1EC

- rr '

:

Debra P. Hackett

Clerk, U.S. District Court

15 LEE ST STE 206

MONTGOMERY AL 36104-4055

February 28, 2008

Appeal Number: 08-10100-P

Case Style: Willie McNair v. Richard Allen

District Court Number: 06-00695 CV-N

TO: Debra P. Hackett

CC: J. Clayton Crenshaw

CC: Heather K. McDevitt

CC: Stephanie Lynn Cohen

CC: Vincent R. Fitzpatrick, Jr.

CC: Administrative File

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 1 of 15
For rules and forms visit

www.cal 1 .uscourts.gov

United States Court of Appeals

Eleventh Circuit

56 Forsyth Street, N.W.

Atlanta, Georgia 30303

Thomas K. Kahn

Clerk

February 28, 2008

Debra P. Hackett

Clerk, U.S. District Court

15 LEE ST STE 206

MONTGOMERY AL 36104-4055

Appeal Number: 08-10100-P

Case Style: Willie McNair v. Richard Allen

District Court Number: 06-00695 CV-N

SECONDARY CASE NO: 06-009 19 CV-N

The enclosed certified copy of the judgment and a copy of this court's opinion are hereby issued

as the mandate of this court.

The clerk of the court or agency shown above is requested to acknowledge receipt on

the copy of this letter enclosed to the clerk.

A copy of this letter, and the judgment form if noted above, but not a copy of the court's

decision, is also being mailed to counsel and pro se parties. A copy of the court's decision

was previously mailed to counsel and pro se parties on the date it was issued.

Sincerely,

THOMAS K. KAHN, Clerk

Reply To: Joyce Pope (404) 335-6200

End.

MDT- 1 (06/2006)

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 2 of 15
McNAIR v. ALLEN 1067

Vacated.

Willie McNAIR, PlaintiffWilson, Circuit Judge, dissented and filed Counter-Defendant,

opinion.

James Callahan, Plaintiff-CounterDefendant-Appellee,

1. Sentencing and Punishment 1796

Richard ALLEN, Commissioner, Alabama On constitutional challenge by capital

Department of Corrections, individually defendant to method by which he will be

and in his official capacity, Grantt Cul- executed, courts must balance competing inliver, Warden, Holman Correctional Fa- terests of defendant and state: while defencility, in his individual and official ca- dant's interest in being free from cruel and

pacity, Defendants-Counter-Claimants- unusual punishment is primary, state's interAppellants. est in effectuating its judgment remains sigNo. 08-10100. nificant. U.S.C.A. Const.Amend. 8.

United States Court of Appeals, 2. Criminal Law €1148

Eleventh Circuit.

Court of Appeals reviews district court's

Jan. 29, 2008. grant of preliminary injunctive relief for

Background: Death row inmate moved abuse of discretion.

for stay of his execution, on theory that

3. Criminal Law ct1147 method of execution to which he was subject, i.e.. death by lethal injection, violated It is a paradigmatic "abuse of discretion"

his right to be free from cruel and unusual for court to base its Judgment on erroneous

punishment. The United States District view of the law.

Court for the Middle District of Alabama, See publication Words and Phrases

for other judicial constructions and def- No. 06-00695-CV-N, William Keith Wat- initions.

kins, J., 2007 WL 4463489, and No. 06-

00919-CV-N, Charles S. Coody, J., granted 4. Civil Rights '21304, 1379

motion to allow inmate to litigate his Federal Courts €425

§ 1983 claims, and defendants appealed. All constitutional claims brought under

Holding: The Court of Appeals, Black, § 1983 are tort actions, subject to statute of

Circuit Judge, held that two-year statute limitations governing personal injury actions

of limitations on § 1983 claim brought by in the state where the § 1983 action has been

Alabama death row inmate challenging brought. 42 U.S.C.A. § 1983.

method by which he was to be executed

began to run, not at time of inmate's exe- 5. Civil Rights c!1382

cution or on date that federal habeas re- Federal Courts €425

view was completed, but when inmate, af- Section 1983 action brought by Alabama

ter his death sentence had already become death row inmate challenging, on Eighth

final, became subject to new execution pro- Amendment grounds, the method by which

tocol. he was to be executed was subject to same

Synopsis, Headnotes and Key Number Classification

COPYRIGHT © 2008 ThomsorilWest

The Synopsis, Headnotes and Key Number Classification constitute no part of the opinion of the court.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 3 of 15
1068 McNAIR v. ALLEN

two-year period of limitations that governed 10. Criminal Law 89

personal injury claims under Alabama law. Respect for equality and independence

U.S.C.A. Const.Amend. 8; 42 U.S.C.A. of state courts is cornerstone of United

§ 1983; Ala.Code 1975, § 6-2-38. States judicial system, and such principles of

respect apply with special force in matters of

6. Limitation of Actions €'95(15) criminal law.

Statute of limitations on § 1983 claims

does not begin to run until the facts which 11. Criminal Law €89

would support cause of action are apparent, Federal review of state court judgments,

or should be apparent to a person with rea- while an important check on possible constisonably prudent regard for his rights. 42 tutional abuses, should be carried out in

U.S.C.A. § 1983. timely fashion to prevent unnecessary interference with state's authority.

7. Limitation of Actions 95(15)

Federal claim accrues when prospective 12. Civil Rights 1457(5)

plaintiff knows, or has reason to know, of Sentencing and Punishment 1798

injury which is basis of action. Order stay death row inmate's execution, on theory that he had demonstrated

8. Limitation of Actions €58(1) significant possibility of success on his claim

Statute of limitations on § 1983 claim that method of his execution, by lethal injecchallenging method by which death row j

IF tion, violated his Eighth Amendment right to

mate is to be executed accrues on the later of be free from cruel and unusual punishment,

date on which state review is complete, or was abuse of discretion, where inmate's

date on which inmate becomes subject to a § 1983 action challenging manner of his exenew or substantially changed execution pro- cution was brought more than two years

tocol. 42 U.S.C.A. § 1983. after inmate's death sentence became final

and he became subject to this new execution

9. Limitation of Actions 58(1) protocol, outside relevant limitations period.

U.S.C.A. Const.Amend. 8; 42 U.S.C.A. Two-year statute of limitations on § 1983; Ala.Code 1975, § 6-2-38. § 1983 claim brought by Alabama death row

inmate challenging, on Eighth Amendment

grounds, method by which he was to be

executed began to run, not at time of in- Appeal from the United States District

mate's execution (when his claim would si- Court for the Middle District of Alabama.

multaneously be mooted) or on date that

federal habeas review was completed, but Before TJOFLAT, BLACK and WILSON,

when inmate, after his death sentence had Circuit Judges.

previously become final, became subject to

new execution protocol by failing to timely

BLACK, Circuit Judge: request that he be executed by electrocution

in accordance with preexisting law. U.S.C.A. James Callahan is an Alabama death row

Const.Amend. 8; 42 U.S.C.A. § 1983; Ala. inmate scheduled for execution on January

Code 1975, § 6-2-38. 31, 2008. On October 11, 2006, Callahan filed

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 4 of 15
MeNAIR v. ALLEN 1069

an action under 42 U.S.C. § 1983, contending statements had been admitted improperly,

the method of execution chosen by the State and the case was remanded for a new trial.

of Alabama constitutes cruel and unusual Ex parte Callahan, 471 So.2d 463 (Ala.1985).

punishment in violation of the Eighth At the second trial, the jury again found

Amendment. Finding Callahan's case had a Callahan guilty, and a sentence of death was

significant possibility of succeeding on its re-imposed. Both the Alabama Court of

merits, the district court entered a stay of Criminal Appeals and the Alabama Supreme

execution on December 14, 2007, in order to Court affirmed Callahan's conviction and sen

permit Callahan to fully litigate his constitu- tence. Callahan v. State, 557 So.2d 1292

tional challenge. On appeal, Appellants con- (Ala.Crim.App.1989); affd, Ex parte Callatend the court abused its discretion by enter- han, 557 So.2d 1311 (Ala.1989).

ing the stay.

Callahan's conviction and sentence became We do not reach the relative merits of final on October 1, 1990, when the United Callahan's constitutional claim because we States Supreme Court denied his petition for conclude the claim is barred by the statute of certiorari. See Callahan v. Alabama, 498 limitations. Callahan's limitations period beU.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 gan to run on July 31, 2002, when he selected

(1990). Callahan then filed a state postcon- lethal injection as the method by which he

viction motion. The trial denied the motion, would be put to death, and expired two years

and the court of appeals affirmed the denial. later, on July 31, 2004. In light of the fact

Callahan v. State, 767 So.2d 380 (Ala.Crim. Callahan's complaint was filed more than two

years beyond the limitations period, the dis- App.1999). On March 31, 2000, the Alabama

trict court abused its discretion by entering a Supreme Court denied certiorari. Ex parte

Callahan, 767 So.2d 405 (Ala.2000). stay of execution. We now vacate that deci51011. On March 29, 2001, Callahan petitioned for

a writ of habeas corpus in the United States

I. BACKGROUND District Court for the Northern District of

The full details of Callahan's crime are set Alabama. Twice the district court granted

forth in Callahan v. Campbell, 427 F.3d 897, relief, and twice this court reversed. See

903-10 (11th Cir.2005). In short, on Febru- Callahan v. Haley, 313 F.Supp.2d 1252

ary 3, 1982, Callahan abducted 26—year—old (N.D.Ala.2004), vacated and remanded sub.

Rebecca Suzanne Howell from a laundromat nom. G'allahan v. G'ampbell, 396 F.3d 1287

in Jacksonville, Alabama. He murdered her, (11th Cir.2005); Callahan v. Campbell 427

then dumped her body in a creek, where it F.3d 897 (11th Cir.2005). On October 10,

was discovered two weeks later.1 2006, the Supreme Court denied Callahan's

petition for a writ of certiorari on his habeas

On June 26, 1982, Callahan was convicted claims. Callahan v. Allen, - U.S.

of a capital offense, and shortly thereafter 127 S.Ct. 427, 166 L.Ed.2d 269 (2006).

was sentenced to death. The Alabama Supreme Court reversed Callahan's conviction At the time Callahan was sentenced, Alaand sentence after finding incriminating bama executed inmates by electrocution. On

1. Although Callahan was not charged with rape, assaulted prior to her death.

forensic evidence suggested Howell was sexually

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 5 of 15
1070 McNAIR v. ALLEN

July 1, 2002, Alabama adopted lethal injec- the case, despite the parties' readiness for

tion as its preferred form of execution and trial. On October 26, 2007, the State filed its

gave inmates already on death row 30 days revised lethal injection protocol, which difin which to select electrocution as the method fered only minimally from prior procedures.

by which they would die. Callahan did not Five days later, on October 31, 2007, the

opt out of the new protocol, and therefore Alabama Supreme Court set Callahan's exebecame subject to death by lethal injection cution date for January 31, 2008.

on July 31, 2002.

Callahan moved for a stay of execution,

On October 11, 2006, one day after the arguing his claim was timely brought and

Supreme Court denied Callahan's request for had a significant possibility of success. The

certiorari on the denial of his federal habeas district court agreed, and granted the stay.

petition Callahan filed a complaint under 42 . Appellants now ask this court to tinu tne U.S.C. § 1983, alleging Alabama s lethal m-

• . . . . entry of a stay was an abuse oi aiscretion. jection protocol violates his Eighth Amendment right to be free from cruel and unusual

punishment. Appellants moved for summary

judgment, contending the claim was barred

by the statute of limitations and Callahan [1] When a capital defendant seeks to

had failed to adduce evidence from which a challenge on constitutional grounds the

rational trier of fact could conclude Ala- method by which he will be executed, courts

bama's method of execution violates his con- must balance the competing interests of the

stitutional rights. In addition, Appellants defendant and the State. A defendant's inurged the court to find the lawsuit equitably terest in being free from cruel and unusual

barred because of Callahan's delay in filing punishment is primary; however, the State's

it. After denying Appellants' motion for interest in effectuating its judgment remains

surnmaiy judgment in its entii ety, the dis significant Nel3on v Campbell, 541 U S

trict court set trial for October 3, 2007. 637, 644, 124 S.Ct. 2117, 2123, 158 L.Ed.2d

On September 25, 2007, eight days before 924 (2004) ("State retains a significant interthe trial was slated to begin, Alabama an- est in meting out a sentence of death in a

nounced it would be reviewing its execution timely fashion"). The Supreme Court has

protocol. That same date, the United States repeatedly admonished courts regarding

Supreme Court granted certiorari in Baze V. their obligation to guard against litigation

Rees, U.S. -, 128 S.Ct. 34, 168 brought solely for the purpose of delay. H-ill

L.Ed.2d 809 (Sept. 25, 2007), a case brought v. McDonough, 547 U.S. 573, 126 S.Ct. 2096,

by a death row inmate raising a challenge to 2103, 165 L.Ed.2d 44 (2006) (noting "courts

Kentucky's nearly identical lethal injection should not tolerate abusive litigation tactics"

protocol.2 in constitutional tort cases challenging methIn the midst of these events, the district ods of execution). Courts have given special

court determined it was prudent to continue attention to the timeliness of method of exe2. Two days later, Alabama Governoi Bob Riley 3. On the same day, the Alabama Supreme Court

granted a 45-day reprieve to another condemned also set a new execution date for Thomas Arthur.

prisoner, Thomas Arthur, to allow the Alabama See supra, n. 1.

Department of Coi-rections to review its lethal

injection protocol.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 6 of 15
McNAIR v. ALLEN 1071

cution challenges brought under 42 U.S.C. dealt similarly with other cases, all of which

§ 1983. involved appeals by a defendant, rather than

Courts assessing the timeliness of a § 1983 by the Government. See, e.g., Williams v.

method of execution challenge may do so in Allen, 496 F.3d 1210, 1215 n. 2 (11th Cir.

either of two ways. The first is to ask 2007) ("Because we affirm on equitable

whether the action has been timely brought grounds the district court's judgment disunder the applicable statute of limitations, missing Williams's challenge to the State's

The second involves an equitable inquiry that method of execution, we need not address the

arises when a prisoner requests a stay of State's alternative argument that Williams's

execution in order to fully litigate his consti- suit is barred by the statute of limitations.");

tutional claim. In the latter circumstance, Grayson v. Allen, 491 F.3d 1318, 1326 n. 5

courts ask whether the litigant "unreason- (11th Cir.2007).

ably delayed" before filing his claim and There is a close connection in this case

should therefore be barred from raising his between the district court's decision to imchallenge on the eve of execution, pose a stay and its finding that Callahan's

While acknowledging the existence of a claim was timely filed. In granting Callastatute of limitations for § 1983 claims, our han's request for a stay, the district court

prior cases addressing method of execution properly engaged in a traditional equitable

challenges have focused exclusively on the analysis, considering, among other things,

second inquiry, employing an equitable anal- whether Callahan had shown "a significant

ysis to determine whether a capital litigant's possibility of success on the merits" of his

challenge has been brought too late to war- § 1983 claim. See Hill, 126 S.Ct. at 2104.

rant a stay of execution. See, e.g., Schwab v. The district court concluded Callahan made

Sec., Dep't of Corr., 507 F.3d 1297, 1301 (11th the required showing.

Cir.2007). We have yet to determine how

the relevant statute of limitations applies to [2, 3] We review the district court's grant

inmates who wish to bring a § 1983 challenge of preliminary injunctive relief for abuse of

to the method of their execution, because the discretion. See Grayson, 491 F.3d at 1319

question has not been placed squarely before (applying abuse of discretion standard to re115. view denial of stay in § 1983 action). It

In Jones v. Allen, 485 F.3d 635 (11th Cir. would be "a paradigmatic abuse of discretion

2007), we affirmed on equitable grounds the for a court to base its judgment on an errodistrict court's denial of a stay of execution in neous view of the law," Schlup v. Delo, 513

a case closely analogous to this one. 4 Al- U.S. 298, 333, 115 S.Ct. 851, 870, 130 L.Ed.2d

though we took note of the district court's 808 (1995) (O'Connor, J., concurring), and the

finding that the claim was not barred by the district court's decision would be erroneous if

statute of limitations, we did not review that we were to find the claim barred by the

decision because the Government had not statute of limitations, as Appellants contend

cross-appealed. Id. at 638 n. 1. We have it was.

4. Under nearly identical circumstances, Jones certiorari on the denial of his habeas petition

raised a claim identical to the one Callahan was still pending in the United States Supreme

brings here. We found Jones had unreasonably Court. Jones, 485 F.3d at 638. By contrast,

delayed in bringing his § 1983 challenge even Callahan filed his § 1983 challenge a day after

though he filed it while his petition for a writ of his petition for certiorari was denied.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 7 of 15
1072 McNAIR v. ALLEN

[4, 51 All constitutional claims brought action." Corn v. City of Lauderdale Lakes,

under § 1983 are tort actions, subject to the 904 F.2d 585, 588 (11th Cir.1990). Applying

statute of limitations governing personal in- that principle to the facts of this case, we

jury actions in the state where the § 1983 reject execution and the completion of federaction has been brought. Wilson v. Garcia, al habeas review as the points from which to

471 U.S. 261, 275-76, 105 S.Ct. 1938, 1946-47, measure the limitations period in a method of

85 L.Ed.2d 254 (1985). Callahan's claim was execution challenge. We hold a method of

brought in Alabama, where the governing execution claim accrues on the later of the

limitations period is two years. Ala.Code date on which state review is complete, or

§ 6-2-38; Jones v. Preuit & Mauldin, 876 the date on which the capital litigant beF.2d 1480, 1483 (11th Cir.1989) (en bane). comes subject to a new or substantially

Therefore, in order to have his claim heard, changed execution protocol. For the reasons

Callahan was required to bring it within tWo set forth below, we conclude Callahan's claim

years from the date the limitations period accrued on July 31, 2002, when he selected

began to run. lethal injection as the method by which he

would be executed.

[6] It has long been the law of this Circuit that in § 1983 actions "the statute of

A. Date of Execution limitations does not begin to run until the

facts which would support a cause of action The district court held Callahan's claim

are apparent or should be apparent to a could not accrue until the moment of execuperson with a reasonably prudent regard for tion because the statute of limitations could

his rights." Mullinax v. McElhenney, 817 not "attach to an act that has yet to occur

F.2d 711, 716 (11th Cir.1987) (internal quota- and a tort that is not yet complete." Dist.

tions omitted). What does that mean as Ct. Order dated Nov. 16, 2007, dkt. # 146, at

applied to a capital litigant seeking injunctive 9-10. See also Grayson v. Allen, 499

relief for an injury that has not yet occurred, F.Supp.2d 1228, 1235 (M.D.Ala.2007); Jones but can be reasonably anticipated? The 

v. Allen, 483 F.Supp.2d 1142, 1153 (M.D.Ala.

question is one of first impression in this 2007). Although we agree with the general

Circuit. principle recited by the district court, we

disagree with its application to cases such as

[7-91 There are at least four potentially this one, where the ultimate injury is reasonviable dates on which Callahan's claim could ably likely and wholly foreseeable.

accrue: (1) October 1, 1990, the date his

death sentence became final; (2) July 31, In a recent challenge to the lawfulness of

2002, the date on which it became clear Cal- detention brought under § 1983, the Sulahan would die by Alabama's lethal injection preme Court explained accrual under the

protocol (rather than by any other method); statute of limitations "occurs when the plain-

(3) October 10, 2006, the date the denial of tiff has a complete and present cause of

his federal habeas petition became final; and action, that is, when the plaintiff can file suit

(4) the day of his execution, when the ulti- and obtain relief." Wallace v. Kato, - U.S.

mate injury will occur. It is well established , 127 S.Ct. 1091, 1095, 166 L.Ed.2d 973

that a federal claim accrues when the pro- (2007) (internal quotations omitted). It is

spective plaintiff "knows or has reason to clear a capital litigant may file suit and ohknow of the injury which is the basis of the tam injunctive relief long before he is executCase 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 8 of 15
McNAIR v. ALLEN 1073

ed. Therefore, it is difficult to reconcile Wal- review of the denial of his federal habeas

lace with the district court's holding that the petition. Were we to conclude the denial of

limitations period would not begin to run certiorari is the moment from which to measuntil after the litigant has died (at which time ure the limitations period, Callahan's comthe claim would be simultaneously mooted), plaint would be timely. We do not, however,

Cf Gooey v. Strickland, 479 F.3d 412, 418 adopt the completion of habeas review as the

(6th Cir.2007) (noting problems with select- moment of accrual because doing so would

ing date of execution as date of accrual in prolong unnecessarily the time during which

method of execution claims), a litigant should reasonably anticipate the

Moreover, to hold the limitations period need to file suit and would fail to show

does not begin to run until the moment of proper respect for principles of federalism.

death would be inconsistent with the manner

in which we have treated other § 1983 claims [10, 11] Respect for the equality and inseeking prospective relief, such as those in- dependence of state courts is a cornerstone

volving challenges to parole eligibility. For of our judicial system. Under well-estabexample, in Lovett v. Ray, 327 F.3d 1181 lished principles of federalism, federal courts

(11th Cir.2003), we dismissed as time barred operate within

a prisoner's complaint that a 1998 change in

a system in which there is sensitivity to parole procedure would render him ineligible

the legitimate interests of both State and for parole consideration in 2006. We held

National Governments, and in which the the litigant "knew, or should have known, all

National Government, anxious though it of the facts necessary to pursue a cause of

action" in 1998, but nonetheless waited be- may be to vindicate and protect federal

yond the two year limitation period before rights and federal interests, always endeavors to do so in ways that will not filing his claim. Id. at 1182. Despite the

fact the plaintiff was seeking prospective re- unduly interfere with the legitimate activities of the States. lief against a future injury, we held the claim

was untimely. Id. at 1183. See also Brown Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct.

v. Georgia Bd. of Pardons & Paroles, 335 746, 750-51, 27 L.Ed.2d 669 (1971). These

F.3d 1259, 1261 (11th Cir.2003) (reiterating principles apply with special force in matters

statute of limitations begins to run from date of criminal law. MeCleskey v. Zant, 499 U.S.

facts which would support cause of action 467, 491, 111 S.Ct. 1454, 1469, 113 L.Ed.2d

should be apparent to person with reasonably 517 (1991) ("Our federal system recognizes

prudent regard for his rights), the independent power of a State to articuFor these reasons, we conclude death is late societal norms through criminal law; but

not the moment from which to measure the the power of a State to pass laws means little

accrual of the limitations period for method- if the State cannot enforce them."). Federal

of-execution claims brought under § 1983, review of state court judgments, while an

and we turn to the second option, the date on important check on possible constitutional

which federal habeas review ends, abuses, should be carried out in a timely

fashion to prevent unnecessary interference

B. Completion of Federal Habeas Review with a state's authority.

Callahan filed this lawsuit one day after In considering when a method-of-execution

the Supreme Court denied his petition for claim accrues under § 1983, we are especially

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 9 of 15
1074 McNAIR v. ALLEN

mindful of the Antiterrorism and Effective Thompson v. Wainwright, 714 F.2d 1495,

Death Penalty Act of 1996 (AEDPA), which 1506 (11th Cir.1983) ("Each delay, for its

Congress passed "to reduce delays in the span, is a commutation of a death sentence to

execution of state and federal criminal sen- one of imprisonment.").

tences, particularly in capital cases, .. and

to further the principles of comity, finality, Furthermore, in pinpointing the moment a

and federalism" by curtailing the ability of § 1983 claim accrues, we remain mindful of

federal habeas courts to review state court our own equity jurisprudence. Although the

judgments. Woodford v. Garceau, 538 U.S. Supreme Court has sanctioned the filing of

202, 206, 123 5.Ct. 1398, 1401, 155 L.Ed.2d § 1983 claims challenging the constitutionali363 (2003) (internal quotations omitted). Al ty of execution methods, the Court has emthough method-of-execution challenges phasized that the availability of § 1983 litigabrought under § 1983 are not governed by tion does not diminish the interest of states

AEDPA, they do "fall at the margins of and crime victims "in the timely enforcement

habeas," Nelson, 541 U.S. at 646, 124 S.Ct. at of a sentence," and does not "deprive federal

2124; Gooey, 479 F.3d at 421, and therefore courts of the means to protect" that interest.

implicate many of the same comity concerns Hill, 126 S.Ct. at 2104 ( "[F]ederal courts can

AEDPA was designed to address. These and should protect States from dilatory or

concerns counsel away from setting the mo- speculative suits."). To protect this interest,

ment of accrual at the end of federal habeas courts apply a strong equitable presumption

review, since doing so would provide capital against a stay of execution "where a claim

defendants with a means of delaying execu- could have been brought at such a time as to

tion even after their sentences have been allow consideration of the merits without refound lawful by both state and federal courts. quiring entry of a stay." Nelson 541 U.S. at

650, 124 S.Ct. at 2126; Schwab, 507 F.3d at

As an example, consider the State of Ala- 1301.

bama. It is well known in this Circuit that

"it is common practice for the State to ask Following that reasoning, we have suggestthe Alabama Supreme Court to set an execu- ed a capital litigant bringing a § 1983 claim

tion date for a death-row inmate shortly after in Alabama can foresee his complaint will be

the United States Supreme Court has denied untimely if he waits to file it until the corncertiorari review of the petitioner's federal pletion of federal collateral review. Jones,

habeas petition," Williams, 496 F.3d at 1213, 485 F.3d at 639-40 n. 2 ("Waiting to file suit

which as "a matter of common sense ... until the Supreme Court has denied certioraeliminates the last possible obstacle to execu- ri review of an inmate's federal habeas petition," Jones, 485 F.3d at 639-40 n. 2. Were tion ... is simply too late to avoid the inevitwe to hold a § 1983 method-of-execution able need for a stay of execution."). If we

challenge accrues on the date federal habeas were to hold the limitations period begins to

review ends, we would effectively provide run when federal habeas review ends, claims

capital defendants with a veto power over the which have just accrued under the Alabama

state's ability to effectuate its judgment at statute of limitations would always be unthe close of federal habeas review. Cf timely as a matter of equity. Such a rule

5. It is not clear why Alabama abandoned its finished before asking the Alabama Supreme

standard procedure in this case, waiting until Court to set the date of his execution. It may

well after Callahan's federal habeas review was have been mere fortuity.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 10 of 15
McNAIR v. ALLEN 1075

would be indefensible, and we decline to gins to run, see 28 U.S.C. § 2244(d)(1)(A),

adopt it. thereby simplifying the postconviction labyrinth of filing deadlines through which capital

C. Date Death Sentence Became Final litigants must navigate.

The next possible accrual date is the day Callahan's conviction became final in 1990,

on which a litigant's death sentence becomes sixteen years before this case was filed.

final following direct appeal. Ordinarily, this Nevertheless, the statute of limitations was

is the date on which a capital defendant's not triggered by the completion of state re- § 1983 challenge to the method of his execuview in this case because, at that time, Ala- tion will accrue because it is the date by

bama had not yet adopted lethal injection as which the relevant facts (i.e., the manner and

a form of execution. Until it became clear certainty of execution under state law)

should be apparent to a person with a rca- that lethal injection was the method by which

sonably prudent regard for his rights. See he would die, Callahan lacked a "complete

Mullinax, 817 F.2d at 716. Accord Gooey, and present cause of action," Wallace, 127

479 F.3d at 421-22 (finding completion of S.Ct. at 1095, and his claim did not accrue.

direct review appropriate moment from We turn, therefore, to the final proposed

which to measure accrual); Neville v. John- triggering date: July 31, 2002, the day Callason, 440 F.3d 221, 222 (5th Cir.2006) ("A han selected lethal injection as the means by

challenge to a method of execution may be which he will die.

filed any time after the plaintiff's conviction

has become final on direct review.").

D. Date the Execution Protocol Became

There are several reasons why the comple- Applicable to Callahan

tion of state review will ordinarily trigger the

statute of limitations for a challenge to the As we recognized in Jones, the Alabama

method of execution. First, by requiring a Legislature changed the State's preferred

defendant to wait to bring a claim after method of execution from electrocution to

direct review is complete (as opposed, say, to lethal injection in July 2002. 485 F.3d at

when the sentence is first imposed), we en- 637. Current death row inmates, including

sure claims are not brought prematurely, Jones and Callahan, were given 30 days in

before state courts have had an adequate which to choose electrocution as the means

opportunity to correct any infirmities in the by which they would prefer to die. Id. Any

defendant's conviction or sentence. Second, inmates who had not selected electrocution

by requiring a claim to be brought within two by that time would be subject to death by

years of the completion of state review, we lethal injection. Id. (citing Ala.Code § 15—

guarantee defendants' constitutional .

 chal- 18-82.1 (2006 Cumulative Supp.)). By falling

lenges to the method of their execution can to choose electrocution by July 31, 2002, Calbe fully adjudicated and at the same time lahan chose to die by lethal injection.

protect states from unnecessary interference

in carrying out their judgments. Finally, Although Jones was decided on equitable

selecting the completion of direct appeal as grounds, we noted Jones' lethal injection

the moment a § 1983 claim accrues has the challenge ripened in July 2002, when it beadded benefit of mirroring the time at which came clear he would be executed by lethal

a defendant's habeas limitations period be- injection:

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 11 of 15
1076 McNAIR v. ALLEN

We see no convincing reason why, after filed beyond the applicable two-year statute

Alabama made lethal injection its primary of limitations. Consequently, the district

method of execution, Jones could not have court's order staying the execution is VAbrought his method-of-execution challenge CATED.

sooner than he did. Jones knew of the WILSON, Circuit Judge, dissenting:

State's intention to execute him at least by

July 2002. "It was during that period—in I would affirm the entry of the stay based

which the execution was not so much an on the rationale articulated by Judge Gilman

imminent or impending danger as it was in his dissent in Cooey v. Strickland, 479

an event reasonably likely to occur in the F.3d 412 (6th Cir.2007). In my view, a methfuture—that Jones needed to file this chal- od-of-execution challenge brought under

lenge." § 1983 does not accrue until the prisoner

knows or has reason to know the facts giving Id. at 640 (quoting Harris v. Johnson, 376 F.3d 414, 418 (5th Cir.2004)). There is no rise to his claim and the prisoner's execution

doubt Callahan, too, was free to challenge the becomes imminent. See id. at 426 (Gilman,

method of his execution beginning July 31, J., dissenting). For accrual purposes, the

2002, by which time the facts which would execution becomes imminent when the pris- support a cause of action should have been oner has exhausted all of his state and federapparent to any person with a reasonably al challenges to the validity of the sentence.

prudent regard for his rights. 6 Mullinax, See id. I find this approach preferable to

817 F.2d at 716. The statute of limitations that adopted by the majority, which effectivebegan to run at that time; therefore, absent ly requires a death-sentenced prisoner to file

a significant change in the state's execution a method-of-execution claim years before his

protocol (which did not occur in this case), execution is to take place, during which time

Callahan was required to file his Eighth the challenged protocol could be materially

Amendment challenge by July 31, 2004— changed. Accordingly, I respectfully dissent.

more than two years before his complaint As the majority correctly notes, it is well

was filed, established that a federal claim accrues when

[12] Unguided by a statement of this Cir the prospective plaintiff "knows or has reacult's position on the relevant statute of limi- son to know of the injury which is the basis

tations, it is understandable why the court of the action." Corn v. City of Lauderdale

(and the parties) placed more emphasis on Lakes, 904 F.2d 585, 588 (11th Cir.1990).

the merits of Callahan's Eighth Amendment The majority holds that the facts supporting

challenge and the equities of the stay than on Callahan's § 1983 action were or should have

the threshold question of whether the corn- been apparent to him on July 31, 2002, when

plaint was barred by the statute of lirnita- the 30–day period within which he could

tions. Nevertheless, in light of our holding choose electrocution as his means of executoday, we conclude the district court abused tion expired. I believe that this conclusion

its discretion by determining Callahan had a misconstrues the nature of the injury that

significant possibility of success on the merits Callahan seeks to enjoin. Callahan's § 1983

of his claim when, in fact, the complaint was action is not based on the fact of his death

6. The dissent notes Alabama's execution protocol

is subject to change. Although that is true, neither party suggests the lethal injection protocol

has undergone any material change between

2002 and the present.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 12 of 15
McNAIR v. ALLEN 1077

sentence or even on the fact that he is to be version of the protocol that existed before

executed by lethal injection. Rather, Calla- such changes were made"). Adding to this

han is asserting that the specific lethal injec- uncertainty, the State of Alabama keeps the

tion protocol presently employed by Alabama specifics of its lethal injection protocol a Seis likely to cause him undue pain and suffer- cret. Siebert v. Allen (M.D.Ala. Oct.17,

ing when his execution is carried out. This 2007). I thus cannot accept the majority's

claim could have begun to accrue only (1) conclusion that Callahan's cause of action

when Callahan knew or had reason to know began to accrue five years before his executhe details of Alabama's lethal injection pro- tion date was set, during which time Alabama

tocol and (2) when his execution became im- could, and in fact did, amend its lethal injecminent. tion protocol.'

Contrary to the majority's conclusion, nei- A better approach would be to fix the date

ther of these circumstances existed in July of of accrual when Callahan knew or had reason

2002. Although Alabama adopted lethal in- to know the details of the protocol to be used

jection as its sole method of execution at that in his execution and when his habeas chaltime, its specific protocol is neither fixed by lenge to his sentence was exhausted. Placlaw nor readily accessible. The protocol is a ing the accrual date after the completion of

creature of regulation, not statute, and thus habeas proceedings would have "provide[d]

it is subject to change at any time by the clarity and certainty to both the death-senAlabama Department of Corrections. As is tenced inmate and the State that the sen- the case in other states, "[n]o statutory tence [was] final and not susceptible to at- framework determines when or how such tack, that the execution date [was] set, and

changes may occur. Nor is there a frame- that the protocol for [the] execution [was] work governing when, or even if, such likely fixed." Gooey, 479 F.3d at 429 (Gil- changes will be publicized." Gooey v. Strick- man, J., dissenting). Moreover, in future land, 479 F.3d 412, 427 (6th Cir.2007) (Gil- cases, this approach would avoid the proble- man, J., dissenting). Indeed, it appears that matic outcomes that the majority's decision

Alabama has revised the protocol on a num- will produce: that death-sentenced prisoners her of previous occasions, and there is reason will be required to pursue method-of-executo believe that its efforts to promulgate these tion challenges several years prior to their

changes have been inadequate. See Jones v. executions and during the same time they

Allen, 483 F.Supp.2d 1142, 1146 ii. 2 are challenging their convictions and sen- (M.D.Ala.2007) (noting that Alabama defen- tences on habeas.2

dants "admitted that earlier revisions to the

protocol were made ... but that after dii- Finally, the majority expresses the concern

gent search they [were] unable to locate the that placing the accrual date after the com1. Alabama most recently revised its lethal injec- the plaintiff.' " Id. at 1148 (alterations in origition protocol on October 26, 2007. nal) (quoting Rest.2d Torts § 899 cmt. c). As

2. It is noteworthy that in Jones v. AlIen, 483 such, where a defendant challenges the constituF.Supp.2d 1142 (M.D.Ala.2007), the court recog- tionality of an event that has not yet occurred;

nized that according to general tort principles, i.e., the method of execution, the statute of limi-

"'the statute [of limitations] does not usually tations inquiry is not applicable; rather, oply

begin to run until the tort is complete,'" and a equitable considerations (such as those associat-

"'tort is ordinarily not complete until there has ed with comity, finality, federalism, and laches)

been an invasion of a legally protected interest of are relevant. Id. at 1149-51.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 13 of 15
1078 McNAIR v. ALLEN

pletion of habeas proceedings would enable stay where the claim could have been

prisoners to "veto" the state's ability to effec- brought earlier. Nelson v. Campbel4 541

tuate its judgments by unreasonably delaying U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d

their § 1983 actions. However, the Supreme 924 (2004). In my view, therefore, the maCourt has recognized that prisoners seeking jority's concern in this regard is unpersuastays of execution must establish a significant sive.

likelihood of success on the merits, including

overcoming a presumption against entry of a For these reasons, I respectfully dissent.

A True Ccrv - Mteste:

of Arats.

Deputy Cierk

t1anta, GeGrg3

U.S. Court of Appeals, Eleventh Circuit—Thomson/West, Saint Paul, Minn.

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 14 of 15
United States Court of Appeals

For the Eleventh Circuit

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Jan 29, 2008

THOMAS K. KAHN

CLERK

No. 08-10100

District Court Docket No.

06-00695-C V-N

WILLIE MCNAIR,

Plaintiff-Counter-Defendant,

JAMES CALLAHAN,

Plaintiff-Counter-DefendantAppellee,

versus

RICHARD ALLEN, Commissioner,

Alabama Department of Corrections, individually

and in his official capacity,

GRANTT CULLIVER, Warden, Holman Correctional

Facility, in his individual and official capacity,

Defendants-CounterClaimants-Appellants.

--

' \ for the Middle District of Alabama

----------------------

^^^ 2 8 2008 J

/ JUDGMENT

U.S. COURT OF APPEALS

T

LANT .G reby ordered, adjudged, and decreed that the attached opinion included herein by

reference, is entered as the judgment of this Court.

Entered: January 29, 2008

For the Court: Thomas K. Kahn, Clerk

A By: Pope, Joyce

U. Cit of Appas1

C cit

ieputy Cierk

flanta, Georgia

Case 2:06-cv-00695-WKW-CSC Document 167 Filed 02/29/2008 Page 15 of 15