Simpson v. Quick

Opinion

Appellate Case: 26-6008 Document: 36 Date Filed: 02/06/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS February 6, 2026

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

KENDRICK SIMPSON,

Plaintiff - Appellant,

v. No. 26-6008 (D.C. No. 5:25-CV-01221-D) CHRISTE QUICK, in her official capacity (W.D. Okla.) as Warden of the Oklahoma State Penitentiary; JUSTIN FARRIS, In his official capacity as interim Executive Director of the Oklahoma Department of Corrections; GENTNER DRUMMOND, in his official capacity as Attorney General of Oklahoma,

Defendants - Appellees. _________________________________

ORDER _________________________________

Before HOLMES, Chief Judge, HARTZ, TYMKOVICH, MATHESON, BACHARACH, PHILLIPS, McHUGH, MORITZ, EID, CARSON, ROSSMAN, and FEDERICO, Circuit Judges. _________________________________

On February 4, 2026, the court issued its order and judgment in this matter. An

active judge of the court then called a poll, sua sponte, to consider en banc review of the

panel decision. Following the call for a poll, Appellant filed Appellant Kendrick

Simpson’s Petition for Panel Rehearing or Rehearing En Banc (“Petition”), which was Appellate Case: 26-6008 Document: 36 Date Filed: 02/06/2026 Page: 2

circulated to the en banc court. Appellees were offered an opportunity to respond to the

Petition but elected not to do so.

Appellant’s request for panel rehearing is denied.

A majority of the judges in regular active service voted against en banc rehearing;

the poll failed and Appellant’s request for en banc rehearing is denied. See Fed. R. App.

P. 40(c). Judges Rossman and Federico voted to grant en banc rehearing.

Judge Rossman and Judge Federico have prepared the attached written dissentals

from the denial of en banc rehearing. Judge Federico joins Judge Rossman’s dissental.

The Petition is DENIED. The mandate shall issue forthwith.

Entered for the Court,

Per Curiam

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No. 26-6008, Simpson v. Quick

ROSSMAN, J., dissenting from denial of rehearing en banc.

I respectfully disagree with today’s decision to deny the petition for

rehearing en banc.

This capital case implicates a question that, in my view, is not settled by

our circuit law or Supreme Court precedent: whether, after Exxon Mobil Corp.

v. Saudi Basic Industries Corp., 544 U.S. 280 (2005), the Rooker-

Feldman doctrine can be triggered by a state-court decision that is not “on the

merits.” Mindful of the limited circumstances in which the Rooker-

Feldman doctrine should apply but given the many cases in which it is actually

applied, this court or the Supreme Court should resolve this question of

exceptional importance. Appellate Case: 26-6008 Document: 36 Date Filed: 02/06/2026 Page: 4

No. 26-6008, Simpson v. Quick FEDERICO, Circuit Judge, dissenting from denial of rehearing en banc.

Kendrick Simpson was convicted of a capital crime and sentenced to

death under Oklahoma law. He is scheduled to be executed next week,

Thursday, February 12, 2026 at 10:00 a.m. Simpson claims the Oklahoma

execution statute is unlawful because it provides prison officials “near-total

discretion” in deciding the method of his execution. And, he alleges, the prison

has previously used this power to torture a man to death. In an attempt to

avoid this fate, Simpson sought recourse in Oklahoma’s courts. But the

Oklahoma Court of Criminal Appeals (OCCA) found his claim had not ripened

and declined to decide its merits.

So, Simpson filed an original action in the Western District of Oklahoma.

Invoking 42 U.S.C. § 1983, he alleged that OCCA’s refusal to hear his claim

violates his rights under the United States Constitution. The district court

applied the Rooker-Feldman doctrine and dismissed his case. 1 But that cannot

be correct. Had OCCA decided the merits of Simpson’s challenge, the district

1 The district court also ruled that Simpson’s claims must be dismissed

on the basis of Eleventh Amendment immunity. But Simpson alleges that state rules of adjudication particular to the execution statute violate his rights under the United States Constitution, so he seeks an injunction prohibiting his execution under that source of law. In the absence of an injunction, he alleges the named Defendants will execute him pursuant to the same, unlawful execution statute. Properly framed, this case falls into the Ex parte Young exception. See Reed v. Goertz, 598 U.S. 230, 234 (2023). Appellate Case: 26-6008 Document: 36 Date Filed: 02/06/2026 Page: 5

court, and now this court, could surely hear his case. See Reed v. Goertz, 598

U.S. 230 (2023); Skinner v. Switzer, 562 U.S. 521 (2011). There is no reason, in

jurisprudence or common sense, that federal courts must abstain from hearing

his due process challenge to the state court’s jurisdictional rule.

Nonetheless, a panel of this court affirmed the district court’s dismissal.

In so doing, this court expanded a doctrine that the Supreme Court will soon

consider overruling. See Brief for Petitioner at § II, T. M. v. Univ. of Md. Med.

Sys., No. 25-197 (U.S. Jan. 14, 2026) (certiorari granted; argument presented

in alternative). To reach its holding, this court worked hard to distinguish

three recent Supreme Court cases that all point the other direction, and then

relied on an unpublished out-of-circuit case that cannot be squared with either

our caselaw or that of the Supreme Court. Now, Simpson faces execution

without an opportunity to vindicate his claims alleging violations of his

constitutional rights.

Because Simpson’s case presents “an issue of exceptional public

importance” and the panel’s Order conflicts with the opinions of the United

States Supreme Court and our circuit, we should rehear it before the en banc

court. See 10th Cir. R. 40.1(B); accord Fed. R. App. P. 40(b)(2). I respectfully

dissent.

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I

This proceeding stems from crimes that were committed two decades

ago. Simpson went to a nightclub and got into an argument with two men. An

adversary hit him, and Simpson left the club. But when he saw them later the

same night, Simpson shot and killed both men. The state charged him with

two counts of first-degree murder, and a jury convicted, finding four

aggravating circumstances. Simpson was sentenced to death.

From death row, Simpson sought relief in Oklahoma’s courts. In that

litigation, he brought a facial challenge to the Oklahoma statute authorizing

executions. His challenge took the form of an action for injunctive and

declaratory relief on the theory that the execution statute violates the

Oklahoma Constitution. The statute provides four methods of execution: lethal

injection, nitrogen hypoxia, electrocution, and firing squad. Okla. Stat. tit. 22,

§ 1014. The statute lists the methods in order and allows prison officials to

bypass a method if it is either unconstitutional or “unavailable.” See id.

Simpson argued that because the statute does not define unavailability, it

creates an unlawful delegation of legislative power prohibited by the

Oklahoma Constitution.

Simpson highlighted some of the prison’s previous determinations of

unavailability. He pointed to the execution of Charles Warner, who died by

lethal injection. In the pleadings, Simpson alleged that the prison used the

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wrong drugs. Warner’s last words were: “My body is on fire.” R. at 23. Simpson

alleged that this demonstrates “[t]he prison tortured a man to death because

it failed to find that lethal injection was unavailable.” Id.

OCCA, though, found Simpson’s claim was not ripe. It reasoned: “Unless

and until lethal injection is held unconstitutional by a court or is otherwise

unavailable, there has been no harm” to Simpson. Underwood v. Harpe, No.

PR-2024-637, slip op. at 3 (Okla. Crim. App. Sept. 17, 2024). Notably, OCCA’s

order was filed before Simpson’s execution date was set.

Next, Simpson filed his original action in federal court, in the Western

District of Oklahoma. There, he argued that he was subjected to a “state

process [that] singled out the execution statute as the one statute that cannot

be challenged before enforcement.” R. at 17. He alleged that although state law

provides for pre-enforcement challenges to the constitutionality of statutes, the

construction of state justiciability doctrines uniquely prohibits such challenges

to the execution statute. Simpson explained: “Before execution, the case is

unripe. After execution, the case is moot. Any challenge to the statute goes

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from unripe to moot instantaneously.” Id. at 21. 2 This, he argued, denied his

rights to procedural due process, judicial access, and equal protection under

the United States Constitution.

The district court applied the Rooker-Feldman doctrine and Eleventh

Amendment immunity to conclude that it did not have jurisdiction over the

case. Simpson timely appealed to this court, and a panel of this court affirmed.

In my view, this affirmance should be examined by the en banc court. Given

that this court has declined further review, I hope this case garners a hard look

by the Supreme Court.

II

For all the judicial ink that has been spilled in its name, Rooker-Feldman

is at least theoretically straightforward. The doctrine merely acknowledges the

statutory edict that direct appeals from a state’s highest court may only be

2 This point deserves further explanation. OCCA declared Simpson’s challenge was not ripe for adjudication because he didn’t show that any method of execution was “unavailable.” In his federal complaint, Simpson explained “state law prohibits disclosing information about the execution team or the prison’s procurement of lethal injection drugs, essentially making it illegal for Mr. Simpson to investigate the availability of lethal injection.” R. at 8; see also id. at 25. Also, he alleged that “simply by deeming a method unavailable, the prison can change the execution method at any moment and without notice. The prison can also change the execution protocol at any moment and without notice.” Id. at 15 (internal citations omitted). So, the thrust of his argument is that he cannot know whether a method of execution is unavailable because he won’t find out what method is to be used until the moment arrives for it to be employed. Once employed, his claim is then immediately rendered moot. 5 Appellate Case: 26-6008 Document: 36 Date Filed: 02/06/2026 Page: 9

heard in the Supreme Court of the United States. Verizon Md., Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. 635, 644 n.3 (2002) (citing 28 U.S.C. §§ 1257,

1331); see also Campbell v. City of Spencer, 682 F.3d 1278, 1281 (10th Cir.

2012) (“[W]hen Congress vested the Supreme Court with appellate jurisdiction

over state-court judgments, it implied that the lower federal courts lacked

authority to review state-court judicial proceedings.”). But, some have

observed that instead of hewing to this narrow path, federal district and circuit

courts seized on Rooker-Feldman’s potential as a “‘docket-clearing workhorse’”

and transformed it into “an inscrutable abstention doctrine, an untethered way

for federal courts to defer to state court litigation of related cases and

controversies and a new way to avoid deciding federal questions.”

VanderKodde v. Mary Jane M. Elliott, P.C., 951 F.3d 397, 406 (6th Cir. 2020)

(Sutton, J., concurring) (quoting Susan Bandes, The Rooker-Feldman Doctrine:

Evaluating Its Jurisdictional Status, 74 Notre Dame L. Rev. 1175, 1175

(1999)).

In 2005, the Supreme Court, apparently concerned by the doctrine’s

expansion and frequent usage in district and circuit courts, issued Exxon Mobil

Corp. v. Saudi Basic Industries, 544 U.S. 280 (2005). There, the Court provided

the modern formulation of the doctrine:

The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by

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state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.

Id. at 284.

In applying this standard, we “follow the Supreme Court’s lead” and

require that “an element of the claim [] be that the state court wrongfully

entered its judgment.” Campbell, 682 F.3d at 1283. “Thus, a federal-court claim

is not barred by Rooker-Feldman as a complaint ‘of injury caused by a state-

court judgment’ just because it seeks relief inconsistent with that judgment.”

Id. (alterations adopted and internal citation omitted) (quoting Exxon, 544 U.S.

at 284). So, where a federal complaint “does not challenge the adverse [state

court] decision[]” but instead “targets as unconstitutional the [state] statute []

authoritatively construed,” it faces no Rooker-Feldman bar. Skinner, 562 U.S.

at 532. Even though the state court decision itself may be unreviewable, “a

statute or rule governing the decision may be challenged in a federal action.”

Id.

We have apparently never applied Rooker-Feldman in an analogous case

to bar review of a state court judgment that did not address the merits of the

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claim. 3 There is good reason to think we should not do so now. A state court’s

jurisdictional determination may have preclusive effect, but Rooker-Feldman

is distinct from preclusion. Exxon, 544 U.S. at 293; Mayotte v. U.S. Bank Nat’l

Ass’n, 880 F.3d 1169, 1174 (10th Cir. 2018); Campbell, 682 F.3d at 1283. And

it is the law of this circuit that Rooker-Feldman does not bar challenges to post-

judgment state enforcement procedures. Graff v. Aberdeen Enterprizes, II, Inc.,

65 F.4th 500, 517 (10th Cir. 2023) (citing Kiowa Indian Tribe of Okla. v.

Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998)).

More to the point is our opinion in Merrill Lynch Business Financial

Services, Inc. v. Nudell, where this court held that the Rooker-Feldman

doctrine is inapplicable when a state court does not pass on the merits of the

claim. See 363 F.3d 1072, 1076 (10th Cir. 2004) (citing Pittsburg Cnty. Rural

3 In Littlejohn v. Quick, Oklahoma death row inmate Manuel Littlejohn

alleged violations of due process in the district court. See No. 24-6203 (10th Cir. Sept. 25, 2024), Doc. 2 at 14. The district court found it did not have jurisdiction under Rooker-Feldman and Littlejohn asked this court for a stay. In his briefing, he did not address the Rooker-Feldman issue. See id. at 1-11. And the order that issued in Littlejohn did not address the doctrinal basis for the district court’s ruling. Instead, it only stated: “Mr. Littlejohn has not addressed the jurisdictional basis for the district court’s ruling or established that he is likely to succeed on appeal in arguing that the ruling was incorrect under the Rooker-Feldman doctrine or as to Eleventh Amendment immunity.” Id. (Sept. 26, 2024), Doc. 4 at 3. This statement, made in a stay order and without the benefit of briefing from the parties, neither addresses nor resolves the Rooker-Feldman issue raised by Simpson’s thorough presentation and argument.

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Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 707 (10th Cir. 2004)). 4

Because this case predated Exxon, we did not apply the now-operative

standard. Instead, we applied the “inextricably intertwined” standard that the

Supreme Court eschewed in its Exxon reformulation. See Campbell, 682 F.3d

at 1283.

However, our analysis in Merrill Lynch did not rely solely on a

determination that the state and federal claims were not “inextricably

intertwined.” See 363 F.3d at 1075–76. Instead, we made the threshold

determination that no issue was “actually decided” in state court and,

therefore, the dismissal “not on the merits” did not “trigger” application of the

“inextricably intertwined” analysis. See id. at 1076. Thus, our subsequent

reasoning in Campbell that we need not “untangle the meaning of inextricably

intertwined,” see 682 F.3d at 1283, does little to unmoor Merrill Lynch from its

foundations. Even though it predates Exxon, this court has not explicitly

overruled Merrill Lynch, so it may still be good law for the proposition that a

state court’s non-merits determination does not bring Rooker-Feldman into

4 Simpson did not cite Merrill Lynch in his briefs to this court. However,

he did cite Mo’s Express, LLC v. Sopkin, 441 F.3d 1229 (10th Cir. 2006), which discusses the “actually decided by a state court” language that is found in Merrill Lynch. 441 F.3d at 1233.

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play. To the extent there is any doubt, this court should have considered the

question en banc.

And recent Supreme Court jurisprudence reinforces this teaching. Thrice

in recent memory the Court has reviewed challenges to a Texas postconviction

DNA statute: Skinner; Reed; Gutierrez v. Saenz, 606 U.S. 305 (2025). All three

of those challenges were, like this case, § 1983 suits brought in federal district

court after Texas state courts reviewed and denied the defendants’ claims on

the merits. Yet, in none of those cases did the Supreme Court find Rooker-

Feldman to be a jurisdictional bar. To the contrary, the Supreme Court

explicitly held in two of those cases that Rooker-Feldman did not apply. See

Reed, 598 U.S. at 235; Skinner, 562 U.S. at 532. These three cases demonstrate

that if OCCA had decided on the merits whether the Oklahoma execution

statute comports with the state constitution, then Simpson’s federal complaint

would suffer no Rooker-Feldman bar. It is hard to see why a state rule of

justiciability should be any less amenable to review than the “authoritative[]

constru[ction]” of a statute, see Skinner, 562 U.S. at 532. Indeed, both statutes

and “rule[s] governing the decision may be challenged in a federal action.” Id.

The Rooker-Feldman doctrine may be appropriately invoked where a losing

party seeks to appeal a state court judgment to a federal district and then

circuit court. But it does not insulate from review on federal grounds a state

court rule that prevents access to a state court determination in the first place.

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Simpson’s federal complaint alleges that OCCA has applied its ripeness

doctrine to render the execution statute unreviewable. R. at 17. In so many

words, he argues that this “rule governing [the state court] decision,” Skinner,

562 U.S. at 532, prevents him from ever having access to a forum for his claim.

Simpson “does ‘not challenge the adverse’ state-court decisions themselves, but

rather ‘targets as unconstitutional the [Oklahoma doctrine] they

authoritatively construed.’” Reed, 598 U.S. at 235 (quoting Skinner, 562 U.S.

at 532). And these allegations are not in service of a request to merely revisit

the state court judgment. They support an original federal action under 42

U.S.C. § 1983 alleging violations of Simpson’s constitutional rights. Simpson’s

federal claims are outside the scope of Rooker-Feldman.

Resisting this conclusion, the panel cites to an unpublished per curiam

disposition of our sister circuit: Rhoades v. Martinez, No. 21-70007, 2021 WL

4434711 (5th Cir. 2021). But the reasoning, which was joined by only two of

the Fifth Circuit panel’s three judges, see id. at n*, does not translate.

In Rhoades, the Fifth Circuit distinguished Skinner because Rhoades

had named as defendant a state judge, not a district attorney. Id. at *2. It

acknowledged this distinction as “fundamental.” Id. And in this case, of course,

Simpson has named no judge as defendant. Even setting that difference aside,

Rhoades cannot be squared with our precedent or that of the Supreme Court.

Although the Fifth Circuit reasoned that a challenge to a jurisdictional

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determination “cannot be reframed as a denial of due process rooted in the

state law rule,” it failed to explain how it reached that conclusion. Id. And,

rather than applying the rule announced in Exxon, the Fifth Circuit cited to

pre-Exxon caselaw for the “inextricably intertwined” standard. Id.

In Campbell, this court recognized that Exxon changed the standard we

must apply when considering whether a claim is barred by Rooker-Feldman,

and thereafter we dropped the “inextricably intertwined” consideration from

our jurisprudence. 682 F.3d at 1283. But Rhoades explicitly applies the

“inextricably intertwined” standard that this court has said no longer applies.

The panel’s decision makes no mention of this aspect of Rhoades and, in my

view, simply gives Rhoades more weight than it can bear.

III

I fear that we have departed from the precedent of this court and, more

importantly, from the binding precedent of the Supreme Court. As I

understand it, the Supreme Court has already given authoritative guidance on

how the doctrine applies. Of course, the Supreme Court looks upon Rooker-

Feldman from a far different vantage point than we do. But from where I sit,

precedent compels reversal.

And certainly, this matter is of exceptional public importance – Simpson

is set to be executed next week. Given the reasons explained above, I

respectfully dissent from denial of en banc review.