HULL, Circuit Judge.
Under a sentence of death, J.W. Ledford, Jr. has his execution scheduled for Tuesday, May 16, 2017, at 7:00 p.m. On Thursday, May 11, 2017, a mere five days before his execution, Ledford challenged Georgia's method of his execution by filing a civil complaint under 42 U.S.C. § 1983. Since 2013, Georgia's execution protocol has provided for lethal injection by the administration of a single drug: five grams (5,000 milligrams) of compounded pentobarbital.
After briefing, the district court denied Ledford's motion for a temporary restraining order and dismissed Ledford's § 1983 complaint. The district court determined,
On May 12, 2017, Ledford filed a Notice of Appeal. On May 15, 2017, at 11:00 a.m., Ledford filed an "Emergency Motion for an Order Staying the Execution." After careful review, we deny Ledford's motion.
In 1992, Ledford murdered his 73-year-old neighbor, Dr. Harry Johnston, Jr., robbed Dr. Johnston's wife, and burglarized the Johnstons' home, tying up Mrs. Johnston with a rope.
After the United States Supreme Court denied Ledford's petition for certiorari,
Ledford then timely filed a 28 U.S.C. § 2254 petition in the federal district court, in which he pled multiple claims. On March 19, 2008, the district court denied Ledford's § 2254 petition.
II. STANDARD OF REVIEW
The standard governing a stay pending appeal is the same as the standard applicable to a motion for a temporary restraining order. A stay pending appeal is appropriate only if the moving party establishes: "(1) a substantial likelihood of success on the merits; (2) that the [stay] is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the [stay] would cause the other litigant; and (4) that the [stay] would not be adverse to the public interest."
III. STATUTE OF LIMITATIONS
The State argues,
An untimely complaint cannot succeed on the merits.
The right of action for a method-of-execution challenge "`accrues on the later of the date on which' direct review is completed by denial of certiorari, `or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.'"
The United States Supreme Court denied Ledford's petition for certiorari on direct review on January 9, 1995.
In October 2001, Georgia adopted lethal injection as its method of execution. O.C.G.A. § 17-10-38(a) (stating "[a]ll persons who have been convicted of a capital offense and have had imposed upon them a sentence of death shall suffer such punishment by lethal injection");
In any event, Ledford's § 1983 complaint was not filed even within twenty-four months of that March 2013 change or the July 2013 secrecy act. Ledford also alleges that he has been taking gabapentin for approximately a decade. Thus, Ledford's § 1983 claims about the interaction of those two drugs—compounded pentobarbital and gabapentin—are filed too late as well.
"A time-barred complaint cannot justify a stay of execution, regardless of whether its claims have merit."
IV. NO SUBSTANTIAL LIKELIHOOD OF SUCCESS ON THE MERITS
Alternatively, even if his claims were not time-barred, Ledford has failed to show that he is entitled to any relief at this time.
"Capital punishment, including capital punishment by lethal injection, generally is constitutional."
Instead, to prevail on an Eighth Amendment challenge to a state's lethal injection protocol, the plaintiff must establish that the method of execution presents a risk that is "`
A. Substantial Risk of Serious Harm
Ledford does not challenge Georgia's method of execution in administering a single dose of five grams of compounded pentobarbital. Rather, Ledford asserts an "as-applied" claim that, because he has taken gabapentin for a decade, that dose of pentobarbital, a mega-lethal dose, will not render him insensate quickly enough and that he will suffer serious pain during the execution.
With respect to the first required showing, Ledford's allegations and supporting documents do not establish a substantial risk of serious harm, much less a substantial likelihood of success on the merits of his claims. As noted above, where an Eighth Amendment cruel and unusual punishment claim alleges the risk of future harm, the conditions presenting the risk must be "`
We need not rely on the second requirement because Ledford has not carried his burden to show a substantial likelihood of success on his claim that, because Ledford has taken gabapentin for a decade, his execution by a lethal injection of five grams of compounded pentobarbital is sure or very likely to cause serious illness and needless suffering.
Ledford admits that fourteen Georgia inmates have been executed with five grams of pentobarbital without incident and he submits the autopsies of some of them. Interestingly, Ledford expressly admits that he is not claiming that any of these inmates (in the autopsies) were sensate during their executions. At page fifteen, footnote ten of his complaint, Ledford states: "Mr. Ledford does not allege that any of these fourteen (14) inmates were conscious or sensate during their executions."
To distinguish his case from the fourteen Georgia executions that occurred without incident, Ledford claims that five grams of pentobarbital will not render him insensate quickly enough because of his history of taking gabapentin. The State's expert directly refutes that claim. For example, Dr. Jacqueline Martin testified that "the amount administered in the Georgia Department of Corrections' Execution Protocol, 5000 mg, is more than sufficient to carry out the execution without causing Plaintiff pain despite the prior administration of 1800 mg of gabapentin per day." And even Ledford's experts do not opine how quickly five grams of pentobarbital will or will not render Ledford insensate. The expert can say only that the use of gabapentin "will diminish the effect of pentobarbital," but the district court stressed, "how much, [Dr.] Berges never says." And the district court pointed out Dr. Martin's observation that the research does "not show that gabapentin's inhibitory effect would survive the large, lethal dose of pentobarbital [used] . . . in judicial execution." The district court found that Ledford's experts did not demonstrate the substantial risk of severe pain that Ledford must demonstrate.
B. Known and Available Alternatives
Alternatively, even assuming arguendo that Ledford has shown a substantial likelihood of success on the first requirement, as to the second requirement, Ledford's complaint fails to state a plausible claim for relief. As to Georgia's lethal injection method, Ledford does not even attempt to identify an alternative procedure or drug that is "feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain."
For the above reasons, in addition to being time-barred, Ledford's complaint fails to state a plausible claim for relief. Because Ledford has not shown a substantial likelihood of success on the merits of his challenge to the lethal injection protocol, the motion for a stay is denied.
V. FIRING SQUAD CLAIM
We also agree with the district court that Ledford has not alleged sufficient facts to render it plausible that a firing squad is a feasible and readily implemented method of execution in Georgia that would significantly reduce a substantial risk of severe pain. The Georgia legislature is free, within the parameters established by the United States Constitution, to choose the method of execution it deems appropriate. Execution by lethal injection has been ruled constitutional.
In fact, Ledford's own expert, Dr. James Williams, a trauma doctor with expertise in firearms, avers: "At the present time, lethal injection of pharmacologic agents dominates the field, and, in my opinion, for good reason:
As the Supreme Court has recognized, "[t]he firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods [of execution], culminating in today's consensus on lethal injection."
In any event, Ledford asserted this firing squad claim well beyond the two-year statute of limitations governing § 1983 claims in Georgia and thus his firing squad claim is untimely.
VI. EQUITABLE RELIEF
As an alternative and independent ground, we deny Ledford's motion for a stay because a stay of execution is an equitable remedy, and Ledford has not carried his burden to demonstrate entitlement to that equitable relief.
A stay is an equitable remedy not available as a matter of right, and before a court grants a stay, it must consider "the relative harms to the parties," "the likelihood of success on the merits," and "the extent to which the inmate has delayed unnecessarily in bringing the claim."
"Given the State's significant interest in enforcing its criminal judgments, there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."
Even if not barred by the statute of limitations, Ledford's claims are barred because he has not timely made them, given he waited until five days before his execution. In any event, in our balancing of the hardships and equitable relief, we must take into account the fact that the State and the relatives of Ledford's victims have a strong interest in the finality of the criminal judgments and in seeing lawfully imposed sentences carried out in a timely manner.
Our decision in
Under all the particular facts and circumstances of this case, Ledford has not shown that he has met the equitable requirements for a stay against the State.
After review, this Court denies Ledford's motion for a stay of execution because (1) Ledford's § 1983 claims are time-barred; (2) alternatively, Ledford has not shown a substantial likelihood of success on his § 1983 claims; and (3) in any event, equitable considerations, including Ledford's delay in bringing a § 1983 complaint and the State's and the victims' interests in the finality and timely enforcement of valid criminal judgments, do not warrant the entry of a stay of Ledford's execution for this 1992 murder.
JORDAN, Circuit Judge, concurring
I join Parts I-III of the majority opinion and concur in the denial of a stay. Because Mr. Ledford's execution protocol claim is untimely under Eleventh Circuit precedent, I do not find it necessary to address the other grounds set forth by the majority.
The Sixth Circuit did affirm a district court's stay in a 2-1 opinion over a dissent, but the Sixth Circuit has now voted that case en banc.