in re:Lewis Williams v.

RECOMMENDED FOR FULL-TEXT PUBLICATION district court treated petitioner*s complaint as a second, or Pursuant to Sixth Circuit Rule 206 successive, petition1 and transmitted it to the court. ELECTRONIC CITATION: 2004 FED App. 0058P (6th Cir.) File Name: 04a0058p.06 The § 1983 action challenging the method of administering drugs at his execution is, as he concedes, to be treated as a second habeas action under current Sixth Circuit decisions. UNITED STATES COURT OF APPEALS The majority of the panel would deny permission to file a FOR THE SIXTH CIRCUIT second habeas on the grounds presented. They have never IN THE MATTERS OF: LEWIS WILLIAMS, been presented to the state court, so there has been no JR. AND JOHN GLENN ROE exhaustion. The affidavits in support of a preliminary _______________________________________________ injunction, in essence, state that if lethal injection is not administered properly, petitioner could experience severe pain without displaying any sign of it. Responsive affidavits UNITED STATES COURT OF APPEALS detailing the procedure indicate that the concern expressed by petitioner is so unlikely as to be immeasurable. FOR THE SIXTH CIRCUIT _________________ Petitioner essentially bases his request for a stay of execution on the Supreme Court having granted certiorari in IN RE LEWIS WILLIAMS, JR. X Nelson v. Campbell, No. 03-6821, 2003 WL 22327593, 72 Petitioner-Appellant - USWL 3363 (Dec. 1, 2003). Nelson involves a case - involving a prisoner facing the death penalty whose - No. 04-3014 peripheral veins were unavailable and who had to be sedated > through the central venous system. The state in Nelson chose - the “cut down” technique which allegedly requires more N experience and medical training than the usually-performed per cutaneous technique. The Court granted certiorari to answer the following question: Filed: January 12, 2004 Whether a complaint brought under 42 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks to stay his BEFORE: KENNEDY, SUHRHEINRICH and MOORE, execution in order to pursue a challenge to the Circuit Judges procedures for carrying out his execution, is properly KENNEDY, Circuit Judge. Petitioner Lewis Williams filed recharacterized as a habeas corpus petition under this §1983 action in the district court challenging the method 28 U.S.C. § 2254? of administering the lethal injection of drugs at his execution as a constitutional violation of his right to be free from cruel and unusual punishment and seeking an injunction to postpone his execution scheduled for January 14, 2004. The 1 The complaint also sought similar relief for John Glenn Roe scheduled for execution February 3, 2004.

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The Court has also acted on at least two cases involving sodium is not administered for a sufficient length of time to similar last-minute challenges to the method of execution of complete the other steps of the procedure, petitioner will by injection, both from the Fourth Circuit. In Rowsey v. Beck, suffer severe pain. A lay person who experienced this No. 04-6073 (4th Cir. Jan. 8, 2004), motion to vacate granted, difficulty describes the pain in her affidavit. In response, the Beck v. Rowsey, 504 U.S. __, 2004 WL 40382 (Jan. 8, 2004), state submits an affidavit from an extremely well-qualified the court vacated the stay granted by the Fourth Circuit. In physician explaining why, in the dose to be used by the state, Reid v. Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003), two (2) grams, the condition described by plaintiff*s expert motion to vacate stay denied, Johnson v. Reid, 504 U.S. __, will almost certainly not occur. He notes that when thiopental 2003 WL 22970950 (Dec. 18, 2003), the district court had sodium is commonly used for general anesthesia in surgery, granted an injunction staying an execution. The court of it is normally administered in a dose of 300 to 400 appeals affirmed. The Supreme Court denied the state*s milligrams. motion to vacate. Of most relevance to the present petition, however, is the Court*s denial of application for stay of Petitioner’s motions for remand to the district court, for execution in Zimmerman v. Johnson, 2003 U.S. Lexis 9199, preliminary injunctive relief and for stay of execution are 72 USLW 3406 (Dec. 15, 2003). In Zimmerman, the Fifth DENIED. Circuit affirmed the dismissal of the action on the procedural ground that § 1983 is not an appropriate vehicle for In order that petitioner have counsel to pursue any possible challenges to the method of execution and held that applicant habeas relief from the order, Stephen A. Ferrell is appointed should have proceeded by applying for a writ of habeas to represent petitioner on such proceedings. corpus. The four Justices that dissented from the denial of stay stressed that the Court should stay execution until Nelson was decided. The majority, however, clearly disagreed. We understand this decision to mean that this Circuit is free to follow its prior precedent with regard to this question until the Supreme Court issues its decision in Nelson. Accordingly, the majority of the panel is of the opinion that we should continue to follow Sixth Circuit precedent in In re Sapp, 118 F.3d 460, 464 (6th Cir. 1997) and treat this case as a second, or successive, petition. The district court properly transferred the case as filed to this court so it could pass on it as a request for a second petition. We decline to permit the claim to be filed as a second petition. It has never been presented to a state court. Indeed, petitioner does not seriously claim it meets the requirements for a second petition. Petitioner asks that we stay our decision to await the decision of the Supreme Court in Nelson. He proffers affidavits from a physician who states that if thiopental

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In re: Lewis Williams, Jr.; No. 04-3014 the failure to require a continuous infusion of thiopental places the condemned inmate at a needless and SUHRHEINRICH, Circuit Judge, concurring. I concur significant risk for the conscious experience of paralysis in Judge Kennedy’s opinion. However, I would simply direct during the excruciating pain of both suffocation and the the Warden to carry out the execution in the manner intravenous injection of potassium chloride. advocated by the petitioners’ expert. The petitioners do not challenge the fact of their execution; they challenge only the Motion to Stay and Abey Proceedings, at 13 (quoting Heath method currently employed by the State of Ohio. By affidavit Affidavit ¶ 17). they have proposed an alternative method which they advocate does not constitute cruel and unusual punishment. If the Warden is ordered to follow the method advanced by The affidavit of the petitioners’ expert, Dr. Mark J.S. Heath, the petitioners’ chosen expert, then the procedural question which is incorporated into the petitioners’ “Motion to Stay of whether the claim is properly considered a § 1983 action or and Abey Proceedings,” states in relevant part: a successive habeas petition will be moot, as the petitioners would have received the relief that they request. J) The benefits of thiopental in the operating room engender serious risks in the execution chamber. Based on the information I have available to me concerning Ohio’s execution protocol, a two (2) gram dose of sodium thiopental is apparently administered in a single injection from a single syringe. By contrast, based on my research and the research of others into the procedures for executing human beings by means of lethal injection, the original design of the lethal injection protocol called for the continuous intravenous administration of an ultrashort-acting barbiturate. Based on my research and the research of others, the central elements of the lethal-injection procedure used in Ohio is similar to the one adopted many years ago in Oklahoma (which, it appears, many states used as a model without substantive independent research). Oklahoma requires the “continuous intravenous administration of an ultrashort-acting barbiturate” (Oklahoma Statutes, Title 22 Criminal Procedure, Chapter 17 part 1014A). It does not appear that Ohio’s protocol includes this “continuous” requirement. The use of a continuous administration of the ultrashort- acting barbiturate is essential to ensure continued and sustained unconsciousness during the administration of pancuronium and potassium chloride. It is my opinion based on a reasonable degree of medical certainty that

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No. 04-3014, In re Lewis Williams, Jr. one from North Carolina, pending the Supreme Court’s decision in Nelson after those prisoners brought § 1983 KAREN NELSON MOORE, Circuit Judge, dissenting. claims apparently identical to Williams’s. See Reid v. I believe that the proper course of action is to grant the Johnson, No. 03-7916 (4th Cir. Dec. 17, 2003) (order preliminary injunction staying the execution of Williams. granting preliminary injunction); Rowsey v. Beck, No. 04- The Supreme Court’s grant of certiorari in Nelson v. 6073 (4th Cir. Jan. 8, 2004) (order denying motion to vacate Campbell, No. 03-6821, 2003 WL 22327593, 72 U.S.L.W. stay of execution granted by the district court). The Supreme 3363 (Cert. Granted Dec. 1, 2003), calls into question our Court denied a motion to vacate the stay in Reid, Johnson v. decision in In re Sapp, 188 F.3d 460 (6th Cir. 1997), upon Reid, 504 U.S. ____, 2003 WL 22970950 (Dec. 18, 2003), yet which the district court relied in transferring the action to us it vacated the stay of execution in Rowsey, over the dissent of as a second or successive habeas petition pursuant to 28 four Justices. Beck v. Rowsey, 504 U.S. ____, 2004 WL U.S.C. § 1631. In Sapp, a panel of this court held that a 40382 (Jan. 8, 2004). The disparate treatment of these two challenge to a method of execution brought as an action under cases by the Supreme Court is difficult to reconcile given 42 U.S.C. § 1983 constitutes a habeas corpus petition. Sapp, their similarity; the district court in Rowsey stated that the 188 F.3d at 464. Sapp relied upon an earlier Supreme Court issue there was “factually and procedurally similar, if not decision, Gomez v. United States Dist. Ct. for the N. Dist. of identical” to the issue in Reid. Rowsey v. Beck, No. 5:04-CT- Cal., 503 U.S. 653, 653-54 (1992), in reaching its decision. 04-BO, at 4 (E.D.N.C. Jan. 7, 2004). The Supreme Court’s Now, the Supreme Court has undertaken to resolve the denial of an application for a stay of execution in Zimmerman following question: “Whether a complaint brought under 42 v. Johnson, 2003 U.S. Lexis 9199, 72 U.S.L.W. 3406 U.S.C. § 1983 by a death-sentenced state prisoner, who seeks (Dec. 15, 2003), does not provide any further guidance. to stay his execution in order to pursue a challenge to the Without further development of the reasons for the Supreme procedures for carrying out the execution, is properly Court’s actions, we should exercise prudence and caution in recharacterized as a habeas corpus petition under 28 U.S.C. the face of ambiguity when the consequences of our decision § 2254?” Nelson, 2003 WL 22327593, at *1 (emphasis have such gravity. added). The Supreme Court’s ruling could directly overrule Sapp, confirm the earlier high court holding upon which Sapp At this stage, the question of whether Williams has properly relied, or reach some middle ground, but naturally we will not filed a second or successive habeas petition pursuant to the know the answer to this question for several months. provisions of 28 U.S.C. § 2244(b)(2)(A)-(B) is irrelevant because the predicate issue of whether his § 1983 claim is It would be inappropriate and unjust to permit Williams’s properly construed as a second or successive petition is execution to occur when the Supreme Court has yet to decide pending before the Supreme Court. Equally unimportant is a whether Williams has a right to present his claim as a § 1983 consideration of the merits of Williams’s § 1983 action — action. The Supreme Court, the Sixth Circuit, and other whether the State of Ohio’s procedures for lethal injection, circuits have all granted stays of execution when the Supreme which include the allegedly improper use of the barbituate, Court has taken a case to resolve an important issue germane thiopental sodium, and the administration of a neuromuscular to the action. McFarland v. Scott, 512 U.S. 849, 853 (1994); blocking agent, pancuronium bromide, that is banned for Selvage v. Collins, 494 U.S. 108, 109 (1990); Steffen v. Tate, veterinary use by several states, constitute a cruel and unusual 39 F.3d 622, 623 (6th Cir. 1994); Mobley v. Head, 306 F.3d punishment in violation of the Eighth Amendment. The 1096, 1097 (11th Cir. 2003). Recently, the Fourth Circuit resolution to this question is not appropriately considered stayed the execution of two prisoners, one from Virginia and now; if the Supreme Court’s forthcoming decision in Nelson

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v. Campbell demonstrates that Williams’s action is a § 1983 NO. 04-3014 action and not a second or successive habeas petition, the district court must first consider his claim. In any event, the UNITED STATES COURT OF APPEALS contrasting views of the physicians’ affidavits presented by FOR THE SIXTH CIRCUIT Williams and the State of Ohio serve to demonstrate a serious question regarding the merits. Nonetheless, here we simply must decide whether Williams’s execution can go forward IN RE: JOHN GLENN ROE given that the Supreme Court may determine that Williams has the opportunity to present his grievance before the district Petitioner-Appellant court as a § 1983 action. It should not. v. In the interest of procedural fairness, I would grant the motion for a preliminary injunction to stay the execution and ______________________________________/ hold the case in abeyance. It would be cause for great regret if Williams were executed on Wednesday morning only to Filed: January 12, 2004 have the Supreme Court determine several months later that BEFORE: SUHRHEINRICH, SILER, and CLAY, Williams in fact deserved a chance to pursue his action in Circuit Judges. federal district court. Petitioner John Glenn Roe filed joint motions with Lewis Williams, Jr. to stay and abey proceedings and for preliminary injunctive relief for stay of execution. Because these are habeas proceedings, we address each of the petitioners’ motions separately. We hereby adopt in this case the reasoning and the result of the majority opinion authored by Judge Kennedy and concurred in by Judge Suhrheinrich in the matter of In re: Lewis Williams, Jr., issued on January 12, 2004. We further adopt the concurring opinion of Judge Suhrheinrich in the Williams matter. Thus, for the reasons stated in the those opinions, Petitioner John Glenn Roe’s requests for a stay and abeyance and for preliminary injunctive relief are DENIED.

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CLAY, Circuit Judge, dissenting. No. 04-3044 I hereby dissent from the order and opinion of the majority UNITED STATES COURT OF APPEALS in the instant case for the reasons expressed by Judge Moore’s FOR THE SIXTH CIRCUIT dissent in In re Lewis Williams, Jr., No. 04-3014.

LEWIS WILLIAMS, JR., et al.,

Plaintiffs -Appellants AMENDED v. O R D E R2 ROBERT TAFT, et al.,

Defendants - Appellees

Filed: January 15, 2004

Before: BOGGS, Chief Judge; KENNEDY, MARTIN, S U H R H E IN R ICH, BAT CHE LDE R , DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, and ROGERS, Circuit Judges This matter comes before the court upon the petition of the plaintiffs-appellants for initial hearing en banc of case No. 04- 3044 and a motion for stay of execution, and the motion of the defendants-appellees for dismissal of the appeal. A majority of the non-recused judges in regular active service having voted to grant the petition for hearing en banc, the petition is GRANTED and the appeal is referred to the en banc court for further consideration.

2 This order was initially entered on January 13, 2004. It was amended on January 15 , 200 4 to reflect the jo inder in Judge Clay’s dissenting opinion of the several judges noted as having done so. In a ll other respects, the amended o rder is identical to the initial order.

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Less than a majority of the court having voted in favor of Nos. 04-3044/3066 either the motion to dismiss the appeal or the motion to stay execution, those motions are hereby DENIED. UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CLAY, Circuit Judge, dissenting, joined by MARTIN, DAUGHTREY, MOORE, and COLE, Circuit Judges. I dissent from the order denying the motion to stay execution JOHN GLENN ROE, in Williams v. Taft, No. 04-3044, because the vote was illegal Plaintiff - Appellant under 28 U.S.C. § 46(c). Section 46(c) provides, in relevant part, that an en banc court “shall consist of all circuit judges v. ORDER in regular active service …, except that any senior circuit judge of the circuit shall be eligible … to participate … as a ROBERT TAFT, Governor, et al., member of an in banc court reviewing a decision of a panel Defendants - Appellees of which such judge was a member.” 28 U.S.C. § 46(c) (emphasis added). In other words, the statute expressly circumscribes a senior circuit judge’s ability to participate in Filed: January 30, 2004 an en banc proceeding by limiting that participation to the review of the panel’s decision from which the en banc review Before: BOGGS, Chief Judge; MARTIN, BATCHELDER, arose. Here, all that is presently before the en banc court is a DAUGHTREY, MOORE, COLE, CLAY, motion to stay Williams’ execution, not the merits of the GILMAN, GIBBONS, ROGERS, and COOK, preceding panel decision. Accordingly, the statute does not Circuit Judges permit Judges Kennedy and Suhrheinrich to participate in the vote on the motion to stay. To the extent the Sixth Circuit A majority of the non-recused judges in active service Rules, the Sixth Circuit Internal Operating Procedures or having voted sua sponte to reconsider and rescind the order internal Court Rules might be interpreted to grant my two of January 13, 2004, granting hearing en banc in Case No. 04- colleagues the right to vote, 28 U.S.C. § 46(c) is paramount. 3044, all pending motions and filings are referred in the first This misapplication of the statute has resulted in an outcome instance to the assigned panel, for such action as it finds contrary to law inasmuch as the requested stay would have appropriate. been granted in the absence of the votes cast by Judges IT IS SO ORDERED. Kennedy and Suhrheinrich. Moreover, this unlawful denial of the motion to stay has eviscerated the results of the poll of the active judges granting en banc review. Without a stay, the en banc review authorized by § 46(c) will never take place. ENTERED BY ORDER OF THE COURT ________________________________ Leonard Green, Clerk

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Danny J. Boggs, Chief Judge, concurring in the issuance CLAY, Circuit Judge, dissenting, joined by MARTIN, of the court’s Order. There could be some controversy over DAUGHTREY, and COLE, Circuit Judges. Let us be the extent to which the appeal initially filed “jointly” by Mr. clear on what has just transpired. This Court extricated the Williams and Mr. Roe on January 13 should have been treated appeal relating to Petitioner John Roe’s claim under 42 as a single matter, even though it clearly dealt with matters U.S.C. § 1983 from Case No. 04-3044 in which en banc considerably, if not totally, identical to those that had been review had already been granted on January 13, 2004; dealt with by separate death-penalty panels on January 12. assigned it a new case number; and conducted a vote on However, this court chose, without ultimate objection, to whether to rescind the January 13 decision to hear the appeal treat Roe’s status as being an appellant within the “initial en banc. The adoption of this procedure, and the ensuing vote hearing en banc” granted by the non-recused active members to grant the rescission by a six to five vote, has nullified the of the court. Thus, at a minimum, the appeal lay within the votes of the non-recused active judges cast on January 13 and competence of the en banc court, and the en banc court was has created the appearance of manipulation and impropriety. free, on motion by a judge of that court, to reconsider and Accordingly, I dissent. rescind its previous action. In Williams v. Taft, Case No. 04-3044 (6th Cir. Jan. 13, To the extent that Judge Clay challenges the decision of a 2004), Lewis Williams and John Roe filed a complaint under judge to vote rather than to recuse on a specific matter, that is 42 U.S.C. § 1983 challenging execution procedures. The a matter within the discretion of the individual judge. The district court refused to entertain the lawsuit, construing it as court has no power to make a “decision to permit Judge Cook second or successive habeas corpus petitions that could not be to participate in the instant vote,” nor to prevent her from heard in the district court without the prior approval of this participating. To the extent that I understand the matter, Court. After the district court transferred the matter to this Judge Cook never had any connection whatsoever with any Court, and Williams’ and Roe’s purported habeas claims were matters concerning John Glenn Roe in her previous service assigned to separate three-judge panels, Williams and Roe on the Ohio Supreme Court. Lewis Williams is no longer petitioned for initial en banc adjudication of the district alive, and thus no matter concerning him can impact the court’s decision that effectively dismissed their §1983 claims. consideration of Roe’s case. There is thus no reasonable At that point, this Court arguably had the option of deeming ground to question her decision to vote on the matter that was Roe’s en banc petition as duplicative of, or superseded by, the properly before the judges of the en banc court. three-judge panels’ review, but did not do so. This Court also arguably had the option of uncoupling Williams’ and Roe’s respective § 1983 claims for purposes of appellate review, but it chose not to. Instead, this Court established that appellate review of Williams’ and Roe’s respective § 1983 claims would be considered jointly under a unitary case number, separate and apart from the appeal considered by the three- judge panels. A poll of the non-recused, active judges was then conducted on whether to hear this case en banc. By a six to four vote on January 13, the Court granted the petition for initial hearing en banc. Judge Cook did not participate in that vote, having recused herself on her own initiative.

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Prior to this Court’s vote to rescind the vote of January 13, Roe was necessarily influenced and impacted by the Court’s the only issue left open was Roe’s motion to stay the deliberations in Williams from which Judge Cook recused execution, which had been a joint motion with Williams. For herself. The entire situation suggests impropriety. the reasons stated in my dissent in Case No. 04-3044, the vote on the motion to stay was improper under 28 U.S.C. § 46(c) Without Judge Cook’s vote, the vote to rescind would have due to the participation of Senior Judges Kennedy and failed on a tie vote and the en banc Court would have Suhrheinrich. But even assuming, arguendo, that their considered Roe’s appeal. Thus, the decision of this Court to participation had been proper with respect to Williams, it is conduct another vote on whether to hear Roe’s appeal en clear that that vote did not, and could not have impacted, Roe. banc, combined with Judge Cook’s participation in that vote, Judge Kennedy was not a member of the three-judge panel has created the perception that certain members of this Court that had adjudicated the successive petition issue with respect have manipulated the process to avoid, what was in their to Roe. Accordingly, to the extent the Court’s judgment of view, the unfavorable result of the January 13th poll. This January 13 denied Roe’s motion to stay the execution, that outcome unfortunately conveys the impression of a result- judgment should have vacated, and the non-recused, active oriented process rather than an orderly process which seeks to judges should have been polled on whether to grant Roe’s preserve the appearance and reality of due process. motion to stay the execution. This was not done. Even assuming it was technically proper for this Court to have voted on whether to rescind its action of January 13, I have grave concerns about this Court’s decision to permit Judge Cook to participate in the instant vote. As noted, on her own initiative, Judge Cook recused herself from the January 13 vote concerning Williams’ and Roe’s joint request for en banc review. After Williams was executed, however, Judge Cook indicated that she should participate in an en banc Court concerning Roe’s appeal because she had not previously considered any matters concerning Roe. I beg to differ. Judge Cook’s basis for recusal survived Williams’ execution because Williams’ and Roe’s appeals were intertwined. Most of the pleadings and briefs pertaining to Roe were joint efforts with Williams. Judge Cook necessarily read and considered these papers in considering her vote on the rescission. In addition, Judge Cook was privy to the intra- Court communications and deliberations concerning Williams’ appeal. Had this Court been aware that Judge Cook was going to “un-recuse” herself after Williams’ death, precautions would have been (or should have been) taken to preclude her receipt of any pleadings or communications concerning Williams. This was not done either. Needless to say, Judge Cook’s consideration of how she should vote in

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Nos. 04-3044/3066 (4) Appellees’ Motion to Dismiss the Case for Lack of Jurisdiction; and UNITED STATES COURT APPEALS FOR THE SIXTH CIRCUIT (5) Appellees’ Renewed Motion to Dismiss Appeal for Lack of Appellate Jurisdiction.

JOHN GLENN ROE, The majority of the panel having previously concluded that Judge Graham properly transferred the § 1983 case to this Plaintiff-Appellant, Court as a request to file a second petition, and having concluded that Roe failed to meet the requirements for filing v. ORDER a second or successive petition under 28 U.S.C. § 2244(b)(2), and having no sound reason to revisit those rulings, we ROBERT TAFT, Governor, et al., HEREBY DENY Appellant Roe’s Renewed Motion to Set Aside Judgment and FURTHER DENY Roe’s Renewed Defendants-Appellees; Motion for Stay of Execution. Appellant Roe’s Motion to Expedite Appeal is GRANTED. Given the En Banc Court’s ________________________________________/ January 30, 2004 order reconsidering and rescinding the order Filed: February 2, 2004 of January 13, 2004, Appellant Roe’s Motion to Conform the En Banc Court to the Requirements of 28 U.S.C. § 46(c) is Before: SUHRHEINRICH, SILER, and CLAY, Circuit MOOT. Appellees’ Motion and Renewed Motion to Dismiss Judges. the Appeal are GRANTED.

On January 30, 2004, a majority of the non-recused judges CLAY, Circuit Judge, dissenting in part. I dissent from in active service voted sua sponte to reconsider and rescind the panel’s denial of the motion to stay the execution and the the order of January 13, 2004, granting hearing en banc in grant of the motion to dismiss the appeal. My reasons for Case No. 04-3044, and ordering that “all pending motions and dissenting are set forth in my dissent to the panel’s prior order filings are referred in the first instance to the assigned panel, of January 13, 2004, in Case No. 04-3044, and in my dissent for such action as it finds appropriate.” to the en banc Court’s order of January 30, 2004, in Case Nos. 04-3044/3066. Thus, presently before this panel are the following motions: ENTERED BY ORDER OF THE COURT (1) Appellant Roe’s Motion to Conform the En Banc Court to the requirements of 28 U.S.C.§ 46(c); /s/ Leonard Green ___________________________________ (2) Appellant Roe’s Motion to Set Aside Judgment and Clerk Renewed Motion for Stay of Execution; (3) Appellant Roe’s Motion to Expedite Appeal;

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