Director, Center for Supreme Court AdvocacyNational Association of Attorneys General
This Report summarizes an opinion issued on January 20, 2022 (Part I); and cases granted review on January 14, 2022 (Part II).
Cases Granted Review: Nance v. Ward, 21-439
Nance v. Ward, 21-439. This case raises the question of which procedural vehicle a capital inmate must use—an action under 42 U.S.C. §1983 or a habeas petition—to challenge his method of execution when he proposes an alternative method of execution not authorized by state law. Petitioner Michael Nance is an inmate on death row in Georgia, where the only statutorily-authorized method of execution is lethal injection. Nance, however, claims that he has underlying medical issues that would present a substantial risk of unnecessary pain during the execution process. On this basis, Nance filed a complaint under §1983 seeking an injunction against the use of lethal injection on the grounds that it violated his Eighth Amendment to be free from cruel and unusual punishment. Relying on prior precedent that required Nance to plead a “feasible, readily implemented” alternative to lethal injection, Nance suggested death by firing squad. The district court dismissed his complaint. A divided panel of the Eleventh Circuit affirmed. 981 F.3d 1201.
Because Nance sought an injunction against the only method of execution authorized by the state, the Eleventh Circuit construed his complaint as challenging the imposition of his capital sentence. And because an attack on the validity of a sentence could only be challenged through a habeas petition, the court concluded that dismissal of Nance’s §1983 complaint was required. The Eleventh Circuit further held that, even if Nance’s challenge had been raised through a habeas petition, he would be barred from relief under the restrictions governing second or successive petitions because he had previously brought a habeas petition contesting the validity of his death sentence.
Nance argues that the Eleventh Circuit’s decision improperly characterized his challenge as an attack on the validity of his sentence, which may be raised solely through habeas, rather than a challenge to the conditions of his confinement, which may be raised under §1983. Nance emphasizes that he does not seek to challenge the underlying imposition of his death sentence, but rather the manner in which it is to be carried out as applied to him. Relying on precedent suggesting that Eighth Amendment rights “can’t be controlled by the State’s choice of which methods to authorize in its statutes,” Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019), Nance also paints as faulty the court’s reliance on the fact that lethal injection is the only statutorily-authorized method of execution in Georgia. Nance instead notes that he has identified a method of execution—the firing squad—that would not present the same constitutional concerns as lethal injection. Nance also argues that, even if a claim such as his must be brought in a habeas petition, that claim would not fall within the restrictions governing successive petitions. Nance argues that the rules governing successive habeas petitions should not apply to claims, such as his, that only become ripe after the conclusion of a prior habeas petition. In doing so, Nance analogizes to the Court’s decision in Panetti v. Quarterman, 551 U.S. 930 (2007), which held that claims relating to an inmate’s competency to be executed fell outside the successive petitions restriction. Nance asserts that, if petitions raising claims such as his are denied as successive, it would as a practical matter preclude any federal review of an inmate’s claim that a method of execution would violate his constitutional rights in any state that has only one statutorily authorized method of execution.
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]