker's petition,
Felker challenged the constitutionality of his conviction and
sentence, but did not challenge Georgia's method of execution. In
1995, we affirmed denial of that petition. See Felker v. Thomas,
52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62
F.3d 342 (11th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct.
956, 133 L.Ed.2d 879 (1996).
II. DISCUSSION
A. § 1983 CLAIM SUBJECT TO SECOND OR SUCCESSIVE HABEAS RULES
Guided by Gomez v. United States District Court, 503 U.S.
653, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992), as interpreted by
Lonchar v. Thomas, --- U.S. ----, ----, 116 S.Ct. 1293, 1301, 134
L.Ed.2d 440 (1996), we conclude that Plaintiffs' § 1983 claim is
subject to the procedural requirements for bringing a second or
successive habeas claim.
In Gomez, the Court refused to consider the merits of a
plaintiff's cruel and unusual punishment claim brought under § 1983
where the plaintiff did not raise that claim in his earlier habeas petitions. According to the Court, habeas rules would apply, even "
if § 1983[was] also a proper vehicle for his "method of execution'
claim...." Lonchar, --- U.S. at ----, 116 S.Ct. at 1301
(interpreting Gomez ). In other words, Gomez held that a plaintiff
cannot escape the rules regarding second or successive habeas
petitions by simply filing a § 1983 claim.
We treat Plaintiffs' § 1983 cruel and unusual punishment claim
as the functional equivalent of a second habeas petition, see
Gomez, 503 U.S. at 653-54, 112 S.Ct. at 1653 (1992), and apply the
rules regulating second or successive habeas petitions.1 Because
Plaintiffs failed to apply for permission to file a second habeas
petition as required by 28 U.S.C. § 2244(b)(3)(A), as amended by
the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L.
No. 104-132, tit. I (1996), the district court was without
authority to consider their request for relief.
Moreover, the facts alleged do not show that Felker could
meet the § 2244(b)(2) requirements for filing a second or
successive petition. Specifically, his cruel and unusual
punishment claim neither "relies on a new rule of constitutional
law, made retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable;" nor has a "factual
predicate [that] could not have been discovered previously through
the exercise of due diligence...." See 28 U.S.C. § 2244(b)(2).
Therefore, we would have denied any application for permission to
1 In light of Gomez, we decline to follow Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir.1983), to the extent that it can be read to imply that a petitioner may bring a cruel and unusual punishment claim under § 1983 without being subject to the procedural rules governing second or successive petitions. file a second habeas petition made by Felker.
Lonchar could not present his claim in a second habeas
petition because he presented the exact same claim in his previous
federal habeas petition. "A claim presented in a second or
successive habeas corpus application under section 2254 that was
presented in a prior application shall be dismissed." 28 U.S.C. §
2244(b)(1).
B. § 1983 CLAIM AS DISTINCT FROM SECOND OR SUCCESSIVE HABEAS PETITION
Even if we were to assume that Plaintiffs' action was properly
brought under § 1983 and not subject to habeas procedural
requirements, we would conclude the district court properly denied
Plaintiffs' claim for relief.
In light of overwhelming precedent, we conclude there is no
merit in Plaintiffs' claim that death by electrocution constitutes
cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments. See In re Kemmler, 136 U.S. 436, 443-44, 10
S.Ct. 930, 932, 34 L.Ed. 519 (1890); Porter v. Wainwright, 805
F.2d 930, 943 n. 15 (11th Cir.1986); Funchess v. Wainwright, 788
F.2d 1443, 1446 (11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct.
1668, 90 L.Ed.2d 209 (1986); Sullivan v. Dugger, 721 F.2d 719, 720
(11th Cir.1983); Spinkellink v. Wainwright, 578 F.2d 582, 616 (5th
Cir.1978). Moreover, their contention in the district court that
"there has never been an evidentiary hearing on the effects of
execution by electrocution since the first capital defendant was
killed under this method," Memorandum of Law in Support of
Application for Preliminary Injunction and Complaint for
Declaratory and Injunctive Relief Pursuant to 42 U.S.C. § 1983 at 6, is simply untrue. See e.g. Sawyer v. Whitley, 772 F.Supp. 297,
307 (E.D.La.1991)(considering expert evidence before rejecting
Eighth Amendment claim regarding death by electrocution); Thomas
v. Jones, 742 F.Supp. 598, 606-608 (S.D.Ala.1990)(same); Buenoano
v. Dugger, No. 90-473-CIV-ORL-19, unpublished at 31-35, 1990 WL
119637 (M.D.Fla. June 22, 1990)(same); Ritter v. Smith, 568
F.Supp. 1499, 1525 (S.D.Ala.1983)(same), aff'd in part and rev'd in
part on other grounds, 726 F.2d 1505, 1519 (11th Cir.), and cert.
denied, 469 U.S. 869, 105 S.Ct. 218, 83 L.Ed.2d 148 (1984).
Furthermore, Lonchar's claim is barred because of the
doctrine of issue preclusion. Under that doctrine, Lonchar is
precluded from asserting a § 1983 claim that Georgia's use of
electrocution to carry out a death sentence is unconstitutional
because he raised that issue in his prior federal habeas petition.
See Quarles v. Sager, 687 F.2d 344, 346 (11th Cir.1982)(discussing
preclusive effect that federal habeas petition could have on a §
1983 claim); Hawkins v. Risley, 984 F.2d 321, 323 (9th
Cir.1993)("[A] prior federal habeas decision may have preclusive
effect in a § 1983 action [even though the converse is not
true].").
III. CONCLUSION
Whether analyzed as a § 2254 claim or a § 1983 claim,
Plaintiffs' claim for relief fails for the above reasons.
Therefore, the judgment of the district court is affirmed.
AFFIRMED.