Does a claim challenging a state’s only method of execution constitute a habeas petition or a 42 U.S.C. 1983 action; and, if the claim does constitute a habeas petition, is that habeas claim successive if it was unripe when the original petition was filed?
This case asks the Supreme Court to determine whether a method-of-execution challenge constitutes a habeas petition or may be brought as a 42 U.S.C. Section 1983 petition. Petitioner Michael Nance brought a 42 U.S.C. Section 1983 petition alleging that Georgia’s lethal injection was unconstitutional. Michael Nance argues that method-of-execution claims are Section 1983 claims because they do not end or shorten imprisonment but attack the constitutionality of a given punishment or method of execution. Moreover, even if the claim is properly a habeas petition, Nance contends that it is not successive because method-of-execution claims are not ripe until execution is imminent. Respondent Timothy Ward, Commissioner of the Georgia Department of Corrections, counters that because there are no alternative methods of execution, Ward’s claim effectively bars execution—in other words, it is a habeas petition. Ward adds that Nance’s petition is successive because he already challenged this sentence, and no exceptions apply. This case will impact the timely implementation of justice, and constitutional challenges to state sovereignty and methods of execution.
Questions as Framed for the Court by the Parties
(1) Whether an inmate’s as-applied method-of-execution challenge must be raised in a habeas petition instead of through a 42 U.S.C. § 1983 action if the inmate pleads an alternative method of execution not currently authorized by state law; and (2) whether, if such a challenge must be raised in habeas, it constitutes a successive petition when the challenge would not have been ripe at the time of the inmate’s first habeas petition.
In 1993, Michael Nance ("Nance") robbed a bank in Gwinnett County, Georgia. Nance v. Commissioner, Georgia Department of Corrections, at 1203. Upon fleeing in his own car, the dye packets hidden in stolen cash exploded. Id. Nance then abandoned his car and crossed the street to stop a car backing out of the liquor store parking lot. Id. Nance killed the driver of the car, Gabor Balogh. Id. at 1203–1204.
In 1997, a jury convicted Nance of murder and sentenced him to death. Id. at 1204. After a new sentencing hearing, he was again sentenced to death in 2002. Id. The Georgia Supreme Court upheld Nance’s sentence on direct appeal, and later rejected another petition for collateral relief, or a habeas petition, in 2013. Id. The United States District Court for the Northern District of Georgia ("District Court”) denied Nance’s habeas petition, in which he contended that his imprisonment was invalid due to procedural error in the preceding trials. Id. The Court of Appeals for Eleventh Circuit (“Eleventh Circuit”) upheld the denial. Id. At this point, Nance had exhausted all his appeals for his death sentence.
In January 2020, Nance filed a 42 U.S.C. § 1983 civil-rights action (“Section 1983 claim”), in which individuals, asserting their constitutional rights have been violated by government actors, seek remedy in court. Id. Nance alleged that the Georgia’s lethal-injection protocol for the death penalty is unconstitutionally cruel and unusual punishment, likely to cause a “substantial risk of serious harm” in his specific circumstance. Id. at 1204; see also Baze v. Rees, 553 U.S. 35 (2008). Nance has “compromised” veins, which he argued would subject him to both excruciating pain as state executioners sought to find venous access and, if they did find access, painful leakage from the veins. Id. Therefore, Nance contended that his compromised veins create a substantial risk of serious harm during the execution process, in violation of the Eighth Amendment. Id. Nance further argued Georgia’s alternate methods to find his veins would not be humane. Id. at 1204. In addition, Nance alleged that his back medication has altered his brain chemistry in such a way to diminish the efficacy of the lethal injection and leave him in great pain during the execution. Id.
Nance proposed the firing squad as a feasible and readily implemented alternative method of execution that would significantly reduce the substantial risk of severe pain. Id. The Georgia Department of Corrections responded that Georgia statute only authorizes lethal injection, and that, moreover, Nance failed to establish facts sufficient to bring rise to a valid Eighth Amendment claim. Id. at 1205.
The District Court agreed with the Georgia Department of Corrections, ruling that Nance’s petition was untimely and that he failed to state a claim of relief around his venous-access theory. Id. The District Court further held that Nance, under the Eighth Amendment, failed to claim the facts necessary to establish “the requisite risk of suffering.” Id.
Upon appeal, the Eleventh Circuit determined that—because Nance alleged that all means of lethal injection are barred for him—his petition more closely resembled an argument that Nance could not be legally executed at all. Id. at 1203. As a result, the Eleventh Circuit held that his petition must be constructed as a habeas petition claiming that the execution could not be carried out. Id. Because Nance had already submitted a habeas petition, the Eleventh Circuit found that the claim at hand constituted an impermissible successive petition and must therefore be dismissed for lack of jurisdiction. Id.
On September 17, 2021, Nance filed a petition for certiorari to the Supreme Court, alleging a circuit split on the proper findings. Petition for a Writ of Certiorari, at 15. The Supreme Court granted certiorari on January 14, 2022.
CHARACTERIZATION OF THE FILING
Petitioner Michael Nance ("Nance") maintains there is an accepted, well-established distinction between habeas petitions and Section 1983 claims. Brief for Petitioner, Michael Nance at 23. Nance explains habeas petitions allow prisoners to challenge their imprisonment or execution and potentially obtain freedom or shorter sentences, whereas Section 1983 claims allow individuals to bring an action alleging deprivation of a constitutional right. Id. Moreover, Nance argues that habeas petitions are narrow in scope and challenge the validity of an execution or detention order while Section 1983 claims are broad in scope and challenge the “conditions of a prisoner’s confinement.” Id. at 24. As a result, Nance asserts that claims that do not seek to end or change the level of custody are Section 1983 claims, not habeas petitions. Id. at 24–25. Nance notes that the Supreme Court has previously classified method-of-execution claims as Section 1983 claims because they do not lead to release of a prisoner. Id. at 26. Nance asserts that the claim challenging Georgia’s method of execution is a Section 1983 claim because it does not assert that Nance’s death sentence is invalid. Id. at 27. If the action is successful, Nance notes, Nance will still face the death penalty, the method of execution will just be different. Id. Nance maintains that, even if a State will have to change its laws to comply, a method of execution ruling does not attack the validity of a state’s death penalty sentence. Id. at 28. Nance further argues that this interpretation comports with established precedent, like Bucklew v. Precythe (“Bucklew”), which found that prisoners do not have to plead alternate means of execution when challenging those currently allowed under state law. Id. at 32.
Respondent Timothy C. Ward, Commissioner of the Georgia Department of Corrections (“Ward”) counters that, if successful, there will be no method by which Nance can be executed. Brief for Respondents, Timothy C. Ward et al. at 14. Therefore, Ward contends, because the claim effectively bars the execution, Nance’s claim constitutes a habeas petition. Id. Any challenge that bars execution altogether, Ward argues, should not be considered a Section 1983 claim. Id. at 15. In Preiser v. Rodriguez (“Preiser”), Ward notes, the Supreme Court ruled against pleadings that are really habeas petitions in disguise, by using creative labels or implying the unlawfulness of imprisonment. Id. at 16. Ward asserts that the Preiser rule, which bars prisoners from using methods other than habeas to obtain release, applies to both imprisonment and orders of execution. Id. at 17. Wards adds that this rule was integrated into the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which reformed habeas petition procedures and prohibited successive petitions. Id. Regardless of whether state law may change in the future to permit a different method of execution, Ward contends that Nance’s attempt to bar execution right now constitutes a habeas petition. Id. at 22.
SUCCESSIVE HABEAS PETITIONS
Nance contends that, even if the Supreme Court rules that the action constitutes a habeas petition, the Supreme Court should find that Nance’s action is not a successive petition. Brief for Petitioner at 40. Nance notes that AEDPA does prohibit successive petitions by one prisoner, thus requiring all habeas claims to be filed as one petition; but, he argues, his is not successive. Id. Instead, Nance applies a two-prong framework to determine if a petition is successive: 1) if a late filing would result in abuse; and 2) a multi factored analysis that weighs AEDPA’s purpose as well as the goals of “comity, finality and federalism.” Id. at 41. Following the two-prong framework, Nance asserts, the current action should not be considered a successive petition. Id. at 47.
Nance adds that, even before enacting AEDPA, a method-of-execution claim would not have been considered successive according to the precedent of Banister v. Davis (“Banister”) and Panetti v. Quarterman (“Panetti”). Id. at 44. In Banister, Nance explains, method-of-execution claims were not considered successive because unripe method-of-execution claims did not constitute neglect or abandonment. Id. Additionally, Nance notes, a method-of-execution action is not a strategic attempt to delay the litigation process because execution must be imminent to raise the claim; accordingly, there is no abuse in failing to raise an unripe claim. Id. at 44. Moreover, Nance explains that in Panetti, the Court did not mandate raising unripe claims out of fear that these claims would burden the courts while providing little benefit. Id. If these claims were prohibited, Nance argues, prisoners may be subject to cruel and unusual state execution procedures without the opportunity for federal review. Id. This, Nance maintains, contradicts AEDPA’s goals and fosters unwanted practices for habeas petitions. Id. at 45, 47.
Ward explains that successive petitions are only permitted in narrow circumstances, including when there is new constitutional law or new factual evidence. Brief for Respondents at 35. Ward counters that there is not an exception for claims that were unripe at the time of filing and that Nance’s petition is clearly successive according to AEDPA and prior precedent. Id. Ward asserts that AEDPA promulgated a different framework for determining if a petition is successive: 1) any petition that does not “seek relief from the same judgment as a previous application;” and 2) simply continues a prior petition. Id. at 36. Ward highlights that this new test is more stringent than the two-prong framework Nance endorses. Id. For example, Ward notes, amended petitions and appellate briefs are not considered successive because they simply continue the initial petition. Id. at 38. Nance’s claim fails this test, Ward maintains, because he already challenged this sentence. Id. at 35. Ward contends that the two-prong test is easily applied and simple to follow. Id. at 43. The test, Ward maintains, should not take long to complete and ensures the sovereignty of states and “finality” of adjudication. Id. Ward argues that Nance’s version of the test is more complicated as it would force courts to make a factual determination at the beginning of every habeas case; accordingly, Nance’s rule would burden courts and cause delay. Id. at 44.
Further, Ward explains that the exception discussed in Panetti, which does not require raising unripe claims in initial petitions, is only meant to apply in cases with facts mirroring the facts in Panetti. Id. at 47. Panetti claims, Nance posits, are meant only to apply to claims stemming from Ford v. Wainwright (“Ford”). Id. at 46. Comparatively, Nance argues that Ford claims are cases that are categorically unripe because they require assessing the mental capacity of prisoners at the time of execution; therefore, successive habeas petitions are permitted in Ford and Panetti cases because prisoners must wait to bring these claims until execution is imminent. Id. Nance’s case, Ward asserts, does not raise a claim of mental incapacity, like the claims in Panetti and Ford, and, therefore, the narrow Panetti exception should not apply. Id. Moreover, even if the Panetti exception did apply, Ward adds, a petition challenging lethal injections is not one of the claim types that is always considered unripe unless execution is imminent. Id. at 48. Finally, Ward contends that Nance’s case had been ripe for a significant amount of time before any action was taken. Id.
ADMINISTRATION OF JUSTICE IN CAPITAL CASES
Legal Scholars, et. al. (“Legal Scholars”), in support of Nance, argue that states continue to change their execution methods and protocols: therefore, prisoners often do not know the method of execution when they file their habeas petitions. Brief of Amicus Curiae Legal Scholars, et. al., in support of Petitioner at 17. Legal Scholars assert that, by allowing prisoners to file Section 1983 claims directly, the unconstitutionality of that specific execution method can be directly addressed. Id. at 18. According to Legal Scholars, this creates a more efficient administration of justice because prisoners do not have to guess the execution method or re-litigate claims if a changed method is unconstitutional. Id. at 18–19. The American Civil Liberties Union, et al., (collectively “ACLU”) claim that just as prisoner’s health may change, state’s methods of execution can also change. Brief of Amicus Curiae American Civil Liberties Union, et al., in support of Petitioner at 20. The ACLU contends that Section 1983 petitions are proper for such challenges because they are flexible enough to allow prisoners to bring the claims when they arrive, and bring successive claims if methods change. Id.
The legal scholars Jonathan Mitchell and Adam Mortara (“Mitchell and Mortara”), in support of Ward, argue that habeas petitions are adequate because a prisoner cannot claim to rely on their circumstances changing after they file their habeas petition. Brief of Amicus Curiae Jonathan Mitchell and Adam Mortara (“Mitchell and Mortara”), in support of Respondent, at 6. Mitchell and Mortara contend that the finality of a state’s sentence should not suffer further attack, through Section 1983 claims in this instance, when a court of competent jurisdiction has found that the sentence is correct. Id. The State of Texas, as well as fourteen other states, (collectively “Texas”) point out that expanding Section 1983’s scope goes against the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA) goal of reducing delays to executions, especially in capital cases. Brief of Amicus Curiae Texas, et. al., in support of Respondent, at 5.
CONSTITUTIONAL CHALLENGES TO STATE SOVEREIGNTY
The ACLU, in support of Nance, posits that Section 1983 ensures prisoners may enter federal court to challenge a state method of execution. Brief of Amicus Curiae American Civil Liberties Union, et al., in support of Petitioner at 22. The ACLU also argues that some states bar prisoners from raising means of execution challenges in state postconviction or habeas petitions, which may risk the prisoner not having standing to raise the challenge in federal court. Id. at 25. Legal Scholars add that not allowing a reliable means for a prisoner to raise such challenges in federal court, prevents constitutional challenges to state execution methods. Brief of Legal Scholars, at 19. Further, Legal Scholars claim that, by allowing only one execution option, all challenges to execution would by default go through habeas petitions. Id. at 21. This, Legal Scholars claim, would severely limiting prisoner’s ability to raise the claim timely. Id. at 21. Legal Scholars contend that, by only allowing alternative methods not authorized already by the state to be raised in habeas petitions—normally filed years before any execution date—states are able to circumvent all challenges to their execution method by authorizing only one execution method. Id. at 20. According to Legal Scholars, the result could be states avoiding all review methods of their execution method. Id.
Texas responds that habeas petitions in the state court do not preclude federal constitutional protections, it just leaves the primary law enforcement responsibility with the state courts. Brief of Amicus Curiae Texas et. al., in support of Respondent, at 9. Additionally, Texas et. al. counters that there is no constitutional right to have constitutional claims heard in federal court. Id. at 10. According to Texas, Congress intended for state courts to have the first chance to rectify any constitutional violations. Id. at 9. Therefore, Texas asserts that allowing prisoners to sidestep state court with their constitutional claims frustrates state comity, federalism, and finality. Id. at 9–10. According to Texas, states have a sovereign interest in enforcing both their laws and their legally valid judgments. Id. at 14. According to Texas, the distinction between the federal supremacy found in Section 1983 and habeas’ goal of federalism, comity, and finality of judgments must be upheld. Id. at 7. Without such distinction, Texas argues that prisoners who contest the only method of execution create a type of gamesmanship to perpetually re-enter federal court alleging new facts. Id. at 13–14. Further, Texas asserts that changing the execution method requires the federal courts to order state legislative action, which is a significant intrusion on state sovereignty and comity. Id. at 16.
- Austin Sarat, Is the Supreme Court About to Allow Virtually Any Method of Execution?, Slate (March 28, 2022).
- Jordin S. Rubin, Justices to Hear Execution-Alternative Cases Over Lawsuit Rules, Bloomberg Law (January 14, 2022).