nats say ten minutes for rip i don't count so we're familiar with your cases we've read your briefs the authority cited in your priests and at least portions of the record so you should feel free to get straight to the heart of your argument we probably will have some questions for you as you know some written questions were posed to you in advance of this forum argument and if you're finishing an answer to a question from the court you may do so when the red light shines do be mindful of our time but you can never the less finish answering the question even if the red light us so will begin with you  us good morning made please the court mad freelander on behalf of the opponent michael nance mr nance appeals the district court's erroneous dismissal of his hundred i want to address the question raised by the court about two weeks ago which is whether section nine hundred and eighty three is the appropriate procedural vehicle for this going and it is mr nance does not dispute the constitutionality of his sentence of death rather he disputes the constitutionality of the method of his execution as applied to the core the supreme court and this court and now have made clear the method of execution challenges are cognizable in one thousand nine hundred and three and not abs the reason is that method of execution claims chose the means of carrying out a sentence and not the constitutionality of the death sentence itself  argument for the petitioner was a lethal injection could be carried out in a constitutional manner but not in the manner that the state and tended to do it as i understand mr nance his argument the problem is he appears to argue that there he cannot be executed by lethal injection at all  with i think you're on you're absolutely correct in saying nelson and then more recently in buckley judge justice corps which did raise this issue an apparent the tickle one thing it i wouldn't characterize nance's request for relief that he not be executed by lethal injection although that is a practical implication of it rather really requested is that he not be executed in an unconstitutional manner and i think that because it was one day that was a possibility correct your honor the issue was not actually before them in buckley because the nitrogen hoxsey alternative method was authorized by statute yet so my problem is what i'm trying to figure out as well whether what the supreme court has told us might be a problem and a different case is that this is the sample of the i understand your honor you know this is and i agree this is a case where front and center before the court is the notion that the alternative method is not statutorily prescribed and i think there are you know a couple of responses as to why this is not actually  is we have to look back at the history of method of execution claims particularly nelson and hill and it remember that the concern and no one else and was always lingering in the background was is the litigant using this method of a gentle reminder that litigants shall not use method effects as applied method of execution claims even when the alternative proposes not statue or statutorily prescribed that wasn't exactly a holding until that under present law language in any event i think there are two situations that would require a b s really st would be where all it again a firm of you affirmatively alleges that his sentence must be execution prescribed and then in his request for relief so that not only that the state should be enjoined from executing me by lethal injection but the state shall not execute me at all because there is no legally authorized method that you know this under present law language you know one reason being that it i mean let's be clear mr nance has done everything he was supposed to do here he has brought a sad you have to you have to propose a viable or if nothing which has been done here so it would be just if the state has a legitimate reason for not using that alternative which could it seems to me complaint i think your honor and again i understand your concern i think you know buckley was explicit holding was that the alternative proposed method does not  need to be authorized by state statute and giving it one hand you know it would not make sense to down got there because the court's on holding by saying all but by the way if you do that it needs i did the has the supreme court told us that it's wrong to do that your honor i agree with you are not present with what you said and i don't buckley where he addressed justice courses parent that equal the actual holding of saying that it doesn't need to be authorized by statute and making clear that firing squad is the very type of alternative method that should be was missouri and that state does not authorize firing squad by statute very few states do but justice kavanagh and not only that the attorney general missouri conceded that had the litigant alleged firing squad as the alternative method of execution that that would have been acceptable and that was in one thousand nine hundred and three when we had the attorney general conceding that and we have justice cavanagh recognizing that that would be an appropriate that fir squad be an appropriate alternative which is not authorized by state statute and that the claim was still cognizable under section one thousand nine hundred so that's probably the best authority but i think what just judge martin is is getting at is just discourse presence about this circumstance and use right and that is there is no case with the exact factual circumstance but i would disagree that the holding in those cases is limited  no reasonable it again would have brought this as an one as a as a hideous petition given the th circuit in progress and i think that's what justice martyr judge martin is getting at is mr nance is doing exactly what the th circuit and about that have been abrogated we're constantly trying to make sure that our precedents conform to supreme court precedent and that's what i'm concerned about you know i'm not i'm not in any way trying to  is this that circumstance and you agree with me none of our earlier precedents which have gone back and forth in terms of what the supreme court says the proper law has none of errors involved this materially simpler circumstance and i appreciate your honor i appreciate your concern and i don't think you're you know being hard on me it's you know i think we both wish just as course it should been a little clearer than simply we expect he will the state instead of georgia then can he they can still execute mr nance by legislative act there's no doubt the bigger constitution authorizes the general statutes regarding criminal punishment and the state of georgia would still be able to execute mr nantz but if mr nance and lo and let's see georgia says ok we're going to execute him by the subsequent claim challenging at the very proposed alternative method is unconstitutional or as prohibited by present law then that is eerily an attack on the what if you have a son of his death sentence and not a method of execution and i think i think that's an example of what justice courses was worried about was the litigant prevailing and then and then turning around stay and this is not some kind of talking mini quien invented by mr nance in fact the factual predicate giving rise to this as a part method of execution challenge coming from the government  correct because you say that there's something about your client's personal circumstances that have since changed made that current method oh in georgia unconstitutional as applied to him and when and the circumstances changed and how does this complaint do so i think the complaint does watch how when the circumstances changed it says explain lodges explicitly that in april what you're suggesting is that well we have to essentially we have to plead around the statute of limitations affirmed of the facts but now i think you have to plead in as applied challenge and i think we've more than done that your honor i think we have a when he became reasonably aware that his being his condition would render his constitution is execution unconstitutional combined with the increased use of you have a pound and all of that occurred less than a year before he filed the complaint and you know we can you can glean that from the complaint at all well well that that that's my concern don't you have some obligation to clean out this is a massive part challenge when that happens i think your honor we you your honor may it please the court i'm a name is clint malcolm i represent the apple e in this matter just to get directly to that st question from the court in its recent order our position would be  should be reconstructed as a b s petition based on our looking at the supreme court precedent in our interpretation of that precedent as i think it's been alluded to in appellant's argument here this morning this is a very unique circumstance that has not come up before directly to this court or any execution challenge mr friedlander says it should be read characterized in its proper time to read characterize it would be if the georgia be properly considered to be this competition what do you say about what your honor if you look directly to the language of the complaint and what you have to look at is what relief the complaint seeks and how that interacts with whether this is a challenge to the death sentence itself or just a more traditional nine hundred and eighty three dollars challenge to the manner in which it's carried out and the complaint i think indisputable eat pleads that the state of georgia cannot execute mr nance by lethal injection under current state law that lethal injection is the only data dorie means of execution in georgia and obviously as  you take it you're here you're saying you think it is partly construed as a b s petition that's not something the state has argued before but now candidly in response to the questions from  this may be exactly what judge justice corsets was talking about and if that's true then is it nd or successive well to go back to that st question just briefly on e e s after looking at it as i said this this is a unique circumstance it hasn't presented it so before so this is looking at the the rationale from the supreme court cases you mention nelson b campbell it will be mcdonald most recently buckley this is a circumstance where they are pleading not to bring it as well as i would you know that's not a court i would go that far because this is a unique circumstance and while the prior precedents are applicable of course to everyone but they are applicable to the circumstances in those cases lethal injection the same thing but i mean in the same token by the same token buckley doesn't address it either i mean you're distinguishing these other cases and they don't address this particular situation  have here but neither does buckley now that's correct buckley did not address that i think that it couldn't address it because this issue wasn't before it i think the opinion was looking down the road potentially to a circumstance like execution under state law and that's what we have here it's a unique circumstance there other states have alternative execution protocols on the books and under their state laws georgia as lethal injection that is the means of execution under state law and the this increases the likelihood of drag on the tubes going to spike this court finds the claim is false i mean you cannot properly do that as a district judge when you're construing can we would agree on what the correct legal standard is for rule twenty six dismissal yes the facts of the complaint are to be interpreted as truth however before you get to that point you have to flesh out legal conclusions and as the supreme court has said it is not enough just for the complain to you to plead a sort of formulate recitation of the elements in this case the th amendment violation that have to meet those two prongs of alternative i know they planted the firing squad was there's a protocol from utah but that is basically all they say and then they say also that the firing squad would cause mr nantz less pain than georg lethal injection and that is that it is in and of itself a conclusion and nothing more than a recitation of the elements your honor and that's what our supreme court has said it is not enough to survive a rule tobie six dismissal and that's the doctor could write medical person could see to use so that's the st time he becomes aware of this problem i understand that that is how it was pled and the complaint he also played that court to interpret the statute limitations is a very subjective sort of when we decide to become aware of the accrual of the two year statute of limitations and that's just not founded in in the law i mean if you look slow soli st at the  flame if you just take what he says in the complaint which is april two thousand and sixteen is when he starts taking the drug well he filed a complaint thirty years i think the drug claim is an easier one for you to respond going back to the bascule or condition issue th factual specificity in regards to why he couldn't have come become aware of that sooner because i know what i think i mean become aware of it yes because just as judge pryor alluded to i mean all he says is i was told by this prison official and i forget the month and year that this was when they when he became aware they would have problems accessing his veins to execute him by lethal injection that's all we know if that's all that has to be bled for an accrual of the statue of limitations then i mean that's that's what he pled but i would fleshed out certainly as you said in discovery could be fleshed out in a state a b s could be fleshed out and have you know federal habeas as well i mean i think if you this this is obviously a complaint and we're limited on the record that's before us and this nine hundred and eighty three as it was raised but this is obviously a death sentence and one who has gone through all levels of his conviction reversed review before this and i think it's very noteworthy too to point out that in his federal petition filed over seven years ago there were issues about intravenous drug use and problems with his veins raised in in a in an execution challenge and that a b s petition so this notion that this could never have been raised before is is is ludicrous quite honestly when you look at the totality of also relevant and i think on neglected answer the chief judge's question about the success of petition for him i'm going to let me i was going to come ok well i think that's relevant to today and as well because if the argument is secular success  it's it is i mean looking at the supreme court's decision and pinetti which dealt strictly with ford claims i don't think you can expand that and say categorically that execution challenges cannot be right at the time of the original a v s because there's no better evidence for that than looking at nance's original federal habeas petition re read raised execution challenges not only that he he raised challenges specific to the ones he's raised now as as applied in his nine hundred and eighty three complaint based on his i v drug use so this issue that these this condition is just become known to him is is is just not correct and i understand that we're limited in the record  before us on this this complaint however it does it is very relevant in regards to the question posed most recently whether this should be reconstructed as a b s because then if it should be as as right that this is properly considered an atheist petition then it seems to me that would be one of two possibilities for us one is to determine whether we can look at the record and determine and  say with confidence based on this record that this hate b s petition is nd or success or not or we would look at it and say you know we can't really say situations your honor i think in in this case there it would essentially be a legal conclusion right so there wouldn't be any i mean in regards to how can any was to be interpreted and it's rational and whether this these types of execution challenges are in and of themselves impossible to be right at the time of the original a b s so like i said i would stand on my argument that no they are not or any type of hypothetical heaviest claim that could be learned about after the original petition however that's i think the basis for the procedural requirements in the success of petition statute and those those would have to be put forth in a prime aphasia case made to this court through an application for a successive petition and then if this court believe that prime aphasia case had been made an order would be entered allowing the district court to consider it i don't think this rises to the level of a ford claim which is and which is inherently not ripe until the time of the execution i mean whether somebody is competent to be executed you know cannot be properly litigated until success i don't know that it's necessarily the the information your honor because i look to that one provision of the success of petition statute that's just one of the things that has to be met to warrant a success a petition which is the factual predi claim and i think that's that's what we're we're talking about and that would have to be shown through the proper channels in regards to to meet the success of petition requirements i think to to get around the entire success of petition rule like like in a ford type of claim and like this court has at least opined about in tompkins an execution delay type of challenge and both of those obviously deal with things that could not have been dealt with before the time of the execution we have a factual circumstantial least as it's planned in this complaint that the addition or appellant says he couldn't learn about until you know two thousand and nineteen i mean that is what they're not worried about until right now that that's what send the complaints and that's the factual predicate provision and that's they would have to make a case for that along with the other requirements of that statute for it to go forward as as a b s that would be my argument facts in regards to his condition and the use of the drug and how those would have potentially affect him in execution but when he gets to the alternative portion the complaint is truly bare barren of sufficient plausible factual pleading there is that they plead the utah protocol there are no details about the protocol included in the complaint it is simply surmised that georgia has enough weapons and enough people to carry out firing squad and i would suggest in this coronets that's simply not enough to plausibly say that it is beyond conceivability into in rises to the level of plausibility that the state of georgia just by saying that can carry out a firing i don't know that that in and of itself is enough your honor it may be but as you said if we were what is it then it's not that what is that's what i don't think that is one that is one of the factors there also be factors such as georgia's never carried out execution in that manner they've never attempted to there's only been three executions in that manner since nine hundred and seventy six all from one state so i think the the legitimate you know logical reasons i mean we haven't even got to the point of because of where we're at in this  case of pleading those defenses in an answer where the motion to dismiss stage which you've moved to dismiss for failure to state quite right yes that is that is correct your honor this was one of the arguments that was made in the district court right we did make that argument that there is that the complaint doesn't address that at all just like it it beyond the one date for the vascular condition becoming aware of complaint becoming aware of that there's nothing in the complaint to address that something that the court was making at five i don't think so your honor i think that that is a more of a legal issue that is not really disputed that there is a reason lethal injection is the primary  flacks to get him past his pleading burden under under the law in regards to that nd prong of the base glossop test and that's that's really what i would focus on in our briefing on before we got the most recent order in  adjudication of this motion to dismiss there is absolutely nothing in the complaint that plausibly pleads anything x as to why this and how this method of execution if georgia could infect carried out which it cannot would be cause him less severe pain than lethal injection just that it's virtually in you know painless and a swift death based on you know you toss protocol and georgia has lots of guns and people that could recitation of that nd element that is not a sufficient pleading a plausible facts to satisfy that here at the motion to dismiss stage so that would would be the strongest argument i would rely upon from from that  to go back to the judge priors question i don't think there's any i mean i know mr nance's is saying that firing squad would be a more humane way to execute him but you cannot ignore the fact that the the states throughout this country that carry out executions use lethal injection as their primary protocol and that the core the united states supreme court the highest court of this land has in fact said there is a legitimate reason for that so that cannot be ignored that is sort of the elephant in the room that the legitimate pain a logical interest the state of georgia would have is obvious and that is the reason it's not an alternative protocol here the injection is the more you main method of execution and we could get completely contradictory rulings from those courts that the supreme court would say oh well that's that's fine they didn't have a legitimate reason and georgia for not using the firing squad but they did in missouri not it's all dependent on funding i think that's a possibility sure your honor well i mean hypothetically that and there's been no discovery about the reasons george would have for not doing firing squad there hasn't been discovery in this case you know where the pleading stage your kind of my point is well i would he is i think unequivocally asking and asked the district or to enjoined the state of georgia from executing him by lethal injection and that firing squad was the only appropriate alternative based on state law that  in essence if he were to win and get that relief the state of georgia would not be able to carry out that distance in any manner under lethal injection so that your present law under present law under underskirt state law that's correct your honor so that from something like a four claim in the sense that mr nance his physical condition is it's fluid as it was anyone any any and the question of whether his exit he is he has the question here is if the same exact analysis except that it involves mr nansen circulatory integrity rather than his mental health and competency but i mean i don't think that's immaterial to stre medical condition made it difficult to access i don't know your honor you don't know that from his previous filings and state i don't hear either ok let's say excessive as a result of this execution by lethal injection and tolerable if the question is are an object of one when it's a reasonably prudent person it's not when mr nance knew that maybe his he had a vein condition the question is why did you become reasonably aware when should he have known that just means had degraded to the point that it would render his execution  unconstitutional and i think the answer to question has that happened no earlier than april of twenty one thousand and whether you know let's say the government let's say you're right you're correct in your assumption or honor that there is evidence that mr nance was an i v drug user and in the past he knew he had a problem if that's true certainly that is evidence that would be adverse to mr nance in a reasonability determination in considering the district court had sufficient evidence to make it finding in fact that it was on reasonable as a matter of law that if your court could do that we would likely appeal such determination because i don't think that there would be sufficient evidence to make that raising and that the state is advancing are questions that need to be resolved with discovery is there are people have equal interest when did mr nance reasonably become aware that is his condition were under his execution unconstitutional those are all factual questions