UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES EDWARD REID, 

Petitioner-Appellant,

v.

GENE M. JOHNSON, Director,

Commonwealth of Virginia  No. 03-7916 Department of Corrections; GEORGE

M. HINKLE, Warden, Greensville

Correctional Center; WILLIAM PAGE

TRUE, Warden, Sussex I State

Prison,

Respondents-Appellees. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-03-1039-3)

Submitted: December 16, 2003

Decided: August 2, 2004

Before WILKINS, Chief Judge, and GREGORY and

SHEDD, Circuit Judges.

Reversed and remanded by unpublished per curiam opinion. 

COUNSEL

James Clinton Turk, Jr., Clifford Lee Harrison, STONE, HARRISON

& TURK, P.C., Radford, Virginia, Robert Edward Lee, Jr., VIR-
GINIA CAPITAL REPRESENTATION RESOURCE CENTER,

Charlottesville, Virginia, Marie Frances Donnelly, MIDWEST CENTER FOR JUSTICE, Evanston, Illinois, for Appellant. Katherine P.

Baldwin, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Three days before his scheduled execution for the murder of Annie

Lester, James Edward Reid filed an action pursuant to 42 U.S.C.A.

§ 1983 (West 2003) asserting that the means by which the Commonwealth of Virginia ("the State") intended to carry out his execution

constituted cruel and unusual punishment in violation of the Eighth

Amendment. The district court dismissed the action, reasoning that

the complaint was properly construed as a petition for a writ of habeas

corpus for which Reid, having already sought habeas relief in the federal courts, was required to obtain the permission of this court. See

28 U.S.C.A. § 2244(b)(3) (West Supp. 2004). Reid now appeals this

order, and for the reasons set forth below, we reverse and remand for

further proceedings.1

1

It is not clear whether Reid must obtain a certificate of appealability

(COA), see 28 U.S.C.A. § 2253(c) (West Supp. 2004), before we may

consider his appeal. Cf. Reid v. Angelone, 369 F.3d 363, 367-70 (4th Cir.

2004) (holding that a habeas petitioner was required to obtain a COA in

order to appeal the denial of relief pursuant to Federal Rule of Civil Procedure 60(b)). Assuming without deciding that a COA is necessary here,

we grant one. 

2 REID v. JOHNSON
I.

Reid pleaded guilty to Lester’s murder and was sentenced to death.

The Virginia Supreme Court rejected Reid’s claims on appeal, see

Reid v. Commonwealth, 506 S.E.2d 787 (Va. 1998), and his petition

for habeas relief. Reid thereafter filed a petition for a writ of habeas

corpus in federal district court. That court denied relief, and we

affirmed. See Reid v. True, 349 F.3d 788 (4th Cir.), cert. denied, 124

S. Ct. 979 (2003). 

The State scheduled Reid’s execution for December 18, 2003. On

December 15, Reid filed his § 1983 claim asserting, upon information

and belief, that the State intended to employ a combination of three

drugs—sodium thiopental or sodium pentothal, pancuronium bromide

or Pavulon, and potassium chloride—in executing him. Reid alleged

that this combination of chemicals would cause him "to consciously

suffer an excruciatingly painful and protracted death." Compl. at 4.

Specifically, Reid alleged that the sodium pentothal, intended to render him unconscious during the execution, would wear off or be neutralized by the Pavulon before the execution was complete, causing

Reid to experience the painful effects of the potassium chloride used

to bring about cardiac arrest; Reid’s agony would be masked, however, by the paralyzing effect of the Pavulon. Reid sought "a permanent injunction barring Defendants from executing Plaintiff in the

manner they currently intend." Id. at 5. 

The district court dismissed, reasoning that "[a] ‘challenge to the

manner of execution is a challenge seeking to interfere with the sentence itself, and thus, is properly construed as a petition for habeas

corpus.’" Reid v. Johnson, No. 3:03cv1039, slip op. at 2 (E.D. Va.

Dec. 16, 2003) (quoting In re Sapp, 118 F.3d 460, 462 (6th Cir.

1997)). Reid thereafter filed a notice of appeal and sought a stay of

execution from this court. We granted Reid a stay of execution pending appeal and held this appeal in abeyance pending a decision by the

United States Supreme Court in Nelson v. Campbell, 124 S. Ct. 2117

(2004). 

II.

42 U.S.C.A. § 1983 and 28 U.S.C.A. § 2254 (West 1994 & Supp.

2004) are two different means of seeking redress for unconstitutional

REID v. JOHNSON 3
action by state officials. See Heck v. Humphrey, 512 U.S. 477, 480

(1994). Section 2254 "is the exclusive remedy for a state prisoner

who challenges the fact or duration of his confinement and seeks

immediate or speedier release, even though such a claim may come

within the literal terms of § 1983." Id. at 481. An action styled as a

§ 1983 claim must be treated as a petition for habeas relief under

§ 2254 when success on the claim would necessarily imply the invalidity of the plaintiff’s conviction or sentence. See Edwards v. Balisok, 520 U.S. 641, 645-46 (1997). 

The Supreme Court applied these principles in Nelson. Three days

before his scheduled execution, Nelson filed a § 1983 action alleging

that the state of Alabama intended to use a "cut-down" procedure to

obtain venous access to execute him by lethal injection and claiming

that use of this procedure would violate the Eighth Amendment. See

Nelson, 124 S. Ct. at 2120. Nelson sought to permanently enjoin Alabama from using the cut-down procedure. See id. at 2121. The

Supreme Court held that Nelson had stated a cognizable claim under

§ 1983 because he challenged only the use of the cut-down procedure,

not lethal injection generally. See id. at 2123. The Court observed that

Nelson’s challenge to the use of the cut-down procedure might constitute a challenge to the execution itself "[i]f as a legal matter the cutdown were a statutorily mandated part of the lethal injection protocol,

or if as a factual matter petitioner were unable or unwilling to concede

acceptable alternatives for gaining venous access." Id. at 2123-24. 

In light of Nelson, we conclude that Reid has stated a cognizable

claim under § 1983. Like Nelson, Reid does not assert that lethal

injection generally is an unconstitutional method of execution.

Rather, he asserts only that the particular protocol the State plans to

use is impermissible; he acknowledges that other protocols would

pass constitutional muster. See Pl.-Appellant’s Reply to Def.’s Mot.

to Vacate as Moot the Order of Dec. 17, 2003 at 10-11. Additionally,

it appears that the execution protocol at issue here is a matter of

Department of Corrections policy, not statute or regulation. See Aff.

of Anthony M. Parker at 2. Under these circumstances, Reid’s challenge to the protocol does not implicate the validity of his death sentence. See Nelson, 124 S. Ct. at 2123-24. 

As did the Supreme Court in Nelson, we note that Reid’s statement

of a cognizable § 1983 claim does not necessarily entitle him to relief.

4 REID v. JOHNSON
The question remains whether Reid should be afforded preliminary

injunctive relief in order to pursue his § 1983 claim. See id. at 2125-

26 (noting that "the mere fact that an inmate states a cognizable

§ 1983 claim does not warrant the entry of a stay as a matter of

right"); Gomez v. United States Dist. Ct., 503 U.S. 653, 654 (1992)

(per curiam) (describing equitable considerations pertinent to an

award of preliminary injunctive relief in an eleventh-hour attempt to

stay execution). The propriety of a stay pending litigation of Reid’s

claim is a matter best addressed by the district court in the first

instance. 

III.

For the reasons set forth above, we reverse and remand for further

proceedings consistent with this opinion. The stay of execution will

remain in effect for ten days after the issuance of our mandate or until

Reid reinstates his request for preliminary injunctive relief in the district court, whichever occurs first.2

REVERSED AND REMANDED

2The State’s motion to vacate stay is denied. 

REID v. JOHNSON 5