RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0009p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DONALD RAY MIDDLEBROOKS,

Plaintiff-Appellant,

v.

TONY PARKER, in his official capacity as Tennessee’s 

Commissioner of Correction; TONY MAYS, in his 

official capacity as Warden of Riverbend Maximum 

Security Institution, 

Defendants-Appellees.

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No. 20-5419

On Petition for Rehearing En Banc

United States District Court for the Middle District of Tennessee at Nashville.

No. 3:19-cv-01139—William Lynn Campbell, Jr., District Judge.

Decided and Filed: January 13, 2022

Before: MOORE, CLAY, and WHITE, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Miranda Jones Scott Sutherland, Rob 

Mitchell, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for 

Appellee. ON RESPONSE: Richard Lewis Tennent, Kelley J. Henry, Amy D. Harwell, 

Katherine Dix, Marshall Jensen, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE 

MIDDLE DISTRICT OF TENNESSEE, Nashville, Tennessee, for Appellant. ON AMICUS 

BRIEF: Jeffrey C. Mando, Claire E. Parsons, ADAMS LAW, PLLC, Covington, Kentucky, D. 

Barry Stilz, KINKEAD & STILZ, Lexington, Kentucky, for Amicus Curiae.

MOORE, CLAY, and WHITE, JJ., the original panel of the court, issued an order 

denying the petition for rehearing en banc and a statement in support. THAPAR, J. (pp. 4–14), 

issued a separate statement respecting the denial of rehearing en banc. 

>
No. 20-5419 Middlebrooks v. Parker, et al. Page 2

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the 

petition for rehearing and concludes that the issues raised in the petition were fully considered 

upon the original submission and decision of the case. The petition then was circulated to the 

full court. No judge has requested a vote on the suggestion for rehearing en banc.

Therefore, the petition is denied.
No. 20-5419 Middlebrooks v. Parker, et al. Page 3

_____________________________

STATEMENT IN SUPPORT 

_____________________________

MOORE, CLAY, and WHITE, Circuit Judges.

The panel offers three observations in support of the denial of the petition for rehearing 

en banc.

First, as the Order denying en banc review makes clear, “no judge” of this court 

“requested a vote on the suggestion for rehearing en banc.” Order at 2 (emphasis added).

Second, the panel’s opinion simply applied binding Supreme Court precedent to reverse 

the district court’s dismissal of Middlebrooks’s facial challenge and remanded the case to the 

district court for further proceedings. Middlebrooks v. Parker, 15 F.4th 784, 797 (6th Cir. 2021).

Third, Judge Thapar’s statement does not suggest that the panel improperly applied any 

Supreme Court or Sixth Circuit precedent. (Perhaps that is why he did not request a vote on the 

suggestion for rehearing en banc.) Instead, with a string of citations to Supreme Court 

concurrences, dissents, and one decades-old dissent from denial of certiorari, the statement 

makes a series of normative claims about how death-penalty doctrine should operate, and 

coaches states as to how they may use their sovereign authority to proceed with executions more 

efficiently.
No. 20-5419 Middlebrooks v. Parker, et al. Page 4

_________________

STATEMENT

_________________

THAPAR, Circuit Judge, statement respecting denial of rehearing en banc. 

Thirty-two years after he brutally tortured and killed a 14-year-old boy, Donald 

Middlebrooks asks this court to bar his execution by lethal injection as cruel and unusual 

punishment. He says that Tennessee’s midazolam protocol will inflict unnecessary pain and 

violate the Eighth Amendment. So he demands that the State use pentobarbital instead. But just 

eight years ago, Middlebrooks raised precisely the same objection to pentobarbital. What 

changed? Tennessee can no longer access pentobarbital.

Such gamesmanship is far from unusual in capital-punishment litigation. So in a pair of 

cases, Baze v. Rees and Glossip v. Gross, the Supreme Court aimed to curb the prolonged 

litigation that surrounds method-of-execution claims. Unfortunately, things haven’t panned out 

this way in the lower courts. This case is proof positive. And the fact that our jurisprudence 

turns on fact-specific inquiries rather than bright-line rules ensures that the deck remains stacked 

against the states. Why? Because even when the state wins in the first round of litigation, a 

determined inmate can demand a rematch by pointing to “new facts.” And unsurprisingly, “new 

facts” are not hard to come by at the pleading stage. What’s more, these allegations earn the 

inmate a ticket to the costly and time-consuming discovery that picks apart every aspect of the 

state’s execution method. Thus, for those inmates who see litigation as only a device of delay, 

our jurisprudence invites such maneuvers.

Like many death-row inmates, Middlebrooks has made a career out of exploiting these 

gaps. Kerrick Majors’s family and the legal system both deserve better.

I.

Kerrick Majors was no different from most 14-year-olds. He liked to hang out with his 

friends and have some fun. One day, Kerrick and four of his friends went to a flea market. They 

saw Donald Middlebrooks, his wife Tammy, and the couple’s friend, Roger Brewington, setting 
No. 20-5419 Middlebrooks v. Parker, et al. Page 5

up a table. The five boys started looking through the things Middlebrooks had set on the table. 

But Middlebrooks’s wife yelled at the boys, “Hey y’all n------, leave our stuff alone.” So they 

took off running—but Middlebrooks and Brewington followed them. Four of the boys got away. 

Sadly, Kerrick did not. Middlebrooks and Brewington caught him and dragged him back to the 

table.

When they caught him, they grabbed him in a “sleeper hold” around his neck. Kerrick 

cried out, asking them to let him go and protesting that they all knew each other. But one just 

responded: “F--k you n-----.” Kerrick was black; Middlebrooks and Brewington are white. 

(One witness testified that Middlebrooks claimed to be a member of the KKK, “hated n------,” 

and had punched a black man for just saying hello.)

Next, Middlebrooks punched Kerrick in the face and knocked him down. Together with 

his wife and Brewington, he then dragged Kerrick into the woods. There, they beat him with 

brass knuckles and a switch, struck him in the testicles, urinated in his mouth, burned his face 

with a cigarette lighter, forced a stick into his anus, and slashed open his wrist with a knife. 

They carved an “X” into his chest. After three and a half hours of torture, Kerrick was still 

conscious and begging for his life. But his crying and pleading began to get on Middlebrooks’s 

nerves. So the men stabbed him to death. 

Indeed, as he later confessed, Middlebrooks inflicted the final wounds that extinguished 

Kerrick’s life. Why? So he could “prove” to Brewington that he was “cooler.” 

The next day, police discovered Kerrick’s mangled, naked body lying face up in a dry 

creek bed under a foam mattress. A bloodstained and urine-soaked T-shirt was tied around his 

neck. Bruises, swelling, and abrasions disfigured his face. Forensic examiners confirmed that 

Kerrick suffered unimaginable horrors: One of the stab wounds had penetrated his left lung and 

pulmonary artery, meaning that Kerrick likely bled to death over a period of ten to thirty minutes 

after staying conscious through the hours before. 

Middlebrooks gave a lengthy video-taped confession about the murder and presented no 

proof at trial. A jury sentenced him to death because the killing was “especially heinous, 

atrocious, or cruel.”
No. 20-5419 Middlebrooks v. Parker, et al. Page 6

Since a jury of his peers convicted him of murder and recommended the death penalty in 

1989, Middlebrooks has been no stranger to the courtroom. Indeed, he has spent thirty-two years 

attempting to unwind his sentence by litigating up, down and across the federal and state court 

systems.1 

Middlebrooks now claims that there is a substantial risk that Tennessee’s three-drug 

protocol of midazolam, vecuronium bromide, and potassium chloride (the “midazolam 

protocol”) will cause him to suffer severe pain in violation of the Eighth Amendment. Instead, 

he proposes that the State use either nitrogen hypoxia or pentobarbital.2 

The irony? In an earlier case, Middlebrooks argued that pentobarbital posed “a 

substantial risk of a lingering death.” See West v. Schofield, 519 S.W.3d 550, 552 (Tenn. 2017). 

Now he claims pentobarbital “will greatly reduce the substantial risk of severe pain.” R. 13, Pg. 

ID 187–88. One might wonder if this litigation is about pain at all or simply delay. After 

decades of litigation, the answer seems self-evident.

II.

Turning to Middlebrooks’s legal claim, he faces a high hurdle. Though methods of 

execution have changed over time, the Supreme Court “has never invalidated a State’s chosen 

procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” 

1A string cite can sometimes be worth a thousand words. Here, it at least gives the reader a glimpse into 

Middlebrooks’s never-ending journey across our justice system. Indeed, his challenges have outlasted the entire 

careers of judges, prosecutors, and politicians. See State v. Middlebrooks, 840 S.W.2d 317 (Tenn. 1992) (direct 

appeal), cert. dismissed, 510 U.S. 124 (1993) (mem.); State v. Middlebrooks, 995 S.W.2d 550 (Tenn. 1999) (direct 

appeal after resentencing); Middlebrooks v. State, No. M2001-01865-CCA-R3-PD, 2003 WL 61244 (Tenn. Crim. 

App. Jan. 9, 2003) (appeal from the denial of state petition for post-conviction relief); Middlebrooks v. Bell, No. 

3:03-0814, 2007 WL 760441 (M.D. Tenn. Mar. 8, 2007) (federal petition for habeas corpus), aff’d, 619 F.3d 526 

(6th Cir. 2010), rev’d sub nom. Middlebrooks v. Colson, 566 U.S. 902 (2012) (mem.); Middlebrooks v. Colson, No. 

3:03–00814, 2014 WL 3817238 (M.D. Tenn. Aug. 1, 2014) (decision on remand), aff'd on other grounds sub nom. 

Middlebrooks v. Carpenter, 843 F.3d 1127 (6th Cir. 2016), cert. denied, 138 S. Ct. 503 (2017) (mem.), reh’g denied, 

138 S. Ct. 1046 (2018) (mem.); West v. Schofield, 468 S.W.3d 482 (Tenn. 2015) (state court challenge to 

Tennessee’s designation of electrocution as alternative method of execution); West v. Schofield, 519 S.W.3d 550 

(Tenn.) (state court challenge to Tennessee’s lethal-injection protocol using pentobarbital), cert. denied, 138 S. Ct. 

476 (2017) (mem.); Abdur’Rahman v. Parker, 558 S.W.3d 606 (Tenn. 2018) (state court challenge to Tennessee’s 

three-drug protocol for lethal-injection), cert. denied, 139 S. Ct. 1533 (2019) (mem.).

2As the panel held that res judicata barred his as-applied nitrogen hypoxia claim, pentobarbital remains 

Middlebrooks’s only claim on remand. 
No. 20-5419 Middlebrooks v. Parker, et al. Page 7

Glossip v. Gross, 576 U.S. 863, 869 (2015) (citation omitted). To succeed, Middlebrooks must 

show that the State’s chosen method of execution “cruelly superadds pain.” Bucklew v. 

Precythe, 139 S. Ct. 1112, 1125 (2019) (citing Glossip, 576 U.S. at 869–78, and Baze v. Rees, 

553 U.S. 35, 52 (2008) (plurality opinion)). And he must show that a “feasible and readily 

implemented alternative method of execution” exists that substantially reduces the risk of severe 

pain and that “the State has refused to adopt without a legitimate penological reason.” Id.

Middlebrooks is well-acquainted with the Baze-Glossip test. After all, this is at least his 

third challenge to Tennessee’s execution protocol. And when these challenges are viewed sideby-side with how the State’s execution protocol has changed over time, it is hard to shake the 

impression that Middlebrooks is playing a contrived game of “Whac-A-Mole.” 

Start with Middlebrooks’s first method-of-execution challenge in 2014. At that time, 

Tennessee used pentobarbital for its executions. Middlebrooks, along with a group of other 

inmates, challenged the State’s use of pentobarbital as posing a “substantial risk of a lingering 

death” that violated the Eighth Amendment’s prohibition on cruel and unusual punishment. See 

Schofield, 519 S.W.3d at 552. This challenge failed because the plaintiffs failed to both show 

pentobarbital caused severe pain and identify a readily available alternative. Id. at 564–66. 

But soon after this three-and-a-half-year suit ended, Tennessee had to change its 

execution protocol despite its courtroom victory. Why? Because anti-death penalty advocates

had successfully lobbied one manufacturer to stop selling the drug to any state using it for 

executions. Glossip, 576 U.S. at 871. And the rest had followed suit. So Tennessee turned to 

the midazolam protocol it retains to this day. 

With pentobarbital unavailable, Middlebrooks changed his tune. In his next method-ofexecution challenge, he and other inmates demanded that the State execute them with 

pentobarbital. Abdur’Rahman v. Parker, 558 S.W.3d 606, 610 (Tenn. 2018). But 

Middlebrooks’s second suit failed too. The inmates could not show that pentobarbital was 

available—let alone readily implementable. Id. at 623, 625. Indeed, all of the evidence showed 

the opposite. As the state court aptly noted, “[c]ommon sense” tells us Tennessee would have
No. 20-5419 Middlebrooks v. Parker, et al. Page 8

used pentobarbital if it could get it—the State had just spent over three years successfully 

defending its constitutionality. Id. at 624 n.21. 

So now, Middlebrooks brings his third challenge: Yet another suit, this time in federal 

court. Again claiming pentobarbital as an alternative to the midazolam protocol. And he 

sidesteps res judicata by alleging “new facts” that this time pentobarbital really is a readily 

available alternative to the midazolam protocol. 

A.

Take a step back and this suit raises two observations. First, it’s hard not to see all this 

for what it is. A transparent act of gamesmanship that seeks only one thing: Delay for delay’s 

sake. Second, it makes one wonder whether our method-of-execution jurisprudence is 

well-suited for the practicalities of capital punishment litigation. To be sure, sincere litigants 

exist who sue only to vindicate their constitutional rights. But the Supreme Court has warned us 

time after time to watch for the inmate who looks to “use such challenges as tools to interpose 

unjustified delay.” Bucklew, 139 S. Ct. at 1134. 

And it now appears that the Baze-Glossip test is especially vulnerable to such 

gamesmanship. As I understand the test, we must engage in a comparative enterprise that pits 

the state’s designated method of execution against a method of execution chosen by the plaintiff 

(irrespective of whether it’s authorized under state law). See id. at 1127–29. Yet an inmate 

intent on dragging out litigation for the sake of delay has every incentive to identify only a 

method of execution on the boundary of what’s practically available to the state—like asking for 

pentobarbital once a state concludes the drug is beyond its reach. This alone can trigger years of 

litigation about “[w]hich alternative procedures are ‘feasible’ and ‘readily implemented’” or 

when a reduction in risk is sufficiently significant. Baze, 553 U.S. at 105 (Thomas, J., 

concurring in judgment). And what’s more, as this case shows, an inmate is not necessarily 

restricted to one bite at the apple. Instead, he can simply restart the game time after time by 

pointing out that “new facts” have emerged. Such a scheme makes a mockery of our criminal 

justice system. 
No. 20-5419 Middlebrooks v. Parker, et al. Page 9

To the extent our analysis must be a comparative exercise, I would propose that a more 

workable approach would compare the state’s preferred method of execution with “traditional 

modes of execution such as hanging and the firing squad.” Id. at 106. After all, if we know that 

such methods are constitutionally valid, then shouldn’t the state’s preferred method of lethal 

injection also pass muster if it is less likely to cause the inmate substantial pain? See, e.g., In re 

Kemmler, 136 U.S. 436 (1890) (upholding electrocution); Wilkerson v. Utah, 99 U.S. 130, 134–

135 (1879) (upholding the firing squad). And once the Supreme Court blesses a method of 

execution in one case, then that method should be permissible as a categorical matter for any 

state to use.3

Until we change our jurisprudence, significant delays will remain par for the course in 

capital punishment cases. And the results speak for themselves. In 1960, “the average delay 

between sentencing and execution was two years.” Glossip, 576 U.S. at 925 (Breyer, J., 

dissenting). By 2014, “the average had risen to about 18 years.” Id. Today, the number is 

surely higher. Unsurprisingly, more death-row inmates in Tennessee have died of natural causes 

than by execution in the last 20 years. Compare Appellant Br. at 38, with State & Fed. Info: 

Tennessee, Death Penalty Info. Ctr. (Jan. 6, 2022).

This trend only amplifies Chief Justice Rehnquist’s forty-year-old observation that 

“endlessly drawn out legal proceedings” have whittled the death penalty down to “virtually an 

illusion.” Coleman v. Balkcom, 451 U.S. 949, 958 (1981) (Rehnquist, J., dissenting from denial 

of certiorari). In 1999, 98 executions took place across the Nation. See The Death Penalty in 

1999: Year End Report, Death Penalty Info. Ctr. (Dec. 1, 1999). Last year, 11. See Michael 

Tarm, Report: 11 Executions in 2021 Mark Three-Decade Low, Associated Press (Dec. 16, 

2021). 

The Constitution has almost nothing to do with this drop. Nor does the ballot box. 

Instead, the death penalty’s death-by-a-thousand-cuts—through a distortion of the Eighth 

Amendment—has come mostly at the hands of the federal judges who have overseen “the 

3

Indeed, under this test, this case would have been easy. Since the Supreme Court has already blessed this 

protocol in Glossip, Tennessee would have swiftly won on the merits. No costly litigation to re-decide what has 

already been decided. Yet here we are.
No. 20-5419 Middlebrooks v. Parker, et al. Page 10

proliferation of labyrinthine restrictions on capital punishment.” Glossip, 576 U.S. at 898 

(Scalia, J., concurring). 

And sharp costs accrue with this exercise in raw judicial power. 

Start with the victims’ families. As the Supreme Court recently explained, “the victims 

of crime have an important interest in the timely enforcement of a [death] sentence,” which is 

undercut by decades of litigation-driven delay. Bucklew, 139 S. Ct. at 1133 (citation omitted). 

Indeed, “finality acquires an added moral dimension . . . when lengthy federal proceedings have 

run their course.” Calderon v. Thompson, 523 U.S. 538, 556 (1998). And only real finality can 

allow victims of crime to “move forward knowing the moral judgment will be carried out.” Id. 

As one can only expect, Kerrick’s murder has irrevocably upended his family’s lives. 

One state court found, “[s]ince his murder, his mother’s health has deteriorated. She has been on 

medication and will not leave the house except for doctor appointments.” State v. Middlebrooks, 

995 S.W.2d 550, 554 (Tenn. 1999). Kerrick’s mother suffered a nervous breakdown and 

repeatedly has panic attacks. Id. She has been unable to sleep at night since his murder. And 

Kerrick’s brother suffered from mood swings after blaming himself for his brother’s murder. Id. 

As this ordeal enters its fourth decade, we must not forget that every delay delivers a fresh denial 

of closure to Kerrick’s family. 

But decades of litigation also bring other less visible costs. Long delays congest the 

courts. And despite their lack of a constitutional foundation, the delays likely also deter states 

from pursuing the death penalty in the first place. See Glossip, 576 U.S. at 898 (Scalia, J., 

concurring) (noting that the death penalty’s stringent procedural costs have contributed to the 

abolition of the punishment in several states). All in all, the near-total erasure of the death 

penalty undercuts core principles of democratic governance. 

As Chief Justice Rehnquist put it, “[w]hen society promises to punish by death certain 

conduct, and then the courts fail to do so, the courts not only lessen the deterrent effect of the 

threat of capital punishment, they undermine the integrity of the entire criminal justice system.” 

Coleman, 451 U.S. at 959 (Rehnquist, J., dissenting from denial of certiorari). Federalism and 

comity are other predictable casualties when federal judges are the ones effectively nullifying a 
No. 20-5419 Middlebrooks v. Parker, et al. Page 11

state’s death penalty scheme. Cf. Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting that 

federal habeas “disturbs the State’s significant interest in repose for concluded litigation, denies 

society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree 

matched by few exercises of federal judicial authority” (citation omitted)). That may be 

appropriate when the Constitution demands it. But our death penalty jurisprudence falls far 

afield from the Constitution.

Last, but not least, these delays also take a toll on death-row inmates. Though it is often 

of their own making, many inmates live out their entire lives in prison with the sword of capital 

punishment dangling above them. One need not be a psychiatrist to understand the peculiar costs 

of this arrangement. See Glossip, 576 U.S. at 925–27 (Breyer, J., dissenting). In sum, 

intractable and prolonged litigation should be in nobody’s interest.

B.

While I may not have decided the res judicata point the same way as the panel, the 

district court can promptly resolve this case on remand. Binding precedent from both our en 

banc court and the Supreme Court renders this case a straightforward one on the merits. In In re 

Ohio Execution Protocol, we rejected a near-identical challenge to the one here. 860 F.3d 881 

(6th Cir. 2017) (en banc). Like Tennessee, Ohio had switched out pentobarbital for a midazolam 

protocol after “opponents of the death penalty successfully pressured the pharmaceutical 

companies” to cut off its pentobarbital supply. Id. at 884. And like Middlebrooks, the Ohio 

inmates proposed pentobarbital as their alternative method of execution. Id. at 890. 

In rejecting that challenge, we endorsed two conclusions that should swiftly resolve this 

case.

First, the test for “readily available” requires Middlebrooks to show more than a mere 

“possibility that [Tennessee] can obtain the active ingredient of pentobarbital.” Id. (cleaned up). 

He bears the burden to prove that Tennessee can obtain the drug with “ordinary transactional 

effort” here and now. Id. at 891. Indeed, “the inmate’s proposal must be sufficiently detailed to 

permit a finding that the State could carry it out relatively easily and reasonably quickly.” 

Bucklew, 139 S. Ct. at 1129 (cleaned up). For that reason, it’s not enough for Middlebrooks to 
No. 20-5419 Middlebrooks v. Parker, et al. Page 12

merely allege that “new facts” show Tennessee could receive an import license from the Drug 

Enforcement Administration. Indeed, it wouldn’t even be enough if Tennessee had a pending 

application with the DEA. After all, in our en banc case, Ohio had applied for such a license. 

And we noted that because “Ohio [did] not know whether the DEA will approve its application, 

or even when that decision might be made,” pentobarbital wasn’t readily available. In re Ohio 

Execution Protocol, 860 F.3d at 890–91.

Second, without more, pentobarbital’s continued availability in other jurisdictions is 

immaterial. In In re Ohio Execution Protocol, we knew that seven other states possessed 

pentobarbital. Id. at 891. But each of those states refused to share their limited supply with 

Ohio. And that was enough to close the matter. An alternative drug that no one is willing to 

supply Tennessee “is no drug at all for [Baze-Glossip] purposes.” Chavez v. Fla. SP Warden,

742 F.3d 1267, 1275 (11th Cir. 2014) (E. Carnes, C.J., concurring). 

C.

Two last points. 

A casual reader of today’s case might wonder why Middlebrooks isn’t estopped from 

making such polar-opposite arguments. Perhaps he should be, but the State didn’t raise this 

argument either before the panel or now. In future cases, states might consider arguing that 

judicial estoppel bars inmates from making inconsistent claims in order to delay proceedings. 

Rooted in equity, the rule of judicial estoppel “prevents a party from asserting a claim in a legal 

proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New 

Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citing 18 James Wm. Moore et al., Moore’s 

Federal Practice § 134.30, p. 134–62 (3d ed. 2000)). And it may prove a useful tool for 

identifying inmates who are more interested in delaying their executions than in avoiding 

unnecessary pain. See Bucklew, 139 S. Ct. at 1129. 

Though judicial estoppel resists efforts to reduce it “to any general formulation of 

principle,” three factors “typically inform the decision whether to apply the doctrine”: (1) the 

“later position must be ‘clearly inconsistent’” with the earlier one; (2) the court must accept the 

litigant’s earlier position, so adopting the later position would be inconsistent; and (3) the party 
No. 20-5419 Middlebrooks v. Parker, et al. Page 13

seeking to change its position “would derive an unfair advantage or impose an unfair detriment 

on the opposing party if not estopped.” New Hampshire, 532 U.S. at 750–51 (citation omitted).

To be sure, Middlebrooks never convinced the state courts that pentobarbital violated the 

Constitution. But judicial estoppel’s equitable roots mean these factors are not “inflexible 

prerequisites or an exhaustive formula” for determining the doctrine’s limits. Id. at 751. Instead, 

we apply the doctrine with the understanding that its purpose is “to protect the integrity of the 

judicial process.” Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982). In other 

words, judicial estoppel aims to stop parties from “playing fast and loose with the courts.” 18B 

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4477.2 (2d ed., 

Supp. 2021) (cleaned up). And for the reasons I discuss above, a case like this one might 

comfortably fit within the doctrine’s elastic scope. After all, Middlebrooks’s gamesmanship 

evinces an utter disregard for our “entire criminal justice system.” Coleman, 451 U.S. at 959 

(Rehnquist, J., dissenting from denial of certiorari). 

And relatedly, the way an inmate pleads his method-of-execution challenge can have 

important procedural implications. Suppose Middlebrooks—knowing he had previously 

challenged pentobarbital—had identified only nitrogen hypoxia as an alternative. Nitrogen 

hypoxia isn’t authorized under Tennessee law. In such a case, his action should sound in habeas 

rather than § 1983. Why? Because, as the Eleventh Circuit has persuasively explained, his 

requested relief in such a case would “necessarily imply the invalidity of his death sentence”—

that is, allowing execution only by nitrogen hypoxia would effectively preclude the State from 

enforcing his sentence. Nance v. Comm’r, Ga. Dep’t of Corr., 981 F.3d 1201, 1203 (11th Cir. 

2020); cf. Nelson v. Campbell, 541 U.S. 637, 644 (2004); Hill v. McDonough, 547 U.S. 573, 579 

(2006); Bucklew, 139 S. Ct. at 1128. And if that’s right, then it follows that such a suit is 

cognizable only under habeas. See Edwards v. Balisok, 520 U.S. 641, 643 (1997) (“[A] state 

prisoner’s claim for damages is not cognizable under 42 U.S.C. § 1983 if ‘a judgment in favor of 

the plaintiff would necessarily imply the invalidity of his conviction or sentence.’” (quoting Heck 

v. Humphrey, 512 U.S. 477, 487 (1994))).

I recognize that our caselaw may not currently support placing these challenges 

exclusively in the habeas bucket. See In re Campbell, 874 F.3d 454, 465–66 (6th Cir. 2017). 
No. 20-5419 Middlebrooks v. Parker, et al. Page 14

But our precedent on the question predates Bucklew. Since Bucklew updated our method-ofexecution jurisprudence, we should revisit our caselaw when the appropriate vehicle arrives. 

***

The Constitution does not promise inmates “a painless death.” Bucklew, 139 S. Ct. at 

1124. It forbids only cruel and unusual methods of punishment. And that is a high bar. Indeed, 

Justice Story believed the Eighth Amendment would be “unnecessary” as no “free government” 

would permit the sort of punishments the amendment prohibits. 3 Joseph L. Story, 

Commentaries on the Constitution of the United States § 1896, p. 750 (1833). 

The states have kept their end of the bargain. Tennessee, like many of its sister states, 

adopted lethal injection aiming to minimize the risk of pain. See Bucklew, 139 S. Ct. at 1124–25. 

But these good intentions have not gone unpunished. Instead, states have been greeted with a 

flood of method-of-execution challenges. 

This case is a poster child of death penalty litigation at its worst. Middlebrooks has been 

challenging his sentence in one form or another for thirty-two years—more than twice the time 

Kerrick ever got to enjoy on Earth. Cf. Davis v. Ayala, 576 U.S. 257, 290 (2015) (Thomas, J., 

concurring). 

At some point, enough is enough. 

ENTERED BY ORDER OF THE COURT

__________________________________

Deborah S. Hunt, Clerk