“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Eleventh Circuit judge Barbara Lagoa cast the deciding vote to dismiss a challenge to the method of execution in a death penalty case and make it more difficult to bring such cases in Georgia, Alabama, and Florida The December 2020 decision is Nance v Commissioner.
Michael Nance, a death row prisoner in Georgia, filed suit contending that, as applied to his unique medical condition, the state’s standard lethal injection protocol, or any execution by lethal injection as authorized under state law, would cause him “excruciating pain” and would thus violate the Eighth Amendment. He filed suit under the general federal civil rights statute, 42 U.S.C. sec 1983 and alleged, as required in such a case, that there were alternative methods of execution that would not cause such pain, including even the firing squad. A district court dismissed the case, and it went to the Eleventh Circuit.
With Trump judge Lagoa providing the deciding vote, the appellate court agreed that the case should be dismissed, but for a very different and troubling reason. Although the majority acknowledged that such challenges to methods of execution had been brought and resolved before, it claimed that the Supreme Court had “mentioned the possibility” that a claim like Nance’s, which contended that avoiding an Eighth Amendment violation would require use of a method of execution not currently authorized under the state’s law, “might not be cognizable” under sec 1983. Based on the alleged suggestion by the Supreme Court and its own interpretation of precedent, the majority ruled that a claim like Nance’s “is not” able to be brought under sec 1983.
Instead, the majority ruled, Nance’s complaint must be “reconstrued” as a petition for a writ of habeas corpus under federal law. Since Nance had previously brought a habeas case questioning the validity of his conviction, the majority went on, this would be the “second or successive” habeas case brought by Nance, and federal law makes clear that a person can file only one federal habeas petition unless special permission is granted. Nance, of course, did not seek such permission in this case, since he had filed a federal civil rights cases under sec 1983. The majority ruled that Nance’s case would not have fallen into one of the narrow exceptions that allows filing of a second habeas petition anyway, vacated the decision below, and ruled that Nance’s complaint must be dismissed, without any consideration on the merits, for lack of jurisdiction because it effectively was an impermissible “second” habeas petition.
Judge Beverly Martin strongly dissented. She noted that the majority had “blindsided” the attorneys in the case by raising the habeas issue on its own, and that the court’s decision to “construe” the complaint as a habeas petition was clearly “error under Eleventh Circuit precedent” and effectively overrules such precedent. In fact, she went on, the majority could point to “no concrete holding” in either the Supreme Court or the Eleventh Circuit that “supports today’s decision,” and precedent in both courts is to the contrary. The majority’s ruling, Martin continued, “ignores” the principle that a lower court “may not anticipate that the Supreme Court will overrule its own precedent” when it has not actually done so, particularly when based on nothing more than a “parenthetical” and speculative comment by the Court.
Judge Martin went on to point out that the majority’s ruling would “sow confusion” and “chaos” for prisoners on death row in Georgia, Alabama, and Florida, the states covered by the Eleventh Circuit. Instead of “predictable and reliable processes,” she continued, such prisoners “can no longer be certain” about the “proper procedure for bringing a method-of-execution claim,” and those that have previously challenged their conviction through a federal habeas proceeding may find they have no such procedure available at all. There was simply “no basis,” Martin concluded, for the majority’s “drastic action.”
Judge Martin also explained that if the majority had properly analyzed Nance’s case, it would have found the district court’s decision erroneous. The lower court had purported to dismiss Nance’s complaint as a matter of law, she continued, but it improperly made “factual findings” based on no evidence, such as its statement that any pain he would suffer “would be de minimis.” Nance had “properly alleged”, Martin wrote, that he would suffer excruciating pain from lethal injection and that there were “feasible and readily implemented” alternatives, so that he should have had the chance to prove his claims.’
As a result of the majority’s decision, however, Judge Martin pointed out that “this panel has deprived him of a claim he had every right to pursue,” and Nance’s “execution will arrive more swiftly, and without his method-of-execution claims ever having been examined” on the merits. In addition, Lagoa’s deciding vote will create serious problems for all death row prisoners in the 11th Circuit who seek to raise claims that the state’s chosen method of execution is unconstitutional.
Update: On April 20, 2021, the full Eleventh Circuit denied a request to rehear the case, in which Lagoa and at least Trump judge Newsom joined. Judge Wilson again dissented, joined by two other judges, and pointed out that the court was again refusing to “listen to the Supreme Court” on this important issue