PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 96-9334 

ELLIS WAYNE FELKER,

LARRY GRANT LONCHAR,

Plaintiffs-Appellants,

versus

TONY TURPIN, WAYNE GARNER,

JOHN DOE,

Defendants-Appellees.

 

 Appeal from the United States District Court

for the Middle District of Georgia

 

(November 13, 1996)

Before TJOFLAT, COX and DUBINA, Circuit Judges.

PER CURIAM:
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Ellis Wayne Felker and Larry Grant Lonchar (collectively

"Plaintiffs") are Georgia inmates under sentence of death. On

November 8, 1996, less than one week prior to their scheduled

executions, they filed a 42 U.S.C. § 1983 action in the Middle

District of Georgia. In their complaint, they alleged that

Georgia's use of electrocution to carry out a death sentence

constitutes cruel and unusual punishment in violation of the

Eighth and Fourteenth Amendments. They requested declaratory and

injunctive relief. Following review of arguments and affidavits,

the district court issued an order denying their request for a

preliminary injunction and declaratory relief, concluding that

they had no chance of success on the merits. The court then

entered final judgment denying relief. Plaintiffs now appeal. 

Plaintiffs have filed a motion for expedited oral argument

and review. The request that review be expedited is GRANTED. 

The request for oral argument is DENIED. We now address the

merits of Plaintiffs' appeal, which presents a single issue: 

whether the district court erred as a matter of law in denying

relief on their Eighth Amendment claim.

I. RELEVANT PROCEDURAL HISTORY 

Prior to filing their § 1983 complaint, Plaintiffs filed

separate 28 U.S.C. § 2254 petitions for writs of habeas corpus in

the Middle District of Georgia. In Lonchar's petition, Lonchar

challenged, among other things, the constitutionality of Georgia's

method of execution. Upon Lonchar's motion, the district court

dismissed the petition with prejudice. In Felker's petition,
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Felker challenged the constitutionality of his conviction and

sentence, but did not challenge Georgia's method of execution. In

1995, we affirmed denial of that petition. See Felker v. Thomas,

52 F.3d 907, 913 (11th Cir.), extended on denial of rehearing, 62

F.3d 342 (11th Cir. 1995), cert. denied, 116 S.Ct. 956 (1996). 

II. DISCUSSION

A. § 1983 CLAIM SUBJECT TO SECOND OR SUCCESSIVE HABEAS RULES

Guided by Gomez v. United States District Court, 503 U.S. 653,

112 S.Ct. 1652 (1992), as interpreted by Lonchar v. Thomas, 116

S.Ct. 1293, 1301 (1996), we conclude that Plaintiffs' § 1983 claim

is subject to the procedural requirements for bringing a second or

successive habeas claim. 

In Gomez, the Court refused to consider the merits of a

plaintiff's cruel and unusual punishment claim brought under § 1983

where the plaintiff did not raise that claim in his earlier habeas

petitions. According to the Court, habeas rules "would apply, even

if § 1983 [was] also a proper vehicle for his 'method of execution'

claim...." Lonchar, 116 S.Ct. at 1301 (interpreting Gomez). In

other words, Gomez held that a plaintiff cannot escape the rules

regarding second or successive habeas petitions by simply filing a

§ 1983 claim.

We treat Plaintiffs' § 1983 cruel and unusual punishment claim

as the functional equivalent of a second habeas petition, see

Gomez, 112 S.Ct. at 1653 (1992), and apply the rules regulating
 1 In light of Gomez, we decline to follow Sullivan v.

Dugger, 721 F.2d 719, 720 (11th Cir. 1983), to the extent that it

can be read to imply that a petitioner may bring a cruel and

unusual punishment claim under § 1983 without being subject to the

procedural rules governing second or successive petitions.

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second or successive habeas petitions.1 Because Plaintiffs failed

to apply for permission to file a second habeas petition as

required by 28 U.S.C. § 2244(b)(3)(A), as amended by the

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.

104-132, tit. I (1996), the district court was without authority to

consider their request for relief. 

Moreover, the facts alleged do not show that Felker could meet

the § 2244(b)(2) requirements for filing a second or successive

petition. Specifically, his cruel and unusual punishment claim

neither "relies on a new rule of constitutional law, made

retroactive to cases on collateral review by the Supreme Court,

that was previously unavailable;" nor has a "factual predicate

[that] could not have been discovered previously through the

exercise of due diligence...." See 28 U.S.C. § 2244(b)(2).

Therefore, we would have denied any application for permission to

file a second habeas petition made by Felker.

Lonchar could not present his claim in a second habeas

petition because he presented the exact same claim in his previous

federal habeas petition. "A claim presented in a second or

successive habeas corpus application under section 2254 that was

presented in a prior application shall be dismissed." 28 U.S.C. §

2244(b)(1).
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B. § 1983 CLAIM AS DISTINCT FROM SECOND OR SUCCESSIVE HABEAS

PETITION

Even if we were to assume that Plaintiffs' action was properly

brought under § 1983 and not subject to habeas procedural

requirements, we would conclude the district court properly denied

Plaintiffs' claim for relief. 

In light of overwhelming precedent, we conclude there is no

merit in Plaintiffs' claim that death by electrocution constitutes

cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments. See In re Kemmler, 136 U.S. 436, 443-44, 10

S.Ct. 930, 932 (1890); Porter v. Wainwright, 805 F.2d 930, 943 n.

15 (11th Cir. 1986); Funchess v. Wainwright, 788 F.2d 1443, 1446

(11th Cir.), cert. denied, 475 U.S. 1133, 106 S.Ct. 1668 (1986);

Sullivan v. Dugger, 721 F.2d 719, 720 (11th Cir. 1983); Spinkellink

v. Wainwright, 578 F.2d 582, 616 (5th Cir. 1978). Moreover, their

contention in the district court that "there has never been an

evidentiary hearing on the effects of execution by electrocution

since the first capital defendant was killed under this method,"

Memorandum of Law in Support of Application for Preliminary

Injunction and Complaint for Declaratory and Injunctive Relief

Pursuant to 42 U.S.C. § 1983 at 6, is simply untrue. See e.g.

Sawyer v. Whitley, 772 F.Supp. 297, 307 (E.D. La. 1991)(considering

expert evidence before rejecting Eighth Amendment claim regarding

death by electrocution); Thomas v. Jones, 742 F.Supp. 598, 606-608

(S.D. Ala. 1990)(same); Buenoano v. Dugger, No. 90-473-CIV-ORL-19,

unpublished at 31-35 (M.D. Fla. June 22, 1990)(same); Ritter v.

Smith, 568 F.Supp. 1499, 1525 (S.D. Ala. 1983)(same), aff'd in part
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and rev'd in part on other grounds , 726 F.2d 1505, 1519 (11th

Cir.), and cert. denied, 469 U.S. 869, 105 S.Ct. 218 (1984).

Furthermore, Lonchar's claim is barred because of the doctrine

of issue preclusion. Under that doctrine, Lonchar is precluded

from asserting a § 1983 claim that Georgia's use of electrocution

to carry out a death sentence is unconstitutional because he raised

that issue in his prior federal habeas petition. See Quarles v.

Sager, 687 F.2d 344, 346 (11th Cir. 1982)(discussing preclusive

effect that federal habeas petition could have on a § 1983 claim);

Hawkins v. Risley, 984 F.2d 321, 323 (9th Cir. 1993)("[A] prior

federal habeas decision may have preclusive effect in a § 1983

action [even though the converse is not true].").

III. CONCLUSION

Whether analyzed as a § 2254 claim or a § 1983 claim,

Plaintiffs' claim for relief fails for the above reasons.

Therefore, the judgment of the district court is affirmed.

AFFIRMED.