Nebraska Advance Sheets 938 287 NEBRASKA REPORTS
State of Nebraska, appellee, v. Michael W. Ryan, appellant. ___ N.W.2d ___
Filed April 18, 2014. No. S-12-215.
1. Postconviction: Appeal and Error. In appeals from postconviction proceedings, an appellate court independently resolves questions of law. 2. ____: ____. Whether a movant has failed to state a claim for postconviction relief is a question of law. 3. Jurisdiction: Words and Phrases. Strictly speaking, “jurisdiction” refers to a court’s adjudicatory authority. Accordingly, the term “jurisdictional” properly applies only to prescriptions delineating the classes of cases (subject matter juris- diction) and the persons (personal jurisdiction) implicating that authority. 4. Constitutional Law: Judgments: Postconviction: Jurisdiction. Whether a fac- tual circumstance exists whereby the judgment is void or voidable under the state or U.S. Constitution is an element of a claim for postconviction relief, not a jurisdictional prerequisite. 5. Judgments: Sentences: Postconviction. Method-of-execution claims do not challenge the underlying conviction or the sentence itself (which is the judg- ment in a criminal case); so, a method-of-execution claim, even if successful, would not render the judgment void or voidable, as required by Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2012).
Appeal from the District Court for Richardson County: Daniel E. Bryan, Jr., Judge. Affirmed. James R. Mowbray and Robert W. Kortus, of Nebraska Commission on Public Advocacy, for appellant. Jon Bruning, Attorney General, and James D. Smith for appellee. Michael W. Ryan, pro se. Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller-Lerman, JJ., and Inbody, Chief Judge. Connolly, J. SUMMARY Michael W. Ryan, convicted of first degree murder and sen- tenced to death,1 moved for postconviction relief. The district
1 See State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). Nebraska Advance Sheets STATE v. RYAN 939 Cite as 287 Neb. 938
court dismissed his motion without an evidentiary hearing. Because Ryan’s motion failed to state a claim for postcon- viction relief, either because his claims were without legal basis or because they were not cognizable in postconviction, we affirm.
BACKGROUND Factual and P rocedural Background We affirmed Ryan’s conviction and sentence on direct appeal.2 The underlying facts are long and brutal and need not be repeated here. Since our affirmance, Ryan has filed two other postconviction motions, both of which were denied.3 Ryan also filed for federal habeas relief, which the federal courts denied.4 We have, at various times, ordered Ryan to be executed, but each time we subsequently stayed the execution. Our last order scheduling Ryan’s execution was January 11, 2012, but following Ryan’s motion for postconviction relief, filed on February 13, and subsequent emergency motion for a stay, we again stayed Ryan’s execution. The district court dismissed Ryan’s motion without an evidentiary hearing, and he appealed.
District Court’s Order Dismissing Ryan’s Postconviction Motion In its order dismissing Ryan’s motion, the court set forth each of Ryan’s alleged grounds for postconviction relief, which we summarize as follows: 1. The State illegally obtained stolen thiopental, in violation of Nebraska law. The State’s attempt to use that drug to con- duct Ryan’s execution denies Ryan due process and equal protection under both the state and federal Constitutions.
2 See id. 3 See, State v. Ryan, 257 Neb. 635, 601 N.W.2d 473 (1999), abrogated, State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008); State v. Ryan, 248 Neb. 405, 534 N.W.2d 766 (1995). 4 See Ryan v. Clarke, 281 F. Supp. 2d 1008 (D. Neb. 2003), affirmed 387 F.3d 785 (8th Cir. 2004). Nebraska Advance Sheets 940 287 NEBRASKA REPORTS
2. The State’s pattern of bad faith in seeking an execution date for Ryan denies Ryan due process under both the state and federal Constitutions. 3. he Legislature passed 2009 Neb. Laws, L.B. 36, which T changed Ryan’s “final” sentence by mitigating the method of execution from electrocution to lethal injection, and is in violation of the Board of Pardons’ exclusive commuta- tion power and the separation of powers provisions of the state Constitution. 4. he Legislature’s passing of L.B. 36 was an improper abdi- T cation and delegation of its exclusive authority to determine the particular quantity and type of drugs to be used in lethal injection, in violation of the separation of powers provisions in the state Constitution. 5. he Legislature’s passing of L.B. 36 changed the method of T execution to lethal injection and, along with the Nebraska Department of Correctional Services’ creating a new execu- tion protocol after Ryan’s conviction became final, vio- lates the Ex Post Facto Clauses of both the state and fed- eral Constitutions. In dismissing Ryan’s motion, the court observed that “it [could] only enter relief in cases where a prisoner in custody under sentence assert[ed] facts that claim[ed] a right to be released on grounds that there was a denial or infringement of state or federal constitutional rights that would render the judg- ment of conviction void or voidable.” The court characterized Ryan’s alleged grounds for relief as “not deal[ing] with the judgement [sic] of the death sentence,” but, rather, “deal[ing] with the method of inflicting the death penalty.” Thus, the court observed, Ryan’s claims were not cognizable in postcon- viction.5 The court therefore dismissed Ryan’s motion without an evidentiary hearing. ASSIGNMENT OF ERROR Ryan assigns, restated, that the district court erred in dis- missing his motion for postconviction relief without an eviden- tiary hearing.
5 See, Mata, supra note 3; State v. Moore, 272 Neb. 71, 718 N.W.2d 537 (2006). Nebraska Advance Sheets STATE v. RYAN 941 Cite as 287 Neb. 938
STANDARD OF REVIEW [1,2] In appeals from postconviction proceedings, we inde- pendently resolve questions of law.6 Whether a movant has failed to state a claim for postconviction relief is a question of law.7
ANALYSIS As an initial matter, the parties dispute whether the court dismissed Ryan’s motion on jurisdictional grounds. A review of the court’s order suggests that the court understood its ruling to be based on jurisdictional grounds. Relying on our decision in State v. Lotter,8 the court stated that Neb. Rev. Stat. § 29-3001 (Cum. Supp. 2012) limited its jurisdiction to grant postconvic- tion relief. And because the court concluded that Ryan was not entitled to postconviction relief under § 29-3001, it dismissed his motion. [3] In Lotter, citing a Nebraska Court of Appeals decision, we stated that “[a]bsent a factual circumstance whereby the judg- ment is void or voidable under the state or U.S. Constitution, the court has no jurisdiction to grant postconviction relief.”9 Our language, however, was imprecise. Courts, including this court,10 have frequently used the term “jurisdiction” too loose- ly.11 Strictly speaking, “‘[j]urisdiction’ refers to ‘a court’s adju- dicatory authority.’”12 “Accordingly, the term ‘jurisdictional’ properly applies only to ‘prescriptions delineating the classes
6 See, e.g., State v. Dragon, ante p. 519, 843 N.W.2d 618 (2014). 7 See State v. Edwards, 284 Neb. 382, 821 N.W.2d 680 (2012). 8 State v. Lotter, 278 Neb. 466, 771 N.W.2d 551 (2009). 9 Id. at 475, 771 N.W.2d at 559 (citing State v. Murphy, 15 Neb. App. 398, 727 N.W.2d 730 (2007)). See, also, State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010). 10 See, e.g., Nebraska Republican Party v. Gale, 283 Neb. 596, 812 N.W.2d 273 (2012). 11 See, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006); State v. Armstrong, 146 Idaho 372, 195 P.3d 731 (Idaho App. 2008). 12 Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010). Nebraska Advance Sheets 942 287 NEBRASKA REPORTS
of cases (subject matter jurisdiction) and the persons (per- sonal jurisdiction)’ implicating that authority.”13 Here, the court clearly had both. [4] Whether a factual circumstance exists whereby the judg- ment is void or voidable under the state or U.S. Constitution is an element of a claim for postconviction relief, not a jurisdic- tional prerequisite. Thus, where such a circumstance is lacking, the proper course is to dismiss for failure to state a claim, not for lack of jurisdiction. And here, despite the labeling confu- sion, that is effectively what the court did. We review de novo that determination.14 [5] As set forth above, Ryan’s motion contained five claims for postconviction relief. The district court characterized all of Ryan’s claims as “deal[ing] with the method of inflicting the death penalty.” If that characterization is correct, Ryan’s claims would not be cognizable in postconviction.15 This is because such claims do not challenge the underlying convic- tion or the sentence itself (which is the judgment in a criminal case16); so, a method-of-execution claim, even if successful, would not render the judgment void or voidable, as required by § 29-3001(1).17 We agree with the court’s characterization with one excep- tion. Ryan’s second claim challenges whether the State can put him to death at all, no matter the method. Ryan argues that the State, through its alleged dilatory conduct and schedul- ing of “sham executions,” violated his due process rights and effectively forfeited its right to execute him.18 This claim is not a method-of-execution claim. Nevertheless, on our de novo review, we conclude that this claim does not state a claim for
13 Id., 559 U.S. at 160-61. 14 See Edwards, supra note 7. 15 See Moore, supra note 5. 16 See, e.g., State v. Jiminez, 283 Neb. 95, 808 N.W.2d 352 (2012). 17 See Moore, supra note 5. 18 See brief for appellant at 33. Nebraska Advance Sheets STATE v. RYAN 943 Cite as 287 Neb. 938
postconviction relief. Despite Ryan’s argument to the contrary, his claim appears to be similar to the claim we rejected in State v. Moore.19 And the only authority he provides for his claim is either inapposite or not authority at all.20 As for Ryan’s other four claims, we agree with the court’s characterization: they are method-of-execution claims. Ryan agrees that the first claim is a method-of-execution claim, but disagrees as to the other three. Our review of his motion and brief, however, indicates that they too are method-of-xecution claims. Ryan’s third claim alleges that e the Legislature improperly commuted his sentence “by miti- gating the method of execution from electrocution to lethal injection.” Ryan’s fourth claim alleges that the Legislature improperly delegated its responsibility “to determine the par- ticular quantity and type of drug(s) to be used in lethal injection” to the executive branch. And Ryan’s fifth claim alleges that the change to lethal injection violated the ex post facto provisions of the federal and state Constitutions. Each of these claims takes issue (in different ways) with the method of execution, not the sentence of death. Thus, they are method-of-execution claims. As the court recognized, we held in State v. Moore that such claims are not cognizable in postconviction.21 There, the defendant’s petition for postconviction relief challenged the electrocution protocol for implementing the death penalty. We observed that the defendant’s petition did not challenge “either
19 State v. Moore, 256 Neb. 553, 591 N.W.2d 86 (1999). 20 See, Baze v. Rees, 553 U.S. 35, 128 S. Ct. 1520, 170 L. Ed. 2d 420 (2008) (citing Francis v. Resweber, 329 U.S. 459, 67 S. Ct. 374, 91 L. Ed. 422 (1947)); Johnson v. Bredesen, 558 U.S. 1067, 130 S. Ct. 541, 175 L. Ed. 2d 552 (2009) (Stevens, J., statement respecting denial of certiorari; Breyer, J., joins); Thompson v. McNeil, 556 U.S. 1114, 129 S. Ct. 1299, 173 L. Ed. 2d 693 (2009) (Stevens, J., statement respecting denial of certiorari); Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421, 131 L. Ed. 2d 304 (1995) (Stevens, J., memorandum respecting denial of certiorari; Breyer, J., agrees). 21 Moore, supra note 5. Nebraska Advance Sheets 944 287 NEBRASKA REPORTS
his underlying conviction or the judgment of a sentence of death.”22 We concluded, after reviewing the U.S. Supreme Court’s cases in Nelson v. Campbell23 and Hill v. McDonough,24 that the defendant’s claim was not cognizable in postconvic- tion, which is reserved for claims which would render the judg- ment void or voidable.25 We logically reaffirmed that holding in several cases since; namely, in State v. Torres,26 State v. Ellis,27 and State v. Mata,28 in which we held that the method of execution is separate from the sentence of death. Though those cases arose on direct appeal, it follows that because the method of execution is sepa- rate from the sentence, a challenge to the method of execution would not render the sentence void or voidable. So, such chal- lenges are not cognizable in postconviction. But Ryan seeks to change our law, or at least how it applies in this particular case. Ryan argues that State v. Moore was wrong, in that it misinterpreted the U.S. Supreme Court’s decisions in Nelson and Hill and incorrectly held that method- of-execution claims could not be brought in postconviction. Ryan also argues that Moore is no longer controlling because there have been changes in Nebraska’s laws regarding the death penalty, which under the reasoning of Nelson and Hill, affect whether a method-of-execution claim is cognizable in postconviction. Ryan relies on Nelson and Hill, both of which address the proper avenue (federal habeas or 42 U.S.C. § 1983 (2006))
22 Id. at 78, 718 N.W.2d at 543. 23 Nelson v. Campbell, 541 U.S. 637, 124 S. Ct. 2117, 158 L. Ed. 2d 924 (2004). 24 Hill v. McDonough, 547 U.S. 573, 126 S. Ct. 2096, 165 L. Ed. 2d 44 (2006). 25 See Moore, supra note 5. 26 State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012), cert. denied ___ U.S. ___, 133 S. Ct. 244, 184 L. Ed. 2d 129. 27 State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011). 28 Mata, supra note 3. Nebraska Advance Sheets STATE v. RYAN 945 Cite as 287 Neb. 938
for bringing particular method-of-execution claims in fed- eral court. We first note that we, like Ryan, agree that these cases are informative here. Both cases involved method-of- execution claims. Both cases noted that claims challenging the fact of the conviction or the duration of the sentence must be brought in federal habeas because they fall within the “core” of habeas corpus.29 Such claims, by analogy, would be cog- nizable in postconviction because, if meritorious, they would render the judgment void or voidable. And in both cases, the Court discussed circumstances leading it to conclude that the particular claim did not attack the conviction or sentence and therefore was proper under § 1983.30 Because of Ryan’s reli- ance on Nelson and Hill, we believe it helpful to set out in depth the facts and reasoning from both cases. In Nelson v. Campbell, the petitioner, through § 1983, chal- lenged a particular aspect of Alabama’s lethal injection pro- tocol.31 Specifically, the petitioner challenged Alabama’s use of a “‘cut-down’” procedure to access his veins as cruel and unusual under the Eighth Amendment. The issue was whether § 1983 was the appropriate avenue to bring the claim or whether it sounded in federal habeas.32 The U.S. Supreme Court first noted that a prisoner must bring his claim in federal habeas when it challenges “the fact of his conviction or the duration of his sentence,” but that he may bring his claim in § 1983 when it “merely challenge[s] the conditions of [his] confinement.”33 After observing that it had not yet had occasion to consider how to characterize a method-of-execution claim, the Court explained that it was not a simple matter: Neither the “conditions” nor the “fact or duration” label is particularly apt. A suit seeking to enjoin a particular
29 See, Hill, supra note 24; Nelson, supra note 23. 30 See id. 31 Nelson, supra note 23. 32 Id., 541 U.S. at 639. 33 Id., 541 U.S. at 643. Nebraska Advance Sheets 946 287 NEBRASKA REPORTS
means of effectuating a sentence of death does not directly call into question the “fact” or “validity” of the sentence itself—by simply altering its method of execution, the State can go forward with the sentence. . . . On the other hand, imposition of the death penalty presupposes a means of carrying it out. In a State such as Alabama, 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. A finding of unconstitutionality would require statutory amendment or variance, imposing sig- nificant costs on the State and the administration of its penal system. And while it makes little sense to talk of the “duration” of a death sentence, a State retains a sig- nificant interest in meting out a sentence of death in a timely fashion.34 The Court, however, concluded that “[w]e need not reach here the difficult question of how to categorize method-of- execution claims generally.”35 It reasoned that, had the cut- down procedure been used for some other purpose than to execute the petitioner (say, for medical treatment), a claim that such a procedure was unconstitutional would sound in § 1983. The Court saw no reason to treat the claim differently just because it was a precursor to an execution. Moreover, the court observed that the cut-down procedure was not statu- torily mandated and that the petitioner conceded there were acceptable alternatives to gain access to his veins.36 Had that not been the case, however, the Court noted that he “might have a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sen- tence itself.”37 The Court concluded that in those particular
34 Id., 541 U.S. at 644. 35 Id. 36 Id. 37 Id., 541 U.S. at 645. Nebraska Advance Sheets STATE v. RYAN 947 Cite as 287 Neb. 938
circumstances, the petitioner’s claim was cognizable under § 1983.38 In Hill v. McDonough, the petitioner, again through § 1983, challenged the constitutionality of a three-drug sequence likely to be used by Florida to execute him.39 Hill presented the same basic issue as in Nelson: whether the claim should be brought as a federal habeas claim or as a § 1983 claim.40 After setting forth the general propositions regarding when a claim sounds in federal habeas as opposed to § 1983, the Court looked toward its earlier decision in Nelson. The Court stated that the issue in Nelson was “whether a challenge to a lethal injection procedure must proceed as a habeas corpus action” and that “Nelson did not decide this question.”41 The Court emphasized that Nelson was not required to answer that ques- tion because “[t]he lawsuit at issue, as the Court understood the case, did not require an injunction that would challenge the sentence itself.”42 And the Court later stated again that “[t]he suit [in Nelson] did not challenge an execution proce- dure required by law, so granting relief would not imply the unlawfulness of the lethal injection sentence.”43 The Court concluded that the same was true in Hill: “Here, as in Nelson, [the petitioner’s] action if successful would not necessarily prevent the State from executing him by lethal injection.”44 The Court observed that the complaint did not generally challenge the death sentence but only the manner in which Florida intended to execute him. Notably, the petitioner conceded that there were other constitutional ways to execute him. And it appeared that even if the petitioner received the requested injunction, it would not “leave the State without any
38 Id. 39 Hill, supra note 24. 40 See id. 41 Id., 547 U.S. at 579. 42 Id. 43 Id., 547 U.S. at 580. 44 Id. Nebraska Advance Sheets 948 287 NEBRASKA REPORTS
other practicable, legal method of executing [the petitioner] by lethal injection.”45 The Court also observed that “Florida law [did] not require the department of corrections to use the challenged procedure.”46 Thus, the petitioner’s “challenge appear[ed] to leave the State free to use an alternative lethal injection procedure.”47 Under those circumstances, the Court concluded that § 1983 was an appropriate vehicle for the peti- tioner to bring his claim. Based on Ryan’s appellate brief, and as we understand it, he first argues that neither Nelson nor Hill hold that method- of-execution claims must be brought under § 1983. Instead, Nelson and Hill hold only that § 1983 was a proper avenue (but not necessarily the only one) to bring those particular claims, because they did not fall within the “core” of habeas corpus. Ryan argues that nothing would have prevented those claims from being brought as a federal habeas claim. In other words, Ryan argues that method-of-execution claims, even if proper under § 1983, can also be brought in federal habeas. To the extent that Moore concluded otherwise, Ryan claims we erred. We first note that whether Ryan’s position is correct is unclear. The federal circuit courts, following Nelson and Hill, are split on whether method-of-execution claims must be brought under § 1983.48 And more broadly, the federal circuit courts are split on the overlap, if any, between habeas corpus and § 1983. While it is clear that a claim which falls within the “core” of habeas corpus is not cognizable under § 1983,49 what is not so clear is whether a claim that is cognizable under § 1983 (falling outside the “core” of habeas corpus) may still be brought in federal habeas; in other words, whether federal habeas is limited to “core” claims. The U.S. Supreme Court
45 Id. 46 Id. 47 Id., 547 U.S. at 580-81. 48 Compare, e.g., Adams v. Bradshaw, 644 F.3d 481 (6th Cir. 2011), with Tompkins v. Secretary, Dept. of Corrections, 557 F.3d 1257 (11th Cir. 2009), and Rachal v. Quarterman, 265 Fed. Appx. 371 (5th Cir. 2008). 49 See Nelson, supra note 23. Nebraska Advance Sheets STATE v. RYAN 949 Cite as 287 Neb. 938
has not answered that question.50 And the federal circuit courts are split on that issue.51 More important, even assuming Ryan is correct, we fail to see how this is relevant to whether Ryan’s claims are cogni- zable in postconviction. If a claim is proper under both federal habeas and § 1983, then it is not proper under postconviction. This is because a claim which could be brought under both federal habeas and § 1983 falls outside the “core” of habeas corpus. That is, it does not attack the fact of the conviction or the duration of the sentence.52 Such a claim, even if meri- torious, would not render the judgment void or voidable, as § 29-3001 requires. Only a claim which falls within the “core” of habeas corpus could be cognizable in postconviction; so whether a method-of-execution claim that is proper under § 1983 is also proper under federal habeas is irrelevant to the issue at hand. Ryan also argues that Nelson and Hill implied that under certain circumstances, a method-of-execution claim could be viewed as an attack on the sentence itself. If that were so, then the claim would fall within the “core” of habeas corpus and, by analogy, would be cognizable in postconviction. Ryan argues that Nelson and Hill outlined what those circumstances would be; essentially, where the challenged method of execu- tion is statutorily mandated and, as a result, the State has no practicable alternative procedure to implement the death pen- alty. Ryan argues that those circumstances are present here, where the procedure is effectively mandated by statute,53 and that if the State were restrained from executing him under the current protocol, it would be unable to easily implement an alternative lethal injection procedure. This was not the case in Moore, so Ryan argues that it does not control and that
50 See Aamer v. Obama, 742 F.3d 1023 (D.C. Cir. 2014). 51 See id. (collecting cases). Compare, also, McNabb v. Commissioner Ala. Dept. of Corrections, 727 F.3d 1334 (11th Cir. 2013), with Docken v. Chase, 393 F.3d 1024 (9th Cir. 2004). 52 See Nelson, supra note 23. 53 See Lariat Club v. Nebraska Liquor Control Comm., 267 Neb. 179, 673 N.W.2d 29 (2004). Nebraska Advance Sheets 950 287 NEBRASKA REPORTS
because his claims are effectively attacks on his sentence, they are cognizable in postconviction. We disagree. We acknowledge that Nelson and Hill inti- mated that, under certain circumstances, a method-of-execution challenge might be considered an attack on the sentence (and therefore cognizable only in federal habeas, and by analogy, in postconviction).54 But although the Court intimated that, it did not explicitly hold that. Instead, in Nelson, the Court stated that if the challenged procedure were statutorily required, there “might [be] a stronger argument that success on the merits, coupled with injunctive relief, would call into question the death sentence itself.”55 And in Hill, the Court noted that under the circumstances, “injunctive relief could not be seen as bar- ring the execution of [the petitioner’s] sentence,” and later noted that “[i]f the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper.”56 So, we do not see Nelson and Hill as clearly holding that where the challenged procedure is statutorily man- dated, a method-of-execution claim is effectively an attack on the sentence. More important, regardless what the U.S. Supreme Court has intimated in Nelson and Hill, we continue to adhere to the view that a method-of-execution claim cannot be considered an attack on the sentence itself. To be sure, as the Court stated in Nelson, “imposition of the death penalty presupposes a means of carrying it out,” and when a procedure is statutorily required and found unconstitutional, replacing it with a constitutional one “impos[es] significant costs on the State and the adminis- tration of its penal system.”57 And it is also true that the State “retains a significant interest in meting out a sentence of death in a timely fashion.”58
54 See, Hill, supra note 24; Nelson, supra note 23. 55 Nelson, supra note 23, 541 U.S. at 645 (emphasis supplied). 56 Hill, supra note 24, 547 U.S. at 581-82 (emphasis supplied). 57 Nelson, supra note 23, 541 U.S. at 644. 58 Id. Nebraska Advance Sheets STATE v. RYAN 951 Cite as 287 Neb. 938
But that does not change the fact that the death pen- alty, properly imposed, is plainly constitutional.59 Nor does it change the fact that a method-of-execution claim “does not directly call into question the ‘fact’ or ‘validity’ of the sentence itself—by simply altering its method of execution, the State can go forward with the sentence.”60 Granted, if it’s statutorily required (as it effectively is here), it would take some time to adopt a new procedure; but in our view, that does not affect the validity of the sentence, only the time it takes to carry it out. And unless and until the U.S. Supreme Court clearly holds otherwise, on a constitutional basis, we will continue to fol- low our holdings in Moore (and Torres, Ellis, and Mata) that a method-of-execution claim, even if successful, would not ren- der the judgment void or voidable. Such claims are therefore not cognizable in postconviction.
CONCLUSION We affirm the district court’s order dismissing Ryan’s motion without an evidentiary hearing, because Ryan’s motion failed to state a claim for postconviction relief. Ryan’s sec- ond claim had no legal basis, and Ryan’s other claims were method-of-execution claims, which were not cognizable in postconviction. Affirmed. Cassel, J., not participating.
59 See, e.g., Kansas v. Marsh, 548 U.S. 163, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006). 60 Nelson, supra note 23, 541 U.S. at 644.