Nelson v. Campbell

347 F.3d 910, 2003 U.S. App. LEXIS 20694, 2003 WL 22309895

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 8, 2003
• Docket: No. 03-15095
• Status: Published

Opinions

ANDERSON, Circuit Judge:

David Larry Nelson is an Alabama inmate convicted of capital murder and sentenced to death. On October 6, 2003, three days prior to his scheduled execution, Nelson filed a 42 U.S.C. § 1983 action in the Middle District of Alabama. In his complaint, Nelson asserts that he has severely compromised veins and that Alabama’s proposed use of a “cut-down” procedure to gain venous access (if access to a suitable vein cannot be achieved) as part of the lethal injection procedure constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.¹ Nelson further asserts a state law claim, pursuant to 28 U.S.C. § 1367, alleging that he has been denied access to his physician in violation of Alabama law. Among other relief, Nelson requests an order granting injunctive relief and staying his execution scheduled for October 9, 2003. By order dated October 7, 2003, the district court dismissed Nelson’s complaint for lack of jurisdiction. We affirm.

As we stated in Hill v. Hopper, 112 F.3d 1088, 1088-89 (11th Cir.1997), “a prisoner may not circumvent the rules regarding second or successive habeas petitions by filing a § 1983 claim.” See also Felker v. Turpin, 101 F.3d 95 (11th Cir.1996); Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301 (11th Cir.2002).

The full procedural history of this case prior to the instant § 1983 claim is set out in detail in Nelson v. Alabama, 292 F.3d 1291, 1293-94 (11th Cir.2002). However, for the purposes of this appeal it is sufficient to state that Nelson previously filed a federal habeas petition on April 14, 1997, alleging error due to the trial court’s failure to conduct a Faretta hearing prior to allowing him to proceed pro se at his 1994 re-sentencing hearing. Nelson v. Alabama, 292 F.3d at 1294.²

Because Nelson has previously-filed a federal habeas petition, we are confronted with the question of whether Nelson’s complaint seeking relief under 42 U.S.C. § 1983 constitutes the “functional equivalent” of a second or successive habe-as petition, such that it would be subject to the requirements of 28 U.S.C. § 2244. Fugate v. Dep’t of Corrs., 301 F.3d 1287, 1288 (11th Cir.2002); Hill v. Hopper, 112 F.3d at 1089; Felker v. Turpin, 101 F.3d at 96. Nelson’s § 1983 claim alleges that Alabama’s proposed possible³ use of the “cut-down” procedure to gain venous access as part of the lethal injection procedure constitutes cruel and unusual punishment. We addressed a similar § 1983 claim in Fugate v. Department of Corrections, 301 F.3d 1287. The plaintiff in Fugate asserted, among other challenges to the State of Georgia’s lethal injection procedure, that the use of a “cut-down” procedure in the absence of a suitable vein violated the Eighth and Fourteenth Amendments. Compl. for Injunctive Relief and Decl. J., filed Aug. 12, 2002, ¶¶ 24-28, Fugate v. Dep’t of Corrs., No. 02-02219-CV-CC (N.D.Ga. Aug. 13, 2002). On appeal, we held that the district court properly dismissed the § 1983 action to “enjoin and restrain the defendants from executing [Fugate] until they [took] certain measure[s] to minimize the risk of unnecessary pain, suffering and mutilation during the execution process,” because the § 1983 action constituted the “functional equivalent” of a second habeas petition. 301 F.3d at 1288. Pursuant to Fugate, we conclude that Nelson’s § 1983 claim also constitutes the “functional equivalent” of a second habeas petition as it seeks an immediate stay to the imposition of Nelson’s death sentence. See Fugate, 301 F.3d at 1288; Spivey v. State Bd. of Pardons and Paroles, 279 F.3d 1301, 1303 & n. 4. We believe that the instant case is indistinguishable from Fugate; both sought to minimize the risk of unnecessary pain during the execution process, and both sought to stay the execution until appropriate corrective measures were taken.

Because Nelson’s § 1983 claim was the “functional equivalent” of a second ha-beas petition and because Nelson did not get our permission to file a second habeas petition prior to filing in the district court as required by 28 U.S.C. § 2244(b)(3)(A), the district court properly dismissed Nelson’s § 1983 claim for lack of jurisdiction to entertain the claim. Fugate, 301 F.3d at 1288; Hill, 112 F.3d at 1089. Moreover, even had Nelson sought our permission to file a second habeas petition, the facts alleged indicate that Nelson’s application would have been denied pursuant to 28 U.S.C. § 2244(b)(2) because 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 for the claim [that] could not have been discovered previously through the exercise of due diligence ... [that] if proven and viewed in light of the evidence as a whole, would be sufficient to establish ... that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” See 28 U.S.C. § 2244(b)(2); Felker v. Turpin, 101 F.3d at 97; In re Provenzano, 215 F.3d 1233, 1235-36 (11th Cir.2000) (involving an application for second habeas petition challenging lethal injection as administered by the State of Florida as cruel and unusual punishment and dismissing it because the claim did not meet the requirements of § 2244(b)(2)).

With respect to Nelson’s state law claim, we agree with the district court that it is barred by Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1994).

For the foregoing reasons the district court’s judgment dismissing Nelson’s complaint is affirmed. Nelson’s motion to enjoin defendants from executing him is denied.

The judgment of the district court is AFFIRMED⁴, and Nelson’s motion for stay of execution is DENIED.⁵

1 . The "cut-down” procedure would require making a two inch incision in Nelson’s upper arm for the purpose of locating a peripheral vein to perform a central line procedure. The procedure would be performed using local anesthetic.

2 . Additionally, Nelson, through his counsel, acknowledged that he had exhausted all available habeas corpus relief and that he would have to get permission from the Eleventh Circuit in order to file a second or successive habeas petition. Tr. of In-Chambers Tel. Conference, Oct. 7, 2003, at *22-23.

3 . We say "possible” because Alabama first proposes to gain venous access through a femoral vein in Nelson’s thigh and if unsuccessful through the external carotid artery in Nelson's neck, neither of which procedure Nelson challenges. It is only if venous access cannot be readily gained in those two areas that Alabama proposes to use the third alternative of the "cut-down” procedure.

4 . While the dissent’s distinction of Felker v. Turpin, Hill v. Hopper, and possibly even Gilreath v. State Board of Pardons & Paroles, 273 F.3d 932 (11th Cir.2001), may be plausible, we believe its attempt to distinguish Fugate is flawed. As noted in our opinion, we do not believe Fugate is distinguishable. Fugate was no more attempting to avoid his sentence than is Nelson. Both asserted that they were not challenging their sentence. See Compl. for Injunctive Relief and Decl. J., filed Aug. 12, 2002, at *1, Fugate v. Dep’t of Corrs., No. 02-02219-CV-CC (N.D.Ga. Aug. 13, 2002) (first sentence) (“Fugate ... brings this action pursuant to 42 U.S.C. § 1983 challenging not his sentence of death, nor lethal injection as a manner of inflicting death, but the failure of Georgia officials in changing from electrocution to lethal injection to take sufficient measures to minimize the risk of him experiencing extreme and excruciating pain”). In both this case and in Fugate, the appellants suggested less painful alternative ways to implement lethal injection. In short, both cases sought to "enjoin ... the defendants from executing him until they take certain measures to minimize the risk of unnecessary pain.” Fugate, 301 F.3d at 1288 (emphasis added).

We also reject the dissent's suggestion that Nelson’s attempt to stay his execution is irrelevant to the "functional equivalent” issue. See Spivey v. State Bd. of Pardons and Paroles, 279 F.3d at 1303 (reviewing our decision in Gilreath and stating "In reviewing the denial of a motion for preliminary injunction to stay Gilreath’s execution, the Court held that '[w]e look at the kind of relief Appellant seeks and conclude that, however the Appellant describes it, the motion was for habeas corpus relief.’ ”); see also Spivey, 279 F.3d at 1304 n. 4 (distinguishing the claim in Spivey from the claim in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), stating "There, no execution date was imminent, and there is no indication that Woodard’s claims would necessarily imply a challenge to the imposition of a death sentence.”). Nelson’s prayer to stay his execution directly impedes the implementation of the state sentence, and is indicative of an effort to accomplish via § 1983 that which cannot be accomplished by a successive petition for habeas corpus. Bradley v. Pryor, 305 F.3d 1287 (11th Cir.2002), is readily distinguished from the instant case. That case involved no attempt to stay Bradley’s execution, and no attempt to interfere with the implementation of the state sentence.

5 . The Appellant’s request for oral argument is denied.