PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
petition for a writ of certiorari is denied.
Justice Thomas, with whom Justice Alito and JUSTICE GORSUCH
join, concurring in the denial of certiorari.
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.
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
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.
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).
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.
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
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.
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.
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.
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, ...