Cite as: 587 U. S. ____ (2019) 1 

THOMAS, J., concurring 

SUPREME COURT OF THE UNITED STATES 

CHRISTOPHER LEE PRICE, PETITIONER v. 

JEFFERSON S. DUNN, COMMISSIONER, 

ALABAMA DEPARTMENT OF 

CORRECTIONS, ET AL. 

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT 

No. 18–1249 Decided May 13, 2019 

The petition for a writ of certiorari is denied. 

JUSTICE THOMAS, with whom JUSTICE ALITO and 

JUSTICE GORSUCH join, concurring in the denial of

certiorari. 

I concur in the denial of certiorari. I write separately to

set the record straight regarding the Court’s earlier orders

vacating the stays of execution entered by the District

Court and the Court of Appeals in this case. See Dunn v. 

Price, 587 U. S. ___ (2019). In a late-night dissenting

opinion accompanying one of those orders, JUSTICE 

BREYER asserted that petitioner’s death sentence was 

being “carried out in an arbitrary way” and that Members

of this Court deviated from “basic principles of fairness.” 

Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the

circumstances leading to the now-delayed execution makes 

clear that petitioner’s execution was set to proceed in a

procedurally unremarkable and constitutionally acceptable manner. 

I 

The dissent omitted any discussion of the murder that

warranted petitioner’s sentence of death and the extensive 

procedural protections afforded to him before his lastminute, dilatory filings. I therefore begin by more fully 

recounting the “circumstances as they [were] presented to 
 

 

 

2 PRICE v. DUNN 

THOMAS, J., concurring 

our Court.” Id., at ___ (slip op., at 1). 

On the evening of Sunday, December 22, 1991, Bill 

Lynn, a minister, and his wife Bessie returned home after 

church. Price v. State, 725 So. 2d 1003, 1011 (Ala. Crim. 

App. 1997). Bill began assembling Christmas toys for his

grandchildren while Bessie prepared for bed. Ibid. After 

the electricity appeared to fail, Bill went outside to check

the power box. Ibid. He was then brutally attacked with 

a sword and a knife by petitioner and his accomplice. Id., 

at 1011, 1015. According to the trial court, Bill suffered a 

total of 38 “cuts, lacerations, and stab wounds.” App. to

Pet. for Cert., O.T. 2018, No. 18–8766, p. 230a (18–8766 

App.). “One of his arms was almost severed,” and “[h]is 

scalp was detached from [his] skull.” Ibid. Bessie tried to 

call the police, but the phone lines were cut. Price, 725 

So. 2d, at 1011. When she tried to escape and go get help,

petitioner and his accomplice ordered her out of the van 

and attacked her, too. Ibid. They also stole checks, cash, 

and firearms, and even demanded Bessie hand over her 

wedding bands. Id., at 1011–1012. Bill “died a slow, 

lingering and painful death.” 18–8766 App., at 230a.

Petitioner later confessed, and an Alabama jury convicted him of capital murder and first-degree robbery. Price, 

725 So. 2d, at 1011–1012. The jury recommended death,

which the trial court imposed after finding that the killing 

was committed during the course of a robbery and that it

was particularly heinous, atrocious, or cruel. Id., at 1011, 

1034–1035. Petitioner’s conviction and sentence were 

affirmed on direct appeal and his conviction became final

in 1999. See Price, 725 So. 2d 1003, aff ’d, Ex parte Price, 

725 So. 2d 1063 (Ala. 1998), cert. denied, 526 U. S. 1133

(1999).

Twenty years later, after multiple unsuccessful attempts to obtain postconviction relief,* petitioner brought 

—————— 

*See Price v. State, 880 So. 2d 502 (Ala. Crim. App. 2003) (Table); 
 

Cite as: 587 U. S. ____ (2019) 3 

THOMAS, J., concurring 

an action under 42 U. S. C. §1983 attacking the constitutionality of the State’s lethal injection protocol. Record in 

Price v. Dunn, No. 14–cv–472 (SD Ala.), Doc. 1 (Record 

14–cv–472). Following our decision in Glossip v. Gross, 

576 U. S. ___, ___ (2015) (slip op., at 13), which confirmed 

that prisoners challenging a State’s method of execution 

must “establish the existence of a known and available 

alternative method of execution that would entail a significantly less severe risk” of pain, petitioner amended his 

complaint to propose an alternative compounded drug.

See Record 14–cv–472, Doc. 32, p. 19–20. The District 

Court entered judgment for the State, explaining that 

petitioner had failed to show that this alternative was 

readily available. App. to Pet. for Cert. 38a–39a.

While petitioner’s appeal was pending before the Eleventh Circuit, Alabama enacted Act 2018–353, which approved nitrogen hypoxia as an alternative to lethal injection. Death-row inmates whose convictions were final 

before June 1, 2018, had 30 days from that date to elect to

be executed via nitrogen hypoxia. Ala. Code §15–18– 

82.1(b)(2) (2018). As the Eleventh Circuit noted in affirming the District Court, petitioner did not do so. Price v. 

Commissioner, Ala. Dept. of Corrections, 752 Fed. Appx. 

701, 703, n. 3 (2018). 

According to JUSTICE BREYER, the warden may not have

given petitioner an election form until “72 hours” before

the June 30 deadline. Price, 587 U. S., at ___ (slip op., at 

5). That “possibil[ity],” ibid., even if true, is irrelevant. As 

an initial matter, petitioner (like all other individuals) is 

presumed to be aware of the law and thus the June 30

deadline. Moreover, the Alabama statute neither required

special notice to inmates nor mandated the use of a particular form. It merely required that the election be “per-

—————— 

Price v. Allen, 679 F. 3d 1315 (CA11 2012), cert. denied, 568 U. S. 1212 

(2013); Price v. State, 265 So. 3d 366 (Ala. Crim. App. 2017) (Table). 
 

 

4 PRICE v. DUNN 

THOMAS, J., concurring 

sonally made by the [inmate] in writing and delivered to

the warden.” Ala. Code §15–18–82.1(b)(2). Cynthia Stewart, the warden at Holman Correctional Facility, went

beyond what the statute required by affirmatively providing death-row inmates at Holman a written election form

and an envelope in which they could return it to her. 18– 

8766 App., at 181a. No fewer than 48 other inmates took 

advantage of this election. Petitioner did not, even though 

he was represented throughout this time period by a wellheeled Boston law firm. 

It was not until January 27, 2019—two weeks after the

State sought to set an execution date and six months after 

petitioner declined to elect nitrogen hypoxia—that petitioner’s counsel asked the warden, for the first time, that 

petitioner be executed through nitrogen hypoxia instead of 

lethal injection. The warden explained that she was unable to accept the belated request under state law. Petitioner’s counsel then approached the State’s counsel, who 

gave the same response. On February 8, petitioner filed

another §1983 action challenging the constitutionality of 

Alabama’s lethal injection protocol under the Eighth 

Amendment and proposing nitrogen hypoxia as an alternative. See Bucklew v. Precythe, 587 U. S. ___, ___ (2019)

(slip op., at 20) (requiring a prisoner bringing a §1983

method of execution claim to “identif[y] a feasible and

readily implemented alternative method of execution the

State refused to adopt without a legitimate reason, even

though it would significantly reduce a substantial risk of

severe pain”). On March 1, the Alabama Supreme Court 

set petitioner’s execution date for April 11.

On April 5, the District Court denied petitioner’s motion

for a preliminary injunction to stay his execution pending 

resolution of his new §1983 claim. 18–8766 App., at 54a.

The court found that nitrogen hypoxia could not be “readily implemented” because although Alabama had legally

approved nitrogen hypoxia as a future method of execu-
Cite as: 587 U. S. ____ (2019) 5 

THOMAS, J., concurring 

tion, the State was still preparing its execution protocol. 

Id., at 48a–49a. It also found that the State had “legitimate reason[s]” for declining to use nitrogen hypoxia—

namely, that petitioner failed to comply with the statutory 

deadline. Id., at 49a–50a. But the court stated that 

petitioner was likely to prevail on the question whether 

execution by nitrogen “would provide a significant reduction in the substantial risk of severe pain” as compared to

execution by lethal injection. Id., at 52a. That same day, 

petitioner filed a motion for reconsideration in which he 

proposed, for the first time, his own one-page “execution

protocol” for nitrogen hypoxia. Record in Price v. Dunn, 

No. 19–0057, Doc. 33, at 4, and n. 2 (Record No. 19–0057). 

The court denied the motion because petitioner “still

fail[ed] to show that [a nitrogen hypoxia execution protocol] may be readily implemented by the State and that the

State does not have [a] legitimate reason for refusing his 

untimely request.” 18–8766 App., at 28a.

On April 10, the Eleventh Circuit affirmed on alternative grounds and denied petitioner’s motion to stay his

execution. Price v. Commissioner, Ala. Dept. of Corrections, 920 F. 3d 1317 (2019). The court acknowledged that 

petitioner “did not come forward with sufficient detail 

about how the State could implement nitrogen hypoxia to

satisfy Bucklew’s requirement where the inmate proposes

a new method of execution.” Id., at 1328. But it concluded 

that this failure was irrelevant because the State had 

officially adopted that method of execution. Id., at 1328– 

1329. Nonetheless, the court held that the District Court 

erred in concluding that petitioner had met his burden to

show that his proposed alternative method would significantly reduce the risk of substantial pain. Id., at 1329– 

1331. In particular, the court held that the District Court 

had before it “no reliable evidence” from which to conclude 

that nitrogen would reduce petitioner’s risk of pain in 

execution, as compared to the lethal injection protocol. 
 

 

 

 

6 PRICE v. DUNN 

THOMAS, J., concurring 

Id., at 1330. It noted that in reaching the contrary conclusion, the District Court had relied on a preliminary draft 

report by East Central University marked “Do Not Cite.” 

Ibid. 

A few hours before his scheduled execution on April 11,

petitioner filed a petition for a writ of certiorari and an

accompanying application for a stay of his execution. 

Price v. Dunn, O.T. 2018, No. 18–8766 (18A1044). While 

that petition and application were pending here, and 

before any mandate issued from the Eleventh Circuit,

petitioner filed yet another motion for a preliminary injunction in the District Court. Record No. 19–0057, Doc. 

45. Petitioner attached several affidavits and a final 

version of the report by the East Central University. The 

District Court granted a stay approximately two hours

before the scheduled execution time of 6 p.m. central time,

holding that, in light of the Eleventh Circuit’s opinion and 

the new submissions, petitioner had now demonstrated a

likelihood of success on the merits. Id., Doc. 49, at 9–10, 

13. The State immediately filed in the Eleventh Circuit a 

motion to vacate on the ground that the District Court

lacked jurisdiction over the case, which was still at the 

Eleventh Circuit. But the Eleventh Circuit entered its 

own stay “in light of the jurisdictional questions raised by

the parties’ motions.” 2019 WL1591475, *1 (Apr. 11, 

2019). The State then promptly filed an application to

vacate the stays in this Court so that it could carry out the

execution as planned before the warrant expired at midnight. Dunn v. Price, O.T. 2018, No. 18A1053. 

II 

We granted the State’s application to vacate the stays. 

Consistent with our usual practice in resolving eleventhhour applications, we did not issue a full opinion explaining our reasoning. Yet our brief order was not issued until 

hours after the execution warrant had already expired. 
 

 

 

Cite as: 587 U. S. ____ (2019) 7 

THOMAS, J., concurring 

The Court’s delay in issuing the order happens to have the

same effect as JUSTICE BREYER’s preferred course of action. As he explained in his dissent, he preferred to discuss the matter at Conference the following day, which

would require the State to “obtain a new execution warrant, thus delaying the execution.” Price, 587 U. S., at 

___–___ (slip op., at 4–5). JUSTICE BREYER asserted that 

“delay was warranted” in part because the legal issues

raised were “substantial.” Id., at ___ (slip op., at 5). That 

rationale does not withstand even minimal legal scrutiny.

JUSTICE BREYER framed the issue before the Court as 

“the right of a condemned inmate not to be subjected to 

cruel and unusual punishment in violation of the Eighth

Amendment.” Id., at ___ (slip op., at 6). That framing was 

incorrect. The issue before the Court was whether the 

lower courts abused their discretion in staying the execution. For three independent reasons—all raised by the 

State in its application—the State was entitled to vacatur.

The dissent failed to adequately address any of them. 

First, the District Court abused its discretion in granting a preliminary injunction because it manifestly lacked 

jurisdiction over the case, which was pending in the Court

of Appeals. It is well settled that “[f]iling a notice of appeal,” as petitioner did, “transfers adjudicatory authority 

from the district court to the court of appeals.” Manrique 

v. United States, 581 U. S. ___, ___ (2017) (slip op., at 3).

“The filing of a notice of appeal is an event of jurisdictional 

significance—it confers jurisdiction on the court of appeals

and divests the district court of its control over those 

aspects of the case involved in the appeal.” Griggs v. 

Provident Consumer Discount Co., 459 U. S. 56, 58 (1982) 

(per curiam). Thus, as the Eleventh Circuit has long 

recognized, “a district court generally is without jurisdiction to rule in a case that is on appeal”—even after the

court has rendered a decision—“until the mandate has 

issued.” Zaklama v. Mt. Sinai Medical Center, 906 F. 2d 
 

 

8 PRICE v. DUNN 

THOMAS, J., concurring 

645, 649 (1990); see also Kusay v. United States, 62 F. 3d 

192, 194 (CA7 1995) (Easterbrook, J.) (until the Court of 

Appeals issues its mandate, the case remains in the Court 

of Appeals, and “any action by the district court is a nullity”); 16AA C. Wright & A. Miller, Federal Practice and 

Procedure §3987, p. 612 (3d ed. 2008) (Wright & Miller). 

In this case, there was no dispute that the Eleventh Circuit had not yet issued its mandate when petitioner

sought a preliminary injunction from the District Court on

the same issues pending in the Court of Appeals. The 

District Court therefore lacked authority to grant the

preliminary injunction, and the Court of Appeals abused 

its discretion in granting a stay instead of vacating the 

preliminary injunction.

Even if the Eleventh Circuit believed that the jurisdictional issue was difficult, that belief still would not have 

been a sufficient reason to grant a stay. Under the traditional stay factors, a petitioner is required to make “‘a 

strong showing that he is likely to succeed on the merits.’” 

Nken v. Holder, 556 U. S. 418, 434 (2009). It is not 

enough, as the dissent suggests, that the question be 

“substantial.” Price, 587 U. S., at ___ (slip op., at 5). But 

the question is not even “substantial.” The dissent relied 

only on an out-of-context quote from a treatise to support

its position that this jurisdictional question was difficult.

See id., at ___ (slip op., at 6) (“‘An interlocutory appeal 

ordinarily suspends the power of the district court to 

modify the order subject to appeal, but does not oust

district-court jurisdiction to continue with proceedings

that do not threaten the orderly disposition of the interlocutory appeal’” (quoting 16A Wright & Miller §3949.1, 

p. 50)). The section from which this statement is plucked, 

however, reiterates that a notice of appeal “‘is an event of 

jurisdictional significance” that “divests the district court

of its control over those aspects of the case involved in the 

appeal.’” See ibid. (quoting Griggs, supra at 58). The 
 

Cite as: 587 U. S. ____ (2019) 9 

THOMAS, J., concurring 

exceptions to this rule pertain to matters outside the scope 

of the appeal or in aid of the Court of Appeals’ jurisdiction, 

such as taxing costs, awarding attorney’s fees, or reducing

to writing an earlier oral decision without altering its

substance. 16A Wright & Miller §3949.1. Those exceptions were not applicable to petitioner’s case. The issue 

before the Eleventh Circuit was whether petitioner was

entitled to a preliminary injunction based on petitioner’s

claim that he should be executed using nitrogen hypoxia—

the exact claim petitioner raised in the District Court.

There is no question that the District Court was deprived 

of jurisdiction to hear the identical claim and award the 

exact same relief petitioner sought from the Eleventh 

Circuit. To suggest that this question was difficult or that

the Court was “deeply misguided” to follow black-letter

law is at best disingenuous. See Price, 587 U. S., at ___ 

(slip op., at 6).

Second, the Eleventh Circuit did not consider how petitioner’s unjustified delay in presenting his “new evidence” 

to the District Court factored into the equitable considerations of a stay. See Hill v. McDonough, 547 U. S. 573, 584 

(2006) (equity weighs against a stay when “‘a claim could 

have been brought at such a time as to allow consideration 

of the merits without requiring entry of a stay’”). Notably,

the Eleventh Circuit did not conclude that petitioner’s new

affidavits or the “final” version of the report made him

likely to succeed on the merits or that those materials 

were unavailable to him earlier. And more broadly, petitioner delayed in bringing this successive §1983 action

until almost a year after Alabama enacted the legislation 

authorizing nitrogen hypoxia as an alternative method,

six months after he forwent electing it as his preferred 

method, and weeks after the State sought to set an execution date. There is simply no plausible explanation for the 

delay other than litigation strategy. A stay under these

circumstances—in which the petitioner inexcusably filed 
 

 

10 PRICE v. DUNN 

THOMAS, J., concurring 

additional evidence hours before his scheduled execution 

after delaying bringing his challenge in the first place—

only encourages the proliferation of dilatory litigation

strategies that we have recently and repeatedly sought to

discourage. See Bucklew, 587 U. S., at ___–___ (slip op., at 

30–31); Dunn v. Ray, 586 U. S. ___, ____ (2019) (slip op., 

at 1).

Third, petitioner was unlikely to succeed on the merits 

of his method-of-execution claim. The three-drug protocol

petitioner attacks is the very one we upheld in Glossip. 

And the Eleventh Circuit’s April 10 analysis about whether 

nitrogen hypoxia was “available” and could be “readily 

implemented” was suspect under our precedent. As we 

recently held, “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, 

supra, at ___ (slip op., at 21) (internal quotation marks

omitted). Here, petitioner’s haphazard, one-page proposed 

protocol—provided for the first time in his motion for 

reconsideration less than a week before his scheduled 

execution date—was, to put it charitably, untested. It 

contemplated that the execution team could use a “hose 

fitting” to “fill” a “hood” with nitrogen gas, and then attempt to “[p]lace [the] hood over [the] inmate’s head” and

“secure” it with an “elastic strap/drawstring to ensure 

seal.” Record 19–0057, Doc. 33, at 4. Even if all the 

equipment were available on Amazon.com, as he alleged, 

many details remained unanswered, particularly regarding the actual process of administering the gas and, critically, the safety of the state employees administering it.

For instance, what does “a robust yet controlled flow of 

nitrogen” mean? Ibid. How full of nitrogen gas should the 

hood be before placing it over the inmate’s head? How 

does one prevent nitrogen from seeping out of the hood

into the execution chamber before the hood is secured? 

The need to settle on details like these explains why the 
 

 

Cite as: 587 U. S. ____ (2019) 11 

THOMAS, J., concurring 

State has repeatedly stated that it will not be ready to

implement its nitrogen hypoxia method until the end of 

the summer or later (and why the State requested that

inmates elect nitrogen within a set time period). Petitioner’s proposal certainly fell short of showing a safe alternative that could be “readily implemented” by Alabama,

particularly in the week before his scheduled execution. 

The facts of this case cast serious doubt on the Eleventh 

Circuit’s suggestion that the State bears a heavy burden of

showing that a method of execution is unavailable as soon 

as its legislature authorizes it to employ a new method.

That kind of burden-shifting framework would perversely 

incentivize States to delay or even refrain from approving 

even the most humane methods of execution. 

As for petition No. 18–8766—the challenge to the original order denying petitioner a preliminary injunction—

and its accompanying stay application, four Justices noted, 

without explanation, that they would have stayed the

execution to allow consideration of this petition as well. It 

is unclear what legal issue they believed warranted our 

review. Petitioner did not identify a lower court conflict

on an important question of law—certainly not one passed 

on by the Eleventh Circuit. Instead, petitioner asked the 

Court to engage in mere error correction about the scope of

evidence that the District Court may consider in deciding

whether to grant a preliminary-injunction motion, and 

about the scope of appellate review. The dissenting Justices made no attempt to explain how those issues warranted our review. 

For these reasons, our decisions to vacate the stays

entered by the lower courts and decline to grant a stay

were undoubtedly correct. 

III 

Given petitioner’s weak position under the law, it is 

difficult to see his litigation strategy as anything other 
 

12 PRICE v. DUNN 

THOMAS, J., concurring 

than an attempt to delay his execution. Yet four Members 

of the Court would have countenanced his tactics without 

a shred of legal support. Indeed, JUSTICE BREYER’s sixpage dissent musters only one, nonprecedential case citation for a proposition of law. See Price, 587 U. S., at ___ 

(slip op., at 6) (citing Bowersox v. Williams, 517 U. S. 345, 

347 (1996) (GINSBURG, J., dissenting)). To be sure, the 

dissent gestures at a compressed timeframe, as if to suggest the legal issues were too complicated to allow reasoned consideration before the State’s execution warrant 

expired. But as explained above, the legal issues were 

remarkably straightforward. And any blame for decisions 

“in the middle of the night,” 587 U. S., at ___ (slip op., at 

7), falls on petitioner, who filed the new preliminary injunction motion that resulted in the stays just five hours 

before his execution. 

Insofar as JUSTICE BREYER was serious in suggesting 

that the Court simply “take no action” on the State’s 

emergency motion to vacate until the following day, id., at 

___ (slip op., at 4), it should be obvious that emergency

applications ordinarily cannot be scheduled for discussion 

at weekly (or sometimes more infrequent) Conferences.

This approach would only further incentivize prisoners to 

file dilatory challenges to their executions by rewarding

them with de facto stays of execution while requiring 

timely petitioners to meet the ordinary legal standards for 

a stay. JUSTICE BREYER’s approach would also have significant real-world consequences. It would hamper the

States’ ability to carry out lawful judgments, while simultaneously flooding the courts with last-minute, meritless 

filings. And this practice would harm victims. Take 

Bessie Lynn, Bill’s widow who witnessed his horrific slaying and was herself attacked by petitioner. She waited for 

hours with her daughters to witness petitioner’s execution, 

but was forced to leave without closure. See Alabama, 

Running Out of Time, Halts Execution of Sword and Dag-
 

 

 

 

 

Cite as: 587 U. S. ____ (2019) 13 

THOMAS, J., concurring 

ger Killer of Pastor,” CBS News, (Apr. 12, 2019),

https://www.cbsnews.com / news / alabama - sword - dagger -

killer-christopher-lee-price-execution-halted-pastor-billlynn/ (all Internet materials as last visited on May 9,

2019); Execution Called Off for Christopher Price; 

SCOTUS Decision Allowing It Came Too Late (Apr.

11 2019), https://www.al.com/news/birmingham/2019/04/

christopher-price-set-to-be-executed-thursday-evening-for1991-slaying-of-minister.html. This “injustice, in the form

of justice delayed,” ibid., would become the norm if the 

Court were to regularly delay resolution of emergency

applications.

Of course, the dissent got its way by default. Petitioner’s strategy is no secret, for it is the same strategy adopted 

by many death-row inmates with an impending execution: bring last-minute claims that will delay the 

execution, no matter how groundless. The proper response to this maneuvering is to deny meritless requests 

expeditiously. The Court instead failed to issue an order 

before the expiration of the warrant at midnight, forcing

the State to “cal[l] off ” the execution. Price, 587 U. S., at 

___ (slip op., at 5). To the extent the Court’s failure to 

issue a timely order was attributable to our own dallying,

such delay both rewards gamesmanship and threatens to

make last-minute stay applications the norm instead of 

the exception. See Bucklew, 587 U. S., at ___ (slip op., 

at 30).

Perhaps those who oppose capital punishment will

celebrate the last-minute cancellation of lawful executions. 

But “[t]he Constitution allows capital punishment,” id., 

587 U. S., at ___, (slip op., at 8), and by enabling the delay 

of petitioner’s execution on April 11, we worked a “miscarriage of justice” on the State of Alabama, Bessie Lynn, and 

her family. Governor Ivey Releases Statement on Stay of 

Execution for Death Row Inmate Christopher Lee Price,

(Apr. 12, 2019), https://governor.alabama.gov/statements/ 
 

 

14 PRICE v. DUNN 

THOMAS, J., concurring 

governor -ivey- releases - statement- on- stay - of- executionfor-death-row-inmate-christopher-lee-price.