Getsy v. Strickland

577 F.3d 309, 2009 U.S. App. LEXIS 18125, 2009 WL 2475165
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 13, 2009
Docket08-4199
StatusPublished
Cited by16 cases

This text of 577 F.3d 309 (Getsy v. Strickland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Getsy v. Strickland, 577 F.3d 309, 2009 U.S. App. LEXIS 18125, 2009 WL 2475165 (6th Cir. 2009).

Opinions

OPINION

RONALD LEE GILMAN, Circuit Judge.

Jason Getsy was convicted of aggravated murder and sentenced to death in 1996. In 2007, he filed an intervenor complaint in a lawsuit brought under 42 U.S.C. § 1983 by fellow inmate Richard Cooey that challenged Ohio’s lethal-injection protocol. After this court concluded that Cooey’s challenge was time barred, see Cooey v. Strickland, 479 F.3d 412 (6th Cir.2007) (Cooey II), the district court dismissed Getsy’s complaint on the same ground. For the reasons set forth below, we AFFIRM the judgment of the district court.

I.

Cooey II’s central holding is that the two-year statute of limitations for a § 1983 lawsuit challenging Ohio’s lethal-injection protocol begins to accrue on the latest of the following possible dates: (1) “upon conclusion of direct review in the state court or the expiration of time for seeking such review,” or (2) in 2001, when Ohio adopted lethal injection as the sole method of execution. Cooey II, 479 F.3d at 422. With reference to the first of the alternative dates, the “conclusion of direct review” occurs when, after the state supreme court has affirmed the defendant’s conviction and sentence on direct appeal, the United States Supreme Court denies [311]*311the inmate’s petition for a writ of certiorari. Id. (explaining that the conclusion of direct review occurs when the “United States Supreme Court denied direct review”).

In this case, after the Supreme Court of Ohio affirmed Getsy’s conviction and sentence, the United States Supreme Court denied Getsy’s petition for a writ of certiorari in 1999. Getsy v. Ohio, 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999). This means that, under Cooey II, Getsy’s two-year statute of limitations began to accrue in 2001, when Ohio adopted lethal injection as its exclusive method of execution. But Getsy’s complaint was not filed until May 2007, several years after the two-year time frame had already elapsed. We therefore conclude that Getsy’s constitutional challenge to the Ohio’s lethal-injection protocol should be dismissed as untimely pursuant to Cooey II.

Despite this reasoning, Getsy maintains that Cooey II does not bar his claim. He argues that Cooey II is distinguishable because (1) Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), created a new constitutional right that Getsy was previously unable to invoke, (2) Ohio modified its lethal-injection protocol on May 14, 2009, and (3) a panel of this court vacated his death sentence (even though an en banc decision of this court later reinstated the sentence). Getsy also argues that Cooey II was wrongly decided. We will address each of these points in turn.

II.

Getsy first argues that the Supreme Court’s decision in Baze v. Rees, — U.S. -, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008), reset the statute-of-limitations period for Getsy because the case purportedly represents the first time that the Supreme Court explicitly recognized the right to challenge lethal-injection protocols under the Eighth Amendment. His basic contention is that Baze created a previously unrecognized constitutional right, so that Getsy could not possibly have been on notice to vindicate that right before the decision was issued. See Trzebuckowski v. City of Cleveland, 319 F.3d 853, 856 (6th Cir.2003) (“In determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.”).

Getsy’s argument is unpersuasive. Baze did not, in our view, create a new Eighth Amendment right. The Supreme Court has long recognized the right to challenge execution methods under the Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 170, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (“In the earliest cases raising Eighth Amendment claims, the Court focused on particular methods of execution to determine whether they were too cruel to pass constitutional muster.”) The Supreme Court has also recognized, more than 100 years before Baze was decided, that inmates have the right to challenge death-penalty practices that might cause undue suffering. In re Kemmler, 136 U.S. 436, 447, 10 S.Ct. 930, 34 L.Ed. 519 (1890) (“Punishments are cruel when they involve torture or a lingering death.... ”). Because we do not believe that Baze created a new constitutional right, Getsy’s attempt to avoid the statute of limitations on that basis is without merit.

Nor were constitutional challenges to specific lethal-injection protocols unprecedented before Baze. As early as 1997, at least one federal district court recognized the possibility of bringing such a claim. See Walker v. Epps, 550 F.3d 407, 416 (5th Cir.2008) (holding that Baze did not reset the date of accrual, in part because “as early as 1997 the United States District [312]*312Court for the Southern District of Mississippi recognized that inmates could challenge Mississippi’s lethal injection protocol in a § 1983 suit”). The notion that, prior to Baze, protocol challenges were unavailable as a matter of law is thus demonstrably false.

So if Baze did not create a new constitutional right, what precisely did Baze accomplish? The answer, we believe, is that Baze clarified the standards that should apply to the merits of Eighth Amendment protocol challenges. Justice Thomas acknowledged that Baze simply created a new “formulation of the governing standard ” rather than an entirely new right. See Baze, 128 S.Ct. at 1556 (Thomas, J., concurring in the judgment) (emphasis added).

This raises the question of whether Baze’s freshly clarified standards trigger a new accrual date. We do not believe that they do. As previously noted, “[i]n determining when the cause of action accrues in § 1983 cases, we look to the event that should have alerted the typical lay person to protect his or her rights.” Trzebuckowski, 319 F.3d at 856 (emphasis added). Cooey II held, rightly or wrongly, that the relevant event is the later of either (1) the “conclusion of direct review in the state court or the expiration of time for seeking such review,” or (2) the year 2001, when Ohio adopted lethal injection as the sole method of execution. Cooey II, 479 F.3d at 422. Nothing in Baze gives us cause to question Cooey II’s determination of when the statute-of-limitations clock begins to tick.

In this case, Getsy’s constitutional claim is focused solely on Ohio’s particular application of the lethal-injection method of execution. He contends that someone on the execution team might make a mistake in administering the drug cocktail and that he might suffer a painful death akin to torture as a result.

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Getsy v. Strickland
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Cite This Page — Counsel Stack

Bluebook (online)
577 F.3d 309, 2009 U.S. App. LEXIS 18125, 2009 WL 2475165, Counsel Stack Legal Research, https://law.counselstack.com/opinion/getsy-v-strickland-ca6-2009.