USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 1 of 17
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11393 ________________________
MICHAEL NANCE,
Plaintiff-Appellant,
versus
COMMISSIONER GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.*
BY THE COURT:
A petition for rehearing having been filed and a member of this Court in
active service having requested a poll on whether this appeal should be reheard by
* Judges Robin Rosenbaum and Jill Pryor recused themselves and did not participate in the en banc poll. USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 2 of 17
the Court sitting en banc, and a majority of the judges in active service on this
Court having voted against granting rehearing en banc, it is ORDERED that this
appeal will not be reheard en banc.
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WILLIAM PRYOR, Chief Judge, joined by NEWSOM and LAGOA, Circuit Judges, statement respecting the denial of rehearing en banc:
A majority of judges voted not to rehear this appeal en banc. As author of
the panel-majority opinion, I write to respond to my dissenting colleagues’
arguments that the panel opinion is irreconcilable with Supreme Court and circuit
precedent and that it leaves some prisoners without a remedy in federal court.
Neither charge is true.
Before I discuss the dissent’s arguments, I want to set the record straight on
a procedural matter: the panel’s resolution of this appeal on jurisdictional grounds
was not a surprise to the parties. Two weeks before oral argument, the panel
directed the parties to be prepared to address our jurisdiction. The panel explained
that “[l]ethal injection is the only method of execution authorized by Georgia law,”
and pointed out that Nance was “seek[ing] an injunction that would foreclose the
State from implementing his death sentence under its present law.” Given that
premise, the panel asked the parties whether “[Nance’s] section 1983 claim
amount[ed] to a challenge to the fact of his sentence itself that must be reconstrued
as a habeas petition,” and whether, “[i]f Nance’s claim [was] a habeas petition, . . .
it [was] second or successive[.]”
In its order to the parties, the panel framed the issue by quoting passages
from Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019) (“An inmate seeking to
identify an alternative method of execution is not limited to choosing among those 3 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 4 of 17
presently authorized by a particular State’s law. . . . [But] existing state law might
be relevant to determining the proper procedural vehicle for the inmate’s claim.”),
Hill v. McDonough, 547 U.S. 573, 582 (2006) (“If the relief sought would
foreclose execution, recharacterizing a complaint as an action for habeas corpus
might be proper.”), and Nelson v. Campbell, 541 U.S. 637, 644 (2004) (“In a State
. . . where the legislature has established lethal injection as the preferred method of
execution, a constitutional challenge seeking to permanently enjoin the use of
lethal injection may amount to a challenge to the fact of the sentence itself.”
(citation omitted)). In doing so, the panel gave Nance and his counsel a preview of
what would eventually become the majority opinion.
Nance’s counsel came to oral argument prepared, and most of the argument
was devoted to the jurisdictional issue. And Nance provided supplemental
authority on the issue one week after oral argument. The dissent suggests that that
panel did not “giv[e] the parties an adequate opportunity to prepare to address the
issue,” Dissent at 13, but neither party asked the panel to submit supplemental
briefing. Our obligation to consider subject-matter jurisdiction sua sponte may
sometimes catch parties by surprise, but it did not in this appeal.
The dissent’s justifications for rehearing Nance’s appeal en banc are
unpersuasive. The most the dissenters can say about any direct conflict between the
panel opinion and Supreme Court precedent is that “[n]one of [the Supreme
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Court’s] vaguely worded dicta [relied on by the panel opinion] is irreconcilable”
with the dissent’s preferred resolution of Nance’s appeal. Id. at 12. But even if
some other approach would not have been “irreconcilable” with the decisions of
the Supreme Court, it does not follow that the panel opinion is itself inconsistent
with Supreme Court precedent.
The dissent also suggests the panel opinion is somehow inconsistent with
what it claims the Supreme Court did not say in Bucklew. The dissent says it is
“inconceivable” that the Supreme Court would have “emphasized that a prisoner
can point to an alternative method of execution authorized in another State,” see
Bucklew, 139 S. Ct. at 1128 (“An inmate seeking to identify an alternative method
of execution is not limited to choosing among those presently authorized by a
particular State’s law.”), without pairing that substantive holding with a warning
that pleading an unauthorized method might have serious procedural implications.
Dissent at 14–15. The Supreme Court apparently found that possibility
“inconceivable” as well. Only four sentences after its substantive holding, the
Supreme Court issued the exact warning the dissent claims it did not:
[E]xisting state law might be relevant to determining the proper procedural vehicle for the inmate’s claim. . . . [I]f the relief sought in a [section] 1983 action would foreclose the State from implementing the inmate’s sentence under present law, then recharacterizing a complaint as an action for habeas corpus might be proper.
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Bucklew, 139 S. Ct. at 1128 (alteration adopted) (internal quotation marks
omitted). The panel opinion is consistent with Supreme Court precedent.
The panel opinion is also consistent with circuit precedent. The dissent
suggests that it is “well-established in our circuit that, not only can a prisoner plead
a method of execution not authorized under state law, but [section] 1983 is the
proper avenue of relief, and, as a corollary, such claims cannot be brought in
habeas.” Dissent at 13. But the opinions the dissent cites in support of its claim do
not establish any such blanket rule for method-of-execution challenges. One of the
opinions did not involve a method-of-execution challenge at all. See Hutcherson v.
Riley, 468 F.3d 750, 754 (11th Cir. 2006) (“On appeal, Hutcherson frames his
issue for review as . . . a denial of [his] rights to counsel as envisioned in the Sixth
Amendment to the United States Constitution and Due Process of Law as
envisioned in the Fifth and Fourteenth Amendments to the United States
Constitution[.]”). And the other opinions involved garden-variety challenges to
specific lethal-injection procedures that clearly did not imply the invalidity of the
entire sentence. McNabb v. Comm’r Ala. Dep’t of Corr., 727 F.3d 1334, 1344
(11th Cir. 2013) (prisoner’s claim that “an ineffective first drug or improper
administration of a first drug in a three-drug protocol would violate the
[C]onstitution” was improperly brought in a habeas petition); Tompkins v. Sec’y,
Dep’t of Corr., 557 F.3d 1257, 1259, 1261 (11th Cir. 2009) (prisoner’s claim
6 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 7 of 17
“involving lethal injection procedures” was improperly brought in a habeas
petition (emphasis added)). None of the opinions decided the proper procedural
vehicle for the type of method-of-execution challenge Nance presents, which the
Court previously and incorrectly believed was foreclosed as a matter of substantive
constitutional law. See Arthur v. Comm’r, Ala. Dep’t of Corr., 840 F.3d 1268, 1317
(11th Cir. 2016) (“[A] prisoner must identify an alternative that is ‘known and
available’ to the state in question . . . .” (emphasis added)), abrogated in part by
Bucklew, 139 S. Ct. 1112. Nance’s appeal presented an issue of first impression,
and the panel opinion does not conflict with any binding precedent.
Finally, the dissent argues that the Court should have reconsidered Nance’s
appeal en banc because the panel opinion may leave some prisoners without access
to a federal forum in which to litigate their method-of-execution challenges, which
the dissent says renders the appeal a question of exceptional importance for the full
court. Dissent at 15. But the panel opinion does not close the federal courts to
prisoners. Prisoners may allege in habeas petitions alternative methods of
execution that are unauthorized by state law. And they may bring more traditional
challenges to an execution protocol under section 1983. For example, Nance was
free to insist that Georgia modify its venous-access protocol or choice of injection
drug in his complaint under section 1983. All the panel opinion does is recognize
that Congress denies us the power—regardless of whether a petitioner alleges a
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violation of his substantive constitutional rights—to provide a forum or a remedy
for a claim in an unauthorized second or successive habeas petition. See 28 U.S.C.
§ 2244(b). Federal courts do not have jurisdiction to provide the remedy for every
right denied, and not every decision reflecting that fact is worthy of en banc
review.
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WILSON, Circuit Judge, joined by MARTIN and JORDAN, Circuit Judges,
dissenting from the denial of rehearing en banc:
Michael Nance, a Georgia death-row prisoner, sought an injunction under 42
U.S.C. § 1983 to bar the state from executing him via lethal injection, and
requested an alternate method of execution: firing squad. Nance argued that,
because of a unique medical condition, Georgia’s lethal-injection protocol will
violate his Eighth Amendment right to be free from cruel and unusual punishment.
U.S. Const. amend. VIII. Nance’s veins lack sufficient structural integrity,
meaning that medical technicians often have difficulty locating a vein from which
to draw blood. A prison medical technician told Nance that the execution team
will have to “cut his neck” to carry out lethal injection because they will not
otherwise be able to obtain sustained intravenous access. During his execution,
Nance will likely endure a prolonged and painful attempt to gain intravenous
access. Even if the execution team locates a vein, Nance’s veins will not support
an IV and there is substantial risk that his veins will lose their structural integrity
and “blow,” causing the injected chemical to leak into the surrounding tissue. This
will cause intensely painful burning and a prolonged execution that will feel like
death by suffocation.
A panel of this court held that because lethal injection is the only authorized
method of execution under Georgia law, granting Nance relief would “necessarily
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imply the invalidity of his death sentence.” Nance v. Comm’r, Ga. Dep’t of Corr.,
981 F.3d 1201, 1203 (11th Cir. 2020). Consequently, the panel concluded that
Nance’s method-of-execution claim had to be brought as a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Next, the panel determined that Nance’s
claim was barred as a second or successive habeas petition. Id.
The resolution of this case turns on whether Nance’s claim is a method-of-
execution claim cognizable under § 1983, or whether it is a habeas claim disguised
as a § 1983 claim to prevent the State from carrying out the execution at all. A
majority of the court concluded that the panel decision does not merit en banc
review. I disagree. En banc rehearing is appropriate when it is “necessary to
secure or maintain uniformity of the court’s decisions” or the case “involves a
question of exceptional importance.” Fed. R. App. P. 35(a). This case meets both
criteria. The panel’s decision disrupts intra-circuit uniformity and is irreconcilable
with Supreme Court precedent. It also leaves prisoners like Nance who are to be
executed cruelly and unusually without a remedy in federal court.
The Supreme Court held in Nelson v. Campbell that method-of-execution
claims, like this one, are to be brought under § 1983. 541 U.S. 637 (2004). That
case originated here in the Eleventh Circuit. Nelson v. Campbell, 347 F.3d 910
(11th Cir. 2003). In Nelson, we considered whether a prisoner could bring a
§ 1983 claim to challenge the method by which the State would administer his
10 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 11 of 17
lethal injection. Id. at 912. The majority held 2-1 that because the claim was
really an attempt to prevent the State from carrying out the execution, it was
cognizable only as a habeas petition. Id. And, because it would be Nelson’s
second or successive habeas petition, it was barred. Id. But see id. at 913–15
(Wilson, J., dissenting) (explaining “that the outcome of Nelson’s petition has no
effect on either his sentence or his conviction, and therefore cannot properly be
construed under any circumstances as the equivalent to a subsequent habeas
petition”). The Supreme Court granted certiorari and reversed in a 9-0 decision,
holding that method-of-execution claims are cognizable under § 1983. Nelson, 541
U.S. 637.
To be sure, there is a difference between this case and Nelson. While the
prisoner in Nelson did not object to being executed by lethal injection—provided it
was administered more humanely—Nance claims that any type of lethal injection
would be cruel and unusual because of his particular medical condition. He asks to
be executed by firing squad instead—a method not currently permitted under
Georgia law. But we faced a nearly identical § 1983 claim only years ago when a
death-row prisoner challenged execution via lethal injection, and instead suggested
a firing squad as an alternative method. Arthur v. Comm’r, Ala. Dep’t of Corr.,
840 F.3d 1268 (11th Cir. 2016). There, we (mistakenly) held in a divided panel
that the prisoner failed to state a claim, in part because “firing squad is not a
11 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 12 of 17
currently valid or lawful method of execution in Alabama.” Id. at 1316. But see
id. at 1321–33 (Wilson, J., dissenting) (noting that Utah had recently used the
firing squad to execute a prisoner and therefore it was “a potentially viable
alternative,” so “Arthur may be entitled to relief . . . based on that method of
execution”).
The majority’s holding in Arthur turned out to be wrong. Bucklew v.
Precythe, 587 U.S. ___, 139 S. Ct. 1112 (2019). In Bucklew, the Supreme Court
made clear that “[a]n inmate seeking to identify an alternative method of execution
is not limited to choosing among those presently authorized by a particular State’s
law.” Id. at 1128. A method-of-execution claim can allege that there is “a feasible
and readily implemented alternative method of execution that would significantly
reduce a substantial risk of severe pain and that the State has refused to adopt
without a legitimate penological reason.” Id. at 1125 (citing Baze v. Rees, 553
U.S. 35, 52 (2008); Glossip v. Gross, 576 U.S. 863, 868–79 (2015)). And even if
applicable state law does not authorize any such option, the prisoner “may point to
a well-established protocol in another State as a potentially viable option.” Id. at
1128. Justice Kavanaugh wrote separately in Bucklew to emphasize this point. Id.
at 1136 (Kavanaugh, J., concurring) (“I write to underscore the Court’s additional
holding that the alternative method of execution need not be authorized under
current state law—a legal issue that had been uncertain before today’s decision.
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Importantly, all nine Justices today agree on that point.” (citations omitted) (citing
Arthur v. Dunn, 580 U.S. ___, 137 S. Ct. 725, 729–31 (2017) (mem.) (Sotomayor,
J., dissenting))). Shortly thereafter, we acknowledged the obvious: “Bucklew
demonstrates our conclusion in Arthur was incorrect.” Price v. Comm’r, Dep’t of
Corr., 920 F.3d 1317, 1326 (11th Cir. 2019) (per curiam).
It has since been well-established in our circuit that, not only can a prisoner
plead a method of execution not authorized under state law, but § 1983 is the
proper avenue of relief, and, as a corollary, such claims cannot be brought in
habeas. See McNabb v. Comm’r Ala. Dep’t of Corr., 727 F.3d 1334, 1344 (11th
Cir. 2013) (explaining that a challenge to the method of execution is properly
brought under § 1983 and that issues to be raised in § 1983 are “mutually
exclusive” of those to be raised in habeas); Tompkins v. Sec’y, Dep’t of Corr., 557
F.3d 1257, 1261 (11th Cir. 2009) (per curiam) (same); see also Hutcherson v.
Riley, 468 F.3d 750, 754 (11th Cir. 2006) (similarly explaining that a petition for
habeas corpus and a complaint under § 1983 are mutually exclusive).
Consequently, it is not surprising that the State in this case did not even
contest that Nance’s complaint was cognizable under § 1983. The panel raised the
issue sua sponte, just two weeks before oral argument, in an appeal involving death
by execution, without giving the parties an adequate opportunity to prepare to
address the issue.
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The panel majority then dismissed Nance’s claim, following the same line of
reasoning that the Supreme Court rejected in Bucklew—but this time framing the
defect as jurisdictional rather than as a failure to state a claim. Nance, 981 F.3d at
1203. The majority rationalized its approach using dicta from three Supreme Court
decisions. Nelson, 541 U.S. at 644 (“In a State . . . where the legislature has
established lethal injection as the preferred method of execution, a constitutional
challenge seeking to permanently enjoin the use of lethal injection may amount to a
challenge to the fact of the sentence itself.” (citation omitted) (emphasis added));
Hill v. McDonough, 547 U.S. 573, 579 (2006) (same); Bucklew, 139 S. Ct. at 1128
(“[E]xisting state law might be relevant to determining the proper procedural
vehicle for the inmate’s claim.” (emphasis added)).
None of this vaguely worded dicta is irreconcilable with construing a claim
like Nance’s as a civil rights claim rather than a habeas petition. Even assuming it
is possible for a purported method-of-execution claim to cross the line between
§ 1983 and habeas (perhaps if the record made clear that the prisoner’s intent was,
in reality, to challenge his sentence itself), there is no support for the majority’s
view that pleading an alternative not authorized by state law necessarily precludes
a claim from proceeding under § 1983, thereby jurisdictionally barring cases like
these. If that were so, I find it inconceivable that the Supreme Court would not
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have said as much when it emphasized that a prisoner can point to an alternative
method of execution authorized in another State.
The Supreme Court has had to correct our prior decisions in this arena. I am
concerned for this court’s credibility if we refuse to listen to the Supreme Court
and again must be corrected. At a minimum, the panel’s decision will generate
confusion in our circuit about how to bring method-of-execution claims. Nance,
981 F.3d at 1214, 1223 (Martin, J., dissenting). For these reasons, I would rehear
the case en banc to provide much-needed clarity on this issue.
Nance’s case also presents a question of exceptional importance
necessitating en banc review. We bear great responsibility in overseeing the
methods by which a State can kill its citizens. It is a great failure of this court
today to ignore the impact of this decision on other death-row prisoners in our
circuit. Especially here, where the stakes are particularly high because this
decision would leave prisoners like Nance without a remedy in federal court—no
matter how cruel and unusual the state’s authorized method of execution might be. 2
The panel majority’s holding not only “deprive[s] [Nance] of a claim he ha[s]
every right to pursue,” id. at 1218—it takes that right from death-row prisoners to
2 At oral argument in Nelson v. Campbell, Justice Ginsburg expressed her concern with this conundrum through the following hypothetical: “[T]he State tells the inmate that they’re going to hang him up by his thumbs and beat him with a whip until he dies.” Transcript of Oral Argument at 35, l, 541 U.S. 637 (2004). What then would be his remedy? 15 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 16 of 17
come. Along with Nance, they too may be executed without their constitutional
claims ever making it past the courthouse door.
Nance did everything he was supposed to: he made a colorable claim,
alleged sufficient facts, and proposed a viable remedy in accordance with Bucklew.
But this court told him no anyway, claiming that “[n]o matter how you read it,
Nance’s complaint attacks the validity of his death sentence.” Nance, 981 F.3d at
1211. Except, no matter how you read it, it doesn’t. There is no constitutional
impediment to the State executing Nance by firing squad. This much is clear in
light of Malloy v. South Carolina, where the Supreme Court held that a legislative
change in the mode of execution after a crime has been committed does not
constitute an ex post facto violation. 237 U.S. 180, 185 (1915) (“The statute under
consideration did not change the penalty—death—for murder, but only the mode
producing this . . . .”). Numerous state courts have concluded the same. E.g., Ex
parte Granviel, 561 S.W.2d 503, 510 (Tex. Crim. App. 1998) (en banc); State ex
rel. Pierce v. Jones, 9 So. 2d 42, 46 (Fla. 1942); State v. Brown, 32 P.2d 18, 25
(Ariz. 1934); Woo Dak San v. State, 7 P.2d 940, 941 (N.M. 1932). Therefore, by
asking to be executed by firing squad, Nance is not seeking to avoid his execution.
He accepts his fate. He does not ask to be spared. Nance asks only that the
method by which the State will take his life falls in line with his Eighth
Amendment right to be free of cruel and unusual punishment.
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The constitutionality of the method of Nance’s execution should have
weighed heavily on this court. It should have been deemed worthy of en banc
review. Sadly, by declining to rehear Nance’s case, a majority of the court follows
a pattern of employing faulty reasoning to bar relief from inhumane executions. I
dissent from the denial of rehearing en banc.