IN THE DISTRICT COURT OF THE UNITED STATES 

FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 

WILLIE MCNAIR, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-695-WKW 

 ) 

RICHARD ALLEN , et al., ) 

 ) 

 Defendants/Counter-Plaintiffs, ) 

_____________________________________

 ) 

JAMES CALLAHAN, ) 

 ) 

 Plaintiff/Counter-Defendant, ) 

 ) 

v. ) No. 2:06-cv-919-WKW 

 ) 

RICHARD ALLEN, et al., ) 

 ) 

 Defendants/Counter-Plaintiffs, ) 

DEFENDANTS’ REPLY TO MCNAIR’S OPPOSITION TO DEFENDANTS’ 

MOTION FOR SUMMARY JUDGMENT 

 Defendants Richard Allen, Commissioner, and Grantt

Culliver, Warden, hereby reply to McNair’s opposition to 

the defendants’ motion for summary judgment. In support of 

their previously filed summary judgment motion, see Doc. 

165, the defendants primarily relied on the Eleventh 

Circuit’s recent decision in McNair v. Allen, 515 F.3d 1168 

(11th Cir. Jan. 29, 2008), that applied for the first time 

a statute of limitations to lethal-injection claims such as 

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the one raised by McNair.1 McNair’s opposition does not 

offer a substantive response but rather asserts that this 

Court should hold the defendants’ summary judgment motion 

in abeyance until the United States Supreme Court decides 

the petition for certiorari that will be filed in McNair on 

or before April 28, 2008. See Doc. 168. The defendants 

again urge this Court to grant their pending summary 

judgment motion. 

 This Court should not hold the defendants’ summary

judgment motion in abeyance because the Eleventh Circuit’s 

decision in McNair is binding precedent that this Court is 

required to follow.2 The district courts in a circuit owe 

obedience to a decision of the court of appeals in that 

circuit and must follow it until the court of appeals 

overrules it. Hall v. Humphrey, 155 Fed.Appx. 441, 2005 WL 

3078593, *2, n.3 (11th Cir. 2005)(citing United States v. 

 

1 As this Court knows, the McNair decision relates to the denial of 

James Callahan’s request for a stay of execution because his § 1983 

lawsuit was filed after the expiration of the statute of limitations. 

McNair, 515 F.3d at 1172-78. Because Willie McNair is the lead 

plaintiff in the case consolidated with James Callahan’s, the Eleventh 

Circuit’s decision is styled with the name Willie McNair even though 

it was deciding Callahan’s request for a stay of execution. 

2 The Eleventh Circuit has now joined the Sixth Circuit, which 

previously ruled that method of execution challenges are subject to a 

statute of limitations inquiry. See Cooey v. Strickland, 479 F.3d 412 

(6th Cir. 2007), rehearing denied, Cooey v. Strickland, 489 F.3d 775 

(6th Cir. 2007). No other court of appeals has addressed this issue. 

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Steele, 147 F.3d 1316, 1318 (11th Cir. 1998)). The Third

Circuit has likewise held that “precedents set by higher 

courts are conclusive on courts lower in the judicial 

hierarchy ‘and leave to the latter no scope for independent 

judgment or discretion.’” United States v. Mitlo, 714 F.2d 

294, 298 (3d Cir. 1983)(quoting Allegheny General Hospital 

v. NLRB, 608 F.2d 965 (3d Cir. 1979))(in turn quoting H.C.

Black, Law of Judicial Precedents 10 (1912)). There can no 

serious argument, and McNair offers none (serious or 

otherwise), that the Eleventh Circuit’s ruling in McNair

does not apply with equal force here. McNair’s facile 

contention that the defendants’ summary judgment motion 

should be denied because this Court has previously rejected 

the defendants’ statute of limitations argument ignores the 

Eleventh Circuit’s decision in McNair that rejected this 

Court’s reasoning. 

 Although not offering a substantive argument, McNair 

does state some irrelevant nitpickings. First, McNair 

seems to imply that the Eleventh Circuit’s decision is not 

precedent because it was decided by a “divided panel.” 

McNair offers no authority that holds a less than unanimous 

panel decision is entitled to less respect. Furthermore, 

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the McNair decision has been issued as the mandate of the 

Court and is thus a final decision by the Eleventh Circuit. 

McNair v. Callahan, No. 08-10100 (Feb. 28, 2008). Finally, 

decisions of the United States Supreme Court, which can be 

decided on a 5-4 vote, are precedent and are no less the 

law than a unanimous decision. 

Second, McNair contends that the defendants did not

properly preserve the statute of limitations issue because 

it did not mention that defense in its opposition to 

Callahan’s request for a stay of execution. However, 

McNair’s contention ignores the many filings the defendants 

have made that raised the statute of limitations issue, 

including their first motion for summary judgment. See 

Docs. 43, 56, 80, 81, 82, 97, 98, 125. This Court denied 

that motion for summary judgment and relied on its denial 

in granting Callahan’s stay of execution. Doc. 146; Doc. 

154 at 6-7)(“The finding of a likelihood of success on the 

merits is partially grounded in the claim’s survival of 

summary judgment.”). 

 Finally, McNair urges this Court to delay ruling until 

the United States Supreme Court decides Baze v. Rees, No. 

07-5439 (July 11, 2007). Any decision reached in Baze will 

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not have any impact here because, as the Eleventh Circuit 

has already determined, McNair filed his lethal-injection 

lawsuit after the expiration of the statute of limitations. 

Therefore, any ruling on the merits by the Supreme Court in 

Baze will not affect this case because McNair simply filed 

his lawsuit too late. 

 Wherefore, for the foregoing reasons, and for the 

reasons stated in all of the defendants’ filings related to 

the statute of limitations issue, this Court should rule 

that McNair filed his lawsuit after the expiration of the 

statute of limitations. 

 Respectfully submitted, 

 Troy King 

 Attorney General

 s/ J. Clayton Crenshaw 

 J. Clayton Crenshaw 

 Assistant Attorney General 

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CERTIFICATE OF SERVICE

This is to certify that on the 20th day of March, 2008, 

a copy of the foregoing has been electronically filed with 

the Clerk of the Court using the CM/ECF system, which will 

electronically send a copy of the same to the following: 

Randall S. Susskind, Cathleen I. Price, Vincent R. 

Fitzpatrick, Jr., Heather K. McDevitt, and Stephanie Cohen.

 s/ J. Clayton Crenshaw 

 J. Clayton Crenshaw 

 Assistant Attorney General 

ADDRESS OF COUNSEL: 

Office of the Attorney General 

Alabama State House 

11 South Union Street 

Montgomery, AL 36130 

Telephone: 334.242.7300 

Fax: 334.353.3637 

Email: ccrenshaw@ago.state.al.us

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