                                                                          [PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                               ____________                  FILED
                                                    U.S. COURT OF APPEALS
                                No. 06-10783          ELEVENTH CIRCUIT
                                                           OCT 5, 2006
                                ___________
                      D.C. Docket No. 06-00050-CV-MCR THOMAS K. KAHN
                                                            CLERK

ARTHUR D. RUTHERFORD,

                                                   Plaintiff-Appellant,

                                      versus

JAMES MCDONOUGH,
CHARLIE CRIST,
                                                   Defendants-Appellees.

                           ------------------------------
             On Appeal from the United States District Court for the
                          Northern District of Florida
                            -----------------------------
                                (October 5, 2006)

                        ON REMAND FROM THE
                    UNITED STATES SUPREME COURT

Before CARNES, HULL and WILSON, Circuit Judges.

CARNES, Circuit Judge:

      The Supreme Court vacated our prior decision, Rutherford v. Crosby

(Rutherford I), 438 F.3d 1087 (11th Cir. 2006), and remanded this case to us for

further consideration in light of that Court’s decision in Hill v. McDonough, 547
U.S. ___, 126 S. Ct. 2096 (2006). See Rutherford v. McDonough, 126 S. Ct. 2915

(2006).

                                         A.

      Twenty years ago this month Arthur Rutherford was convicted and

sentenced to death for the brutal murder of Stella Salmon, a sixty-three year old

widow. Rutherford v. Crosby, 385 F.3d 1300, 1302–05 (11th Cir. 2004). During

the past two decades the validity of his conviction and sentence has been litigated

and upheld throughout the state and federal court systems. See id. at 1306. On

November 29, 2005, the Governor of Florida signed a death warrant setting

Rutherford’s execution for the period of January 30 – February 6, 2006. The

warrant recited that the warden had chosen 6:00 p.m on Tuesday, January 31, 2006

as the time and date of execution.

      At 7:00 p.m. on Friday, January 27, 2006 Rutherford filed the underlying 42

U.S.C. § 1983 lawsuit to challenge the three-drug protocol Florida has been using

since 2000 to carry out executions by lethal injection. Rutherford’s lawsuit came

two months after his execution date had been set, and just two week days before

his scheduled execution. See Rutherford I, 438 F.3d at 1090 n.2. The district

court dismissed Rutherford’s complaint and denied his motion for stay of

execution on January 28. Two days later, we affirmed the district court’s decision

                                         2
and denied Rutherford’s motion for a stay. Id. at 1089–92.1 At 5:40 p.m. the

next day, which was the scheduled date of the execution, the Supreme Court

granted a stay of execution pending disposition of the certiorari petition

Rutherford had filed earlier that day. Rutherford v. Crosby, 546 U.S. ___, 126 S.

Ct. 1191 (2006).

       On June 19, 2006 the Supreme Court granted certiorari, vacated our

Rutherford I decision, and remanded for further consideration in light of Hill v.

McDonough, 126 S. Ct. 2096 (2006), which had been decided in the interim.

Rutherford v. McDonough, 126 S. Ct. 2915 (2006). By letter dated that same day,

the Supreme Court Clerk formally notified our Clerk of the order and of the fact

that pursuant to Supreme Court Rule 45 the Supreme Court’s judgment or mandate

would not issue in the matter for at least twenty-five more days, and that issuance

of it would be further delayed if a timely petition for rehearing were filed in the

Supreme Court. Nonetheless, because we wanted to move along our consideration

of the matter, without waiting for the official judgment or mandate we instructed

the attorneys on June 30 to supplementally brief the question of what this Court

should do in light of the Hill decision when this case officially got back before us.


       1
         On that same day we also denied an application for leave to file a successive petition and
for a stay that Rutherford had filed the day before. In re: Rutherford, 437 F.3d 1125 (11th Cir.
2006).

                                                 3
       The schedule we set provided that Rutherford’s opening brief would be due

within 20 days from June 30, the date of our instructions; the State’s answer brief

would be due within 14 days from receipt of Rutherford’s; and he then would have

7 days from receipt of the State’s brief to file a reply. Rutherford filed his opening

brief on the last possible day under the schedule; the State filed its answer brief

several days early; and Rutherford did not file his reply brief when it was due.

Instead, the day Rutherford’s reply brief was due we received a motion for a

thirty-day extension. One of the reasons his attorney gave for needing the

extension was that she had taken an eight-day vacation in the midst of the briefing

schedule. We denied her request for a 30-day extension but gave her one of

twenty-three days, which resulted in her having a total of thirty days from receipt

of the State’s brief to file Rutherford’s reply brief. Rutherford’s attorney waited

until the last day of that extended period to file the brief, which resulted in

completion of the supplemental briefing being delayed until September 1. (In the

meantime, we had received the judgment or mandate of the Supreme Court on July

24.)

       On September 22, 2006, the Governor of the State of Florida rescheduled

Rutherford’s execution for the period from October 16 through October 23, 2006.

In doing so the Governor noted that the warden had chosen October 18 at 6:00

                                           4
p.m. as the specific date and time for the execution. No one informed this Court or

its Clerk of that development until September 25, which is the date that Rutherford

filed a mandamus petition in the Supreme Court and provided our Clerk’s Office

with a copy of it. The mandamus petition asked the Supreme Court to

expeditiously order this Court to remand this case to the district court. The request

came despite the fact that Rutherford had never asked this Court to expedite its

consideration of the case and his own attorney had delayed the completion of

briefing and submission of the case to us for decision. Among other things, the

mandamus petition she filed accuses this Court of “sit[ting] upon a capital case

remanded to it,” and charges that “[t]he Eleventh Circuit and the Florida Attorney

General have been the architects of the trap being set to ensnare Mr. Rutherford.”

The mandamus petition does not disclose that the attorney who penned those

allegations took a vacation during the briefing schedule, leading to a delay in

submission of the case to us for decision.

      In any event, the case having been submitted to us for decision, we turn to a

discussion of the issues presented by the Supreme Court’s remand.




                                         B.

                                         5
      The district court dismissed on two grounds Rutherford’s 42 U.S.C. § 1983

lawsuit challenging Florida’s three-drug lethal injection protocol. One ground

was that our circuit law at the time required that this type of challenge be brought

in a 28 U.S.C. § 2254 proceeding and comply with the restrictions on second or

successive habeas petitions set out in § 2244(b). See Hill v. Crosby, 437 F.3d

1084 (11th Cir. 2006), rev’d sub nom., Hill v. McDonough, 126 S. Ct. 2096

(2006); Robinson v. Crosby, 358 F.3d 1281, 1284 (11th Cir. 2004). Because

Rutherford could not meet the requirements for filing a second or successive

habeas petition, we affirmed the district court’s judgment dismissing his action on

that basis. Rutherford I, 438 F.3d at 1089. That basis for our decision is no longer

valid in light of the Supreme Court’s Hill decision.

      There was, however, a second ground for the dismissal. The district court

also dismissed Rutherford’s lawsuit on the alternative ground that he could and

should have brought it earlier. Rutherford I, at 1101–03 (appendix containing

district court opinion). After discussing that ground at some length, we affirmed

on the basis of it, as well. Id. at 1090–93. We will not repeat here all that we said

there. Suffice it to say that, as the district court found, Rutherford did

unnecessarily delay bringing this claim. He deliberately waited until the last few

days before his execution to file what he could have filed many months, if not

                                           6
years, earlier. He could have brought the claim in plenty of time to permit full

consideration of it without any need to stay the execution order that was finally

entered in the case. Id.

      We explained in our prior opinion that because of the alternative holding

Rutherford would lose even if the Supreme Court in Hill knocked the first prop

out of our decision, which is exactly what it did. Rutherford I, at 1093 (“[E]ven if

the Supreme Court decides in the Hill case to overturn our Hill and Robinson

decisions and holds that this type of claim is cognizable in a § 1983 proceeding,

Rutherford still will not be entitled to any equitable relief because of the district

court's independently adequate alternative ground for dismissing his complaint,

which we are affirming in this opinion. Neither of the two questions on which

certiorari was granted in Hill touch on that alternative ground.”). We are as

convinced of that conclusion now as we were then, if not more so.

      Nothing in the Supreme Court’s Hill opinion conflicts with our conclusion

about how the equitable principles play out in this case, and there is much in that

opinion to support our conclusion. Part III of the Hill opinion recognizes that

“[b]oth the State and the victims of crime have an important interest in the timely

enforcement of a sentence,” and the opinion states that nothing about the Hill

decision should be read to diminish that interest or prevent federal courts from

                                           7
protecting it. 126 S. Ct. at 2104. The Supreme Court reiterated in Hill what it said

in Nelson v. Campbell, 541 U.S. 637, 649–50, 124 S. Ct. 2117, 2125–26 (2004),

about a stay of execution being an equitable remedy, not available as a matter of

right, and about how federal courts considering granting a stay must be “sensitive

to the State’s strong interest in enforcing its criminal judgments without undue

interference from the federal courts.” Hill, 126 S. Ct. at 2104. It also instructed us

that “[a] court considering a stay must also apply ‘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.’ ” Id.

(quoting Nelson, 541 U.S. at 650, 124 S. Ct. at 2126).

      At the time the Hill decision was announced, a number of federal courts had

exercised their equitable powers to dismiss this type of lawsuit on grounds that the

claim about the lethal injection procedures and protocol was too speculative or had

been filed too late. Hill, 126 S. Ct. at 2104 (citing Hicks v. Taft, 431 F.3d 916 (6th

Cir. 2005); White v. Johnson, 429 F.3d 572 (5th Cir. 2005); Boyd v. Beck, 404 F.

Supp. 2d 879 (E.D.N.C. 2005)). While not passing on the decisions in those

particular cases, the Supreme Court did point to them and conclude that the

problem they addressed is significant, as would be the problem of piecemeal or

repetitive litigation in this type of case. Hill, 126 S. Ct. at 2104. The Supreme

                                          8
Court flat out said in its Hill opinion that: “The federal courts can and should

protect States from dilatory or speculative suits.” Id. If that means anything, it

means that we must affirm the district court’s dismissal of Rutherford’s § 1983

complaint on the alternative ground that he is not entitled to equitable relief

because he delayed unnecessarily in bringing the claim, deliberately waiting until

the Friday night before the scheduled execution on Tuesday to file, knowing full

well that the discovery, evidentiary hearing, and decision on the merits that he

demands could not possibly be accomplished in that short period of time.

      Our decision to affirm in this case is supported, if not compelled, by the

decision of another panel of this Court in the Hill case on remand. In that case,

unlike this one, the district court had not reached the issue of whether, if there

were jurisdiction to consider the lethal injection claim, relief should be denied on

equitable grounds because of the delay in bringing it. The case was remanded to

the district court for consideration of that issue. Hill v. McDonough, ___ F.3d

___, No. 06-10621, 2006 WL 2472727, at *1 (11th Cir. Aug. 29, 2006). The

district court on remand in Hill reached the same decision that the district court in

the present case had reached originally, which is that the relief sought in the §

1983 proceeding was barred on equitable grounds, and dismissed the complaint on

that basis. See Hill v. McDonough, ___ F.3d ___, No. 06-14927, 2006 WL

                                           9
2641659, at *1 (11th Cir. Sept. 15, 2006). On appeal, this Court effectively

affirmed that decision, treating Hill’s motion for a stay of execution as a request

for preliminary injunctive relief and denying it. Id. In doing so, we stated that

“we dispose of Hill’s motion by denying his request for an injunction based upon

our independent analysis of the equities.” Id. at *2.

      In the course of doing so, we referred to “the clear indication from the

Supreme Court in this case that we may deny Hill’s request if the equities demand

that result.” Id. We explained that far from having the equities on his side, “Hill

was the architect of the very trap from which he now seeks relief.” Id. What we

said about Hill applies with full force to Rutherford. We pointed out that Hill had

filed “his § 1983 complaint four days before his previously scheduled execution

date of January 24, 2006.” Id. Likewise, Rutherford filed his § 1983 complaint

four days before his scheduled execution date of January 31, 2006.

      We pointed out in Hill that the petitioner had filed his § 1983 complaint

“just after the Florida Supreme Court rejected his application for post-conviction

relief on, among other grounds, his challenge to the Florida lethal injection

protocol.” Id. Likewise, Rutherford filed his § 1983 complaint just after (actually,

the same day) the Florida Supreme Court affirmed the denial of his request for

post-conviction relief on this ground among others. As we explained in Hill,

                                          10
“assertion of essentially the same lethal injection challenge in the Florida courts

reveals that he was aware of the grounds for the claim much earlier than the date

on which he actually filed his § 1983 action in federal district court.” Id. The

same is true here.

      And that is not all. We also explained in our last Hill opinion that:

      [W]e need not rely on that inference alone to determine that Hill

      unreasonably delayed in filing his federal complaint. The Florida

      Supreme Court considered a challenge to the Florida lethal injection

      protocols on similar grounds as early as 2000. Sims v. State, 754 So.

      2d 657, 666-68 (Fla. 2000). Although it is unclear from the

      procedural history whether Hill addressed the Sims precedent in his

      post-conviction proceedings after 2000, the fact remains that, during

      the pendency of his various collateral challenges, Florida had

      considered the same type of claim upon which Hill now seeks relief.

      In light of this context, Hill cannot claim that it was impossible for

      him to initiate his federal suit any earlier.



Id. (footnote omitted). Again, the same is true here. To the extent that Rutherford

contends he should be excused for not filing his claim before the Lancet article it

                                           11
is based upon was published, exactly the same could have been said in the Hill

case. Besides, as we explained in our earlier decision in this case, the Lancet

article was published in April 2005 nine months before Rutherford filed his

complaint. Rutherford I, 438 F.3d at 1092. This Court concluded in the last Hill

opinion that “[i]n light of [petitioner’s] actions in this case, which can only be

described as dilatory, we join our sister circuits in declining to allow further

litigation of a § 1983 case filed essentially on the eve of execution.” Hill, 2006

WL 2641659, at *3.

      The difference between this case and the Hill case is that no remand to the

district court is necessary to see how the district court will decide the equitable

issues raised by the last minute nature of the filing, because the district court has

already decided those issues in this case. It did so by stating as an alternative basis

for dismissing Rutherford’s § 1983 complaint that he was not equitably entitled to

relief. Rutherford I, at 1102–03 (appendix containing district court opinion).

      Rutherford contends that we ought not pay any attention to that alternative

holding, because the district court concluded in the same order that it lacked

jurisdiction to address the claim. He cites a half dozen decisions holding that if a

court lacks subject matter jurisdiction it lacks the power to decide a claim. Of

course that’s true. But the problem with Rutherford’s argument is that the

                                          12
Supreme Court, which traditionally has the last word in these matters, has now

emphatically held that district courts do have jurisdiction to entertain this claim in

a § 1983 proceeding even where the plaintiff previously had litigated a § 2254

petition. Hill, 126 S. Ct. at 2102. The Supreme Court’s Hill decision reduces

Rutherford’s argument to this proposition: a district court which erroneously

concludes that it lacks jurisdiction does lack jurisdiction even if it does not really

lack jurisdiction. That proposition is not only contrary to common sense but also

is foreclosed by circuit precedent. See M.H.D. v. Westminster Schools, 172 F.3d

797, 802 n.12 (11th Cir. 1999) (if a district court dismisses alternatively on the

merits and for lack of subject matter jurisdiction, we may affirm on the merits after

concluding that there was jurisdiction); see also IFC Interconsultant, AG v.

Safeguard Int’l Partners, 438 F.3d 298 (3d Cir. 2006) (same); Town Stores, Inc. v.

Equal Employment Opportunity Comm’n, 708 F.2d 920, 923 (4th Cir. 1983)

(“Having concluded that the district court erred in dismissing the action for a lack

of jurisdiction, we now must turn to a review of its alternative holding . . . .”).

      Rutherford also argues that the well-established equitable principles the

district court applied in this case, and which the Supreme Court stressed in Part III

of its Hill opinion, 126 S. Ct. at 2104, have no relevance here because he is

seeking permanent injunctive relief on the merits, not a stay of execution. We

                                           13
rejected that contention in our prior opinion, “agree[ing] with the Fifth Circuit that

the last-minute rules of the Supreme Court in Nelson and Gomez [v. United States

Dist. Court for N. Dist. Of Cal., 503 U.S. 653, 112 S. Ct. 1652 (1992)] ‘were

declared by the Court in the context of last-minute § 1983 method of execution

challenges as well as last-minute stay requests. The principles enunciated by the

[Supreme] Court are equally applicable to all types of equitable relief, including

permanent injunctions, sought by inmates facing imminent execution.’”

Rutherford I, 438 F.3d at 1092 n.3 (quoting White v. Johnson, 429 F.3d 572,

573–74 (5th Cir. 2005)). So far as we can find, no circuit has held to the contrary.

And it is well to remember that in Hill the Supreme Court spoke of federal courts

invoking equitable power not merely to deny stays, but “to dismiss suits they saw

as speculative or filed too late in the day,” and also to address problems of

“piecemeal litigation.” Hill, 126 S. Ct. at 2104.

      In his supplemental briefs Rutherford insists that the circumstances have

changed since the district court ruled because at the time he filed those briefs his

execution had not been rescheduled. The problem with that approach is two-fold.

First, we are not sitting as a court of first resort, deciding what would be the

proper result if Rutherford had just filed with us his § 1983 complaint and

associated motions. We are reviewing the decision of the district court, which was

                                          14
entered less than seventy-two hours before the date on which the execution was

initially scheduled. Second, the Governor of Florida has now rescheduled

Rutherford’s execution and a stay of execution would be necessary for Rutherford

to seek and obtain the final relief he seeks.

      We have carefully considered the views of our dissenting colleague but are

unable to agree with them. Because the Lancet article was published on April 16,

2005, the dissenting opinion, in its first footnote, concedes that “the factual basis

for Rutherford’s claim may have been known to him in April of 2005,” which was

more than nine months before he filed this claim. It was, the dissenting opinion

insists, “the legal basis for his claim [that] was not available until January 2006.”

Id.

      But none of the law applicable to this claim changed in January 2006.

While the Supreme Court did grant certiorari in the Hill case on January 25, 2006,

a grant of certiorari does not change the law. See Ritter v. Thigpen, 828 F.2d 662,

665–66 (11th Cir. 1987); Thomas v. Wainwright, 788 F.2d 684, 689 (11th Cir.

1986). When Rutherford finally filed his claim on Friday night, January 27, 2006,

to stop his scheduled execution on Tuesday, January 31, the law in this circuit was

the same as it had been during the entire time he was withholding that claim.

Circuit law did not change until the Supreme Court issued its Hill decision on June

                                          15
12, 2006. That decision cannot explain or excuse Rutherford’s late filing because

it was not issued until four and a half months after he had filed.

      Nor can we agree with the dissenting opinion’s attempted distinction of the

Hill case from this one. The two cases, as we have already pointed out, are

materially identical insofar as the facts relating to the equitable considerations are

concerned. Even though Hill and Rutherford both filed the same claim

challenging the same lethal injection protocol in the same state the same number

of days before their scheduled executions, which were to occur just one week

apart, the dissenting opinion says the two cases are materially different. They are

different, in its view, because by persuading the Supreme Court to grant certiorari

in his case, while Rutherford laid back, Hill brought about a “fundamental[]

change[]” in “the legal landscape”; Rutherford did not. The idea is that because

Hill paved the way for Rutherford, it is okay to execute Hill but not Rutherford. It

cannot be the law, and it certainly is not equitable, to treat a litigant who does

nothing until there is an indication the law may be changed more favorably than

one who actually brings about that change in the law. Treating Rutherford more

favorably than Hill would turn the incentives upside down and be anything but

equitable.

      We also disagree with the dissenting opinion’s critique of the district court’s

                                          16
treatment of the equitable considerations issue. The district court did not “only

analyze[] this issue as an afterthought,” but carefully considered the applicable law

and facts and entered an alternative holding that the relief sought would be denied

on equitable grounds. See Rutherford I, 438 F.3d at 1102–03 (appendix

containing the district court opinion). The district court did consider the specific

facts of this particular case, the central one of which is that Rutherford had

unnecessarily delayed in bringing his claim and at the district court level he had

“offered no reason for his delay in bringing a § 1983 action until just days before

his scheduled execution.” Id. at 1102. The district court did apply the proper law,

see id. at 1102–03, citing and quoting from the same parts of the Supreme Court’s

Gomez and Nelson opinions that the Supreme Court itself discussed favorably in

Part III of the Hill decision, 126 S. Ct. at 2104. The district court’s discussion of

the relevant law was no more “an afterthought” than the Supreme Court’s

discussion of it was in Hill.

      Speaking of the effect of federal court litigation on state death sentences,

twenty-three years ago Judge Godbold of this Court sagely observed that “[e]ach

delay, for its span, is a commutation of a death sentence to one of imprisonment.”

Thompson v. Wainwright, 714 F.2d 1495, 1506 (11th Cir. 1983). By holding his

claim back until there was not enough time to have it adjudicated without a stay of

                                          17
execution, Rutherford used what then-Justice Rehnquist called the “hydraulic

pressure” of a last-minute filing, Evans v. Bennett, 440 U.S. 1301, 1307, 99 S. Ct.

1481, 1485 (1979) (Rehnquist, Circuit Justice), to obtain a federal court imposed

eight month commutation of his death sentence. He is not entitled to another one.

       Because we affirm the district court’s dismissal of Rutherford’s § 1983

complaint on equitable grounds, we need not address the additional defenses of

collateral estoppel and failure to exhaust administrative remedies, as required by

the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), which the State has

asserted as alternative bases for affirmance.

       AFFIRMED.2




       2
          Last week Rutherford filed an application for a stay of execution pending our decision
in this appeal. We deny that application as moot.

                                                18
WILSON, Circuit Judge, dissenting:



      It is now clear that Rutherford is entitled to challenge the method by which

Florida seeks to execute him by presenting his claim under 28 U.S.C. § 1983. See

Hill v. McDonough, 547 U.S. ____, 126 S. Ct. 2096, 2101–04, 165 L. Ed. 2d 44

(2006). The Supreme Court remanded Rutherford’s case back to us for

reconsideration in light of its decision in Hill. Rutherford v. McDonough, 126 S.

Ct. 2915, 165 L. Ed. 2d 914 (2006) (mem.). Pursuant to the remand, the majority

agrees with the district court’s alternative ruling that Rutherford’s § 1983 claim

should not be heard because he should have brought it earlier. I disagree. I

continue to believe, as I noted in my earlier dissent, that the district court abused

its discretion by concluding that even if Rutherford’s § 1983 claim were

cognizable, his delay in bringing the claim precluded equitable relief. Rutherford

v. Crosby, 438 F.3d 1087, 1097–98 (11th Cir. 2006) (Wilson, J., dissenting)

(hereinafter Rutherford I). Because the factual basis for Rutherford’s claim only

recently came to light and because the legal basis for his claim was not in place

until six days before his scheduled execution, he did not unnecessarily delay in




                                          19
bringing his § 1983 action.1

       The district court’s determination that Rutherford unreasonably delayed the

filing of his claim was, in essence, an alternative basis for dismissing his case.

There was no semblance of a proper discussion or balancing of the equities of

Rutherford’s claim. The court did not apply the appropriate standard for a stay or

injunction under § 1983. Conspicuously absent from the district court’s order is

any discussion of the following four factors: (1) whether there is a substantial

likelihood of success on the merits; (2) whether the requested action is necessary

to prevent irreparable injury; (3) whether the threatened injury outweighs the harm

the stay or injunction would inflict upon the non-movant; and (4) whether the

requested action would serve the public interest. See Seigel v. Lepore, 234 F.3d

1163, 1176 (11th Cir. 2000) (per curiam). The district court obviously did not feel

the need to consider these four factors because it believed that Rutherford’s “claim

       1
          The majority asserts that Rutherford was aware of the factual grounds for his claim as
early as 2000 when the state of Florida instituted lethal injection as a method of execution. That
year, the Florida Supreme Court evaluated the constitutionality of Florida’s lethal injection
protocols. See Sims v. State, 754 So. 2d 657 (Fla. 2000). The petitioner in Sims, however,
centered his argument on the pain and suffering that could occur if execution procedures were
not followed. Id. at 668. In this case, Rutherford alleges that even if carried out as planned, the
execution methods constitute cruel and unusual punishment. Rutherford bases his claim on
recent research published in a medical journal detailing the effects of the chemicals in lethal
injection. See Leonidas G. Koniaris, et al., Inadequate Anaesthesia in Lethal Injection for
Execution, 365 THE LANCET 1412 (Apr. 16, 2005). This research indicates that inmates may feel
the suffering of suffocation, the burning through the veins, and the pain of a heart attack due to
inadequate anaesthesia. Id. Though the factual basis for Rutherford’s claim may have been
known to him in April of 2005, the legal basis for his claim was not available until January 2006.

                                                20
and request for relief [wa]s the functional equivalent of a successive habeas corpus

petition.” Rutherford I, 438 F.3d at 1102 (reprinting district court order as

appendix). We have learned from Hill that that belief was incorrect. 126 S. Ct. at

2101–04.

      Without weighing the four factors, the district court erroneously concluded

that Rutherford unnecessarily delayed in bringing his claim, and thus deemed a

stay inappropriate. A “strong equitable presumption against the grant of a stay” is

appropriate only when “a claim could have been brought at such a time as to allow

consideration of the merits without the requiring of a stay.” Nelson v. Campbell,

541 U.S. 637, 650, 124 S. Ct. 2117, 2126, 158 L. Ed. 2d 924 (2004). Here, there

would have been little point in Rutherford bringing his claim any earlier than he

did. Prior to the Supreme Court’s decision in Hill, our precedent in Robinson v.

Crosby, 358 F.3d 1281 (11th Cir. 2004), would have required a district court to

treat Rutherford’s § 1983 claim as a successive habeas corpus petition. See id. at

1284. Thus, based on our prior precedent which has now been overruled, the

district court would have been correct to summarily dismiss it for lack of

jurisdiction. See id. It was not until the Supreme Court’s grant of certiorari in Hill

that Rutherford had reason to believe that his claim would be heard. Rutherford

filed his § 1983 claim on January 27, 2006, two days after the Supreme Court

                                         21
granted certiorari in Hill. I see nothing in the record to suggest, as the majority

opines, that Rutherford “deliberately waited” to file his claim days before his

scheduled execution. Thus, the district court abused its discretion in applying a

“strong equitable presumption” against a stay. Furthermore, the district court’s

order only analyzed this issue as an afterthought on the premise that the court’s

first ground would be upheld.

      The majority affirms the district court’s dismissal of Rutherford’s § 1983

action in an effort to “protect states from dilatory or speculative suits.” Hill, 126

S. Ct. at 2104. The majority concludes that a remand is unnecessary because the

district court already determined that Rutherford’s suit was dilatory. I do not read

Hill as giving license to the lower federal courts “to overlook all other

considerations that are called for in equity, which, after all, should be a recourse to

principles of justice and fairness to correct or supplement the law as applied to

particular circumstances.” Brown v. Livingston, 457 F.3d 390, 392 (5th Cir. 2006)

(Dennis, J., dissenting). Rather, “equity in cases of this nature requires courts to

consider the particular circumstances of each case and to examine them for

whether or not the challenge has been brought dilatorily or for improper purposes .

. . , and, if not, whether it should be allowed to proceed.” Id. The district court

did not consider Rutherford’s particular circumstances.

                                          22
      The majority also argues that its decision to affirm is compelled by the

result in the Hill case on remand. Hill v. McDonough, No. 06-14927, 2006 WL

2641659, (11th Cir. Sept. 15, 2006). Hill filed his § 1983 claim four days before

his execution with full knowledge that under this Circuit’s precedent, his claim

would be dismissed as a successive habeas petition. See Robinson, 358 F.3d at

1284. In fact, the district court dismissed Hill’s claim outright for lack of

jurisdiction, holding that Hill’s action was the functional equivalent of a

successive petition for a writ of habeas corpus filed without leave and, thus, ran

afoul of 28 U.S.C. § 2244(b). Hill v. Crosby, No. 4:06-CV-032-SPM, 2006 WL

167585, at *2–3 (N.D. Fla. Jan. 21, 2006). Following our precedent in Robinson,

358 F.3d 128, and In re Provenzano, 215 F.3d 1233 (11th Cir. 2000), we

summarily affirmed the district court and denied Hill’s application for a stay of his

execution pending appeal. Hill v. Crosby, 437 F.3d 1084, 1085 (11th Cir. 2006)

(per curiam). Against the odds, the U.S. Supreme Court granted certiorari in Hill’s

case. Hill v. Crosby, 546 U.S. __, 126 S. Ct. 1189, 1190, 163 L. Ed. 2d 1144

(2006) (mem.).

      Hill’s case is materially different from Rutherford’s. Hill filed a highly

speculative suit as a last ditch effort to stall his execution. Nothing in our circuit

precedent, or Supreme Court precedent, provided a basis for a § 1983 challenge to

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Hill’s method of execution. On the other hand, when Rutherford filed his § 1983

claim, the legal landscape had fundamentally changed. A grant of certiorari by the

Supreme Court, obviously, does not change our Circuit law, but it does call that

law into question. Only after the Supreme Court’s grant of certiorari in Hill,

which presented the same issues Rutherford faced, did Rutherford have reason to

believe that his claim would be heard. The majority suggests that it “cannot be the

law” that Rutherford could benefit from precedent established by Hill’s efforts.

Again, I disagree. Litigants benefit from the efforts of prior litigants who shape

the law every day. That is precisely why the Supreme Court remanded this case

back to us for reconsideration – because Hill forged new precedent.

      Nothing in the record suggests that Rutherford filed his claim solely in an

attempt to delay his impending execution. In fact, the record compels the opposite

conclusion. Since Rutherford filed his § 1983 claim, he has vigorously pursued

that claim and urged the courts at all stages to give him an evidentiary hearing on

the merits. For example, Rutherford urged us to remand his case to the district

court post-Hill for further proceedings on the merits despite the fact that no death

warrant was pending and his execution was not imminent. Furthermore, once his

second death warrant had been signed and his execution date set, he petitioned the

U.S. Supreme Court for a writ of mandamus in an effort to compel us to remand

                                         24
his case to the district court for a hearing. These circumstances contradict the

majority’s assertion that his § 1983 claim is merely as a delay tactic and instead

demonstrate that Rutherford has sought and continues to seek a full and fair

hearing on the merits of his constitutional challenge to Florida’s lethal injection

protocol. I am simply not persuaded by the view of the majority that Rutherford’s

sole intent is to buy more time on death row, rather than to force the State to

execute him in compliance with the Constitution.

      Certainly, the State and its victims have an “important interest in the timely

enforcement of a sentence,” but this interest must be balanced against the

constitutional right of a death row inmate to be executed in a manner consistent

with the requirements of the Constitution. Recent developments in medical

research have called into question the degree of pain and suffering caused by the

method of lethal injection some states, including Florida, use. See Leonidas G.

Koniaris et al., Inadequate Anaesthesia in Lethal Injection for Execution, 365

THE LANCET 1412 (Apr. 16, 2005). To date, most lower courts have avoided

squarely addressing whether execution by this three-drug protocol violates the

Eighth Amendment, thus preventing review by the United States Supreme Court.

See, e.g., Hill, 2006 WL 2641659; Robinson, 358 F.3d 1281; Brown v. Crawford,

408 F.3d 1027 (8th Cir. 2005) (per curiam); Bieghler v. State, 839 N.E.2d 691

                                          25
(Ind. 2005). But see Walker v. Johnson, No. 1:05-CV-934 CMH TRJ, 2006 WL

2619857 (E.D. Va. Sept. 11, 2006) (dismissing inmate’s § 1983 claim which relied

on risks of deviation from execution protocol).

       Rutherford does not challenge the validity of his sentence, rather the method

in which the State seeks to carry it out. Rutherford’s challenge, even if successful,

does not foreclose his execution. He will be put to death for his crime. But,

because Rutherford presents a legitimate claim that the lethal injection protocol

that awaits him may constitute cruel and unusual punishment, which the Eighth

Amendment forbids, and because the district court failed to engage in a full and

proper analysis of the equities in Rutherford’s case, I would reverse the district

court’s decision and remand for a hearing on the merits of his § 1983 claim.2




       2
         A court in the Northern District of California is currently hearing expert testimony
regarding a challenge to California’s lethal injection protocols, which are materially similar to
Florida’s procedures. Morales v. Woodford, No. C-06-219-JF-RS (N.D. Cal. 2006). Rutherford
deserves the same opportunity. Consequently, I would grant Rutherford’s Application for a Stay
of Execution, permitting him to return to the district court for a hearing on the merits of his §
1983 claim.

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