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Price v. Dunn

United States Supreme Court

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.


         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 last-minute, dilatory filings. I therefore begin by more fully recounting the "circumstances as they [were] presented to 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 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 "possibility]," 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); 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 well-heeled 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- 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-5Oa. 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 Bucklews 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, ...

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