Hill v. Hopper

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 97-6306.

Walter HILL, Plaintiff-Appellant,

v.

Joe S. HOPPER, Commissioner of Alabama Department of Corrections, Defendant-Appellee.

April 17, 1997.

Appeal from the United States District Court for the Middle District of Alabama. (No. 97-T-476-N), Myron H. Thompson, Chief Judge.

Before HATCHETT, Chief Judge, and COX and BLACK, Circuit Judges.

PER CURIAM:

Appellant Walter Hill, an Alabama inmate convicted of capital

murder and sentenced to death, challenges on appeal the district

court's dismissal of his 42 U.S.C. § 1983 assault upon the

constitutionality of electrocution as a means of execution. The

State of Alabama intends to execute Hill by means of electrocution

on May 2, 1997. On March 31, 1997, Appellant Hill filed a

complaint in the United States District Court for the Middle

District of Alabama charging that the scheduled electrocution

constitutes cruel and unusual punishment in violation of the Eighth

and Fourteenth Amendments. Among other relief, the complaint

sought to enjoin Appellee Joe S. Hopper from employing

electrocution to carry out Hill's death sentence. By order dated

April 10, 1997, the district court dismissed the complaint as an

improper successive habeas petition. We affirm.

In Felker v. Turpin, 101 F.3d 95, 96 (11th Cir.), cert.

denied, --- U.S. ----, 117 S.Ct. 450, 136 L.Ed.2d 345 (1996), we held that a prisoner may not circumvent the rules regarding second

or successive habeas petitions by filing a § 1983 claim. Appellant

Hill acknowledges that he has filed a previous federal habeas

petition. See Hill v. Jones, 81 F.3d 1015 (11th Cir.), reh'g and

suggestion for reh'g en banc denied, 92 F.3d 1202 (11th Cir.1996),

cert. denied, --- U.S. ----, 117 S.Ct. 967, 136 L.Ed.2d 851 (1997).

As Hill's § 1983 cruel and unusual punishment claim constitutes the

"functional equivalent" of a second habeas petition, the district

court was subject to the law applicable to successive habeas

petitions. Felker, 101 F.3d at 96. Under 28 U.S.C. §

2244(b)(3)(A), the district court lacked jurisdiction to consider

Appellant Hill's request for relief because Hill had not applied to

this Court for permission to file a second habeas petition.

AFFIRMED.