Nelson, David v. Campbell, Donal, Commissioner, Alabama Dept. of Corrections, et al. (05/24/2004)

Questions presented: Whether a complaint brought under 42 U.S.C. Sec. 1983 by a death-sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the procedures for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. Sec. 2254?

BY ASHLEY YARCHIN, MEDILL NEWS SERVICE

David Larry Nelson began his crime rampage on Dec. 31, 1977, when he and his girlfriend, Linda Vice, first met cab driver James Dewey Cash at the Red Dog Saloon in Birmingham, Ala.

The three left in Cashs taxi, and Nelson pulled out a gun and demanded Cashs money. Nelson then shot Cash in the head and chest.

Nelson and his girlfriend left Cash in the car and went to another lounge, where they met Wilson Thompson. The three went to Thompsons mobile home in Kimberly.

Nelson ordered his girlfriend to take off her clothes and then told Thompson he could perform oral sex on her. When he did, Nelson shot a bullet which passed through Thompsons neck and wounded Vices upper thigh.

When Vice started to scream, she was shot two more times. She survived, but Thompson died.

Nelson was later arrested in Tennessee, still armed with the gun he used to shoot Thompson and Vice.

He was convicted and sentenced to death for slaying the cab driver, but the conviction and sentence were overturned.

Nelson was tried and convicted a second time in 1982, receiving a life sentence.

Nelson, who once told a jury that he wanted to be executed, was also tried twice for Thompsons death.

He was scheduled to be executed in 1996, but received a stay because of a physicians statement that he could be a kidney donor for a seriously ill brother. The brother did not receive the transplant and has since died.

The courts set another execution date for 1997. Further appeals and habeas petitions in federal court continued. In June 2002, a unanimous 11th Circuit Court of Appeals panel rejected Nelson's claim that his right to counsel was violated because he hadn't understood the risks of representing himself.

On Oct. 6, 2003, three days prior to Nelsons scheduled execution at Holman Prison in Atmore, Nelson filed a petition with the district court in the Middle District of Alabama.

Nelson claimed that he has severely compromised veins and that Alabamas proposed use of a "cut-down" procedure to gain venous access, if no other suitable vein can be found, in order to administer a lethal injection, constitutes cruel and unusual punishment in violation of the 8th and 14th Amendments.

Nelson's veins are damaged from past intravenous drug abuse and cannot tolerate the ordinary procedure for a lethal injection, according to his attorney, Michael Kennedy McIntyre. McIntyre said authorities told his client they might have to cut through skin, tissue, fat and muscle to get to a vein.

Nelson produced a doctors affidavit asserting that he could be executed by lethal injection only if medical personnel place a central line in his groin, chest or neck or cut through muscle and fat to reach a vein in his arm.

He argued that his appeal was a free-standing lawsuit, not necessarily a challenge to his conviction or sentence despite lower court rulings that it is equivalent to a challenge to his execution and is thus prohibited under federal law designed to limit death row appeals.

According to the Alabama Department of Corrections, the cut-down procedure would require making a two-inch incision in Nelson's upper arm in order to locate a peripheral vein to perform a central line procedure. A local anesthetic would be used. Alabama said that the cut-down procedure would be tried only as a last resort and that Nelson was using procedural maneuvers to avoid execution.

"Challenging the method of execution means that Nelson is trying to avoid his death sentence," said J. Clayton Crenshaw, representing Commissioner Donal Campbell of the Alabama Department of Corrections. "He wouldn't have filed anything if he didnt want to prolong his life."

McIntyre argued that the painful surgical procedure would violate his clients constitutional rights.

"A cut-down procedure is an invasive and barbaric medical procedure which does not comport with the contemporary practice of medical case," McIntyre said.

McIntyre said that it would be the first instance of Alabama performing such a medical procedure before an execution, and that there were insufficient safeguards to protect Nelsons health.

The Alabama inmate also argued that he has been denied access to his physician, which violates Alabama state law.

On Oct. 7, the district court denied Nelsons request for a stay in his Oct. 9 execution and said that he was challenging the method of execution, not just the procedure. The court indicated it was bound by 11th Circuit precedent to dismiss the case for lack of jurisdiction. Though he dismissed Nelson's motion, U.S. District Judge Myron Thompson sympathized with the catch-22 Nelson faced.

"Nelson did not know about the State's plan to use a 'cut-down' procedure until earlier this year, so he could not have raised the issue in the federal habeas action he filed in 1997. Nonetheless, he almost certainly cannot obtain relief now by filing another habeas petition because his claim does not depend on a new constitutional principle or on newly discovered facts that show actual innocence," Nelson reasoned. "Nor can Nelson obtain non-habeas relief [through a 1983 civil rights action]. The rule that a 1983 action seeking a stay of execution must be treated as a habeas petition means that, after a death row inmate has filed his first federal habeas petition, he can never obtain a stay of execution from a federal court so that court can review a claim of an Eighth Amendment claim regarding any later decision as to how the execution is to be carried out. The rule means that no matter how meritorious Nelson's claim is, and despite the fact that he could not raise his claim in his earlier habeas petition, there seems to be no way for him to obtain federal relief now."

The following day, Nelson sought emergency relief from the 11th Court of Appeals. A decision was made the same day by a divided panel.

The majority concluded, as the district judge did, that because Nelson had previously filed a federal habeas petition, his attempt this time to seek relief through a 1983 civil rights action constituted the "functional equivalent" of a second or successive habeas petition, which is impermissible.

"Moreover, even had Nelson sought our permission to file a second habeas petition, the facts alleged indicate that Nelson's application would have been denied," wrote Judge R. Lanier Anderson, III, because his cruel and unusual punishment claim should have been raised earlier.

However, Judge Charles R. Wilson dissented.

"Nelson asks not to be spared; he asks only that he be executed humanely in accordance with his constitutional rights," Wilson wrote. "The bottom line in this case is that the outcome of Nelson's petition has no effect on either his sentence or his conviction, and therefore cannot properly be construed under any circumstances as the equivalent to a subsequent habeas petition."

Nelson then requested that the 11th Circuit rehear his case, but was denied. He immediately turned to the U.S. Supreme Court.

Approximately two hours before he was scheduled to be put to death, on Oct. 9, Nelson was granted a stay of execution by the Supreme Court while the decision was being made as to whether his case would be reviewed by the Court. If the petition were to be denied, the stay would terminate automatically. However, in the event that the petition were granted, the stay would terminate according to the Courts judgment.

On Dec. 1, 2003, the Court granted certiorari in the case and limited review to the question noted above. The Court also allowed Nelson to have the case heard without costs and allowed Alabama Physicians to file an amicus brief in the case.

According to Kathryn L. Lippert, who represents Alabama Physicians, the case is of great concern for all states that use lethal injection for death penalty executions.

"It is important to have the Supreme Court step in and say, 'If you choose to kill people, it must be medically and humanely acceptable,"' Lippert said. "It violates every right of humanity. Its one thing to stick a needle in someone, its quite another to chop up a man's arm."