                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2017-DR-00870-SCT

THOMAS EDWIN LODEN, JR.

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         09/21/2001
TRIAL JUDGE:                              HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                ITAWAMBA COUNTY CIRCUIT COURT
ATTORNEY FOR PETITIONER:                  STACY FERRARO
ATTORNEY FOR RESPONDENT:                  OFFICE OF THE ATTORNEY GENERAL
                                          BY: JASON L. DAVIS
NATURE OF THE CASE:                       CIVIL - DEATH PENALTY- POST-
                                          CONVICTION
DISPOSITION:                              PETITION FOR POST-CONVICTION
                                          RELIEF DENIED - 12/06/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Before the Court is Thomas Edwin Loden Jr.’s fourth1 petition for post-conviction

relief. Loden challenges the Mississippi Department of Corrections’ use of midazolam in its

lethal-injection protocol. He claims that midazolam is not an “appropriate anesthetic or



       1
         Loden’s first petition for post-conviction relief was filed in July 2003 and was
denied. Loden v. State, 971 So. 2d 548, 552 (Miss. 2007). Loden filed a second petition,
which was denied in April 2010. Loden v. State, 43 So. 3d 365, 401 (Miss. 2010). Loden’s
third petition was dismissed in May 2017 as moot. Loden v. State, 222 So. 3d 312, 313
(Miss. 2017).
sedative” that, “if properly administered in a sufficient quantity, is likely to render the

condemned inmate unconscious, so that the execution process should not entail a substantial

risk of severe pain” under Mississippi Code Section 99-19-51 (Supp. 2018). Loden requests

this Court to enter an order forbidding the State from using any drug, including midazolam,

as the first drug in its lethal-injection series that is not “likely to render the condemned

inmate unconscious,” or, in the alternative, to grant him an evidentiary hearing to prove that

midazolam is not “an appropriate anesthetic or sedative” under Mississippi Code Section 99-

19-51.

¶2.      First, our review of Loden’s filings and affidavits on the critical issue—that is,

whether a 500-milligram dose of midazolam meets Mississippi’s statutory definition of an

“appropriate anesthetic or sedative,” reveals that Loden has offered no more than the ipse

dixit arguments of his expert, Craig W. Stevens, Ph.D. Loden has failed to carry his burden

of proof in presenting a substantial showing of the denial of a state or federal right as

required by Mississippi Code Section 99-39-27 (Rev. 2015), for the portions of his affidavits

related to the efficacy of a 500-milligram dose of midazolam are a “sham” and are not

supported by established medical literature. Gable v. State, 748 So. 2d 703, 706 (Miss. 1999)

(quoting Young v. State, 731 So. 2d 1120, 1122-23 (Miss. 1999)).

¶3.      Moreover, the State responds that, in Glossip v. Gross, the United States Supreme

Court considered the same arguments presented in Loden’s petition and rejected them,

affirming the United States Court of Appeals for the Tenth Circuit’s and a United States

District Court’s finding that a 500-milligram dose of midazolam—the same dosage that



                                              2
MDOC requires in its lethal-injection protocol—is capable of placing a person at a sufficient

level of unconsciousness so that the recipient is unable to feel pain. Glossip v. Gross, 135

S. Ct. 2726, 2739-41, 192 L. Ed. 2d 761, 83 U.S.L.W. 4656 (2015). In addition to Loden’s

failure to present a substantial showing of the denial of a state or federal right, the holding

in Glossip is relevant to the outcome of this petition. Accordingly, his petition for PCR is

denied.

                        FACTS AND PROCEDURAL HISTORY

¶4.    On June 22, 2000, Loden discovered Leesa Marie Gray’s car stranded on the side of

the road with a flat tire. Loden v. State, 971 So. 2d 548, 552 (Miss. 2007) (Loden I).

According to an interview of Loden, Loden stopped, asked Leesa what was wrong, and told

her “Don’t worry. I’m a Marine. We do this kind of stuff.” Id. Loden then asked Leesa

if she had ever considered becoming a Marine. Id. Leesa responded that “that’d be the last

thing I want to do with my life.” Id. Loden became so angry that he ordered Leesa to get

in his van. Id. Then, “[o]ver the next four hours, Loden repeatedly raped and sexually

battered Leesa, videotaping portions of the sadistic acts, before murdering her by way of

suffocation and manual strangulation.” Id. at 551.

¶5.    Loden was indicted for capital murder, rape, and four counts of sexual battery. Id.

Loden voluntarily waived his right to a jury for both trial and sentencing and pleaded guilty

to all six counts in the indictment. Id. at 551-52. “The Circuit Court of Itawamba County,

Mississippi, accepted those pleas and adjudged Loden guilty on each count.” Id. at 552.

“At the sentencing hearing, Loden elected to waive cross-examination of all of the State’s



                                              3
witnesses, to waive objection to all exhibits presented by the State, and not to offer any

mitigation evidence on his own behalf.” Id. Loden then chose to address the court and

Leesa’s friends and family by stating, “I hope you may have some sense of justice when you

leave here today.” Id. The circuit court then considered the four factors required by

Mississippi Code Section 99-19-101(7) (Rev. 2015) and found that each factor was satisfied,

“that sufficient aggravating circumstances existed, and ‘that the mitigating circumstances do

not outweigh the aggravating circumstances and that the death penalty should be imposed.’”

Id.

¶6.    Loden was also sentenced to thirty years’ imprisonment for the rape conviction on

Count II of the indictment; thirty years’ imprisonment for the sexual battery conviction on

Count III; thirty years’ imprisonment for the sexual battery conviction on Count IV; thirty

years’ imprisonment for the sexual battery on Count V; and thirty years’ imprisonment for

the sexual battery conviction on Count VI; all sentences were ordered to run consecutively

to all other sentences imposed. Id. at 575.

¶7.    Loden’s direct appeal was found meritless. Id. at 575. In addition, Loden’s three

previous petitions for PCR have all either been denied or dismissed. Id.; Loden v. State, 43

So. 3d 365, 376 (Miss. 2010) (Loden II); Loden v. State, 222 So. 3d 312, 313 (Miss. 2017)

(Loden III). Loden is also currently a petitioner in a pending federal civil action challenging

Mississippi’s lethal injection protocol. Jordan v. Hall, No. 3:15CV295HTW-LRA, 2018

WL 1546632 (S.D. Miss. March 29, 2018).




                                              4
¶8.    In this fourth petition for post-conviction relief, Loden now argues that MDOC’s

current lethal-injection protocol2 violates Mississippi Code Section 99-19-51(1), amended

in April 2017, which provides,

       The manner of inflicting the punishment of death shall be by the sequential
       intravenous administration of a lethal quantity of the following combination
       of substances: (a) an appropriate anesthetic or sedative; (b) a chemical
       paralytic agent; and (c) potassium chloride, or other similarly effective
       substance, until death is pronounced by the county coroner where the
       execution takes place or by a licensed physician according to accepted
       standards of medical practice. As used in this section, the term “appropriate
       anesthetic or sedative” means any substance that, if properly administered in
       a sufficient quantity, is likely to render the condemned inmate unconscious, so
       that the execution process should not entail a substantial risk of severe pain.

Miss. Code Ann. § 99-19-51(1) (Supp. 2018) (emphasis added). Loden argues that

midazolam is not “an appropriate anesthetic or sedative” that is “likely to render the

condemned inmate unconscious . . . .” Id.




       2
         Mississippi employs a three-drug lethal-injection protocol. Miss. Code. Ann. § 99-
19-51(1). MDOC’s current protocol states that, “[i]n the event of the unavailability of a
sufficient quantity of Pentobarbital from available sources, a sufficient quantity of
Midazolam will be acquired and administered in the place of Pentobarbital. The Midazolam
will be administered in the same serial order as Pentobarbital (Two 50 cc syringes totaling
500 MG).” The revised protocol also requires that, “when three (3) minutes have elapsed
following the administration of the first drug in the protocol, the IV Team leader, dressed in
a manner to preserve their anonymity shall enter into the room where the offender is located
to determine, pursuant to necessary and medically appropriate and approved methods,
whether the offender is unconscious.” Furthermore, the revised protocol provides that,
“[t]hroughout the entire procedure, the IV Team members, and other Execution Team
members shall continually monitor the offender using all available means to ensure that the
offender remains unconscious and that there are no complications.”

                                              5
                                           ISSUE

       I.     WHETHER MIDAZOLAM IS AN “APPROPRIATE
              ANESTHETIC OR SEDATIVE” AS DEFINED BY MISSISSIPPI
              CODE SECTION 99-19-51(1).

                                STANDARD OF REVIEW

¶9.    Mississippi Code Section 99-39-27(5) provides that,

       [u]nless it appears from the face of the application, motion, exhibits and the
       prior record that the claims presented by those documents are not procedurally
       barred under Section 99-39-21 and that they further present a substantial
       showing of the denial of a state or federal right, the court shall by appropriate
       order deny the application.

Miss. Code Ann. § 99-39-27(5) (Rev. 2015). Mississippi Code Section 99-39-27(7) further

provides that the Court, in its discretion, may,

       (a) Where sufficient facts exist from the face of the application, motion,
       exhibits, the prior record and the state’s response, together with any exhibits
       submitted with those documents, or upon stipulation of the parties, grant or
       deny any or all relief requested in the attached motion.

       (b) Allow the filing of the motion in the trial court for further proceedings
       under Sections 99-39-13 through 99-39-23.

Miss. Code Ann. § 99-39-27(7) (Rev. 2015).

¶10.   Post-conviction proceedings afford the Court an opportunity “to review those matters

which, in practical reality, could not or should not have been raised at trial or on direct

appeal.” Brown v. State, 798 So. 2d 481, 491 (Miss. 2001) (quoting Turner v. State, 590 So.

2d 871, 874 (Miss. 1991)). Loden’s petition involves the revised lethal-injection protocol

promulgated by MDOC on July 28, 2015, and amended again in November 2017, as well as

the revised method-of-execution statute amended in April 2017. Accordingly, the Court may



                                              6
consider Loden’s petition because the issue raised in it could not have been raised at trial or

on direct appeal. Loden “bears the burden of proof by preponderance of the evidence that

he is entitled to post-conviction relief.” Lambert v. State, 941 So. 2d 804, 811 (Miss. 2006)

(internal quotations omitted) (quoting McClendon v. State, 539 So. 2d 1375, 1377 (Miss.

1989).

¶11.     In cases in which a petitioner and the State produce contradictory affidavits in post-

conviction proceedings, this Court has held that, “where an affidavit is overwhelmingly

belied by unimpeachable documentary evidence in the record such as, for example, a

transcript or written statements of the affiant to the contrary to the extent that the court can

conclude that the affidavit is a sham[,] no hearing is required. ” Gable, 748 So. 2d at 706.

                                         DISCUSSION

¶12.     In this case, Loden and the State have produced contradictory affidavits regarding

whether a 500-milligram dose of midazolam is an appropriate anesthetic or sedative. But one

need not examine the State’s competing affidavit to find that Loden’s petition for post-

conviction relief fails to present a substantial showing of the denial of a state or federal right.

Miss. Code Ann. § 99-39-27(5). Loden offers multiple affidavits of Craig W. Stevens,

Ph.D., who meanders through a series of contradictory, speculative assertions about

midazolam, from criticizing the State’s definition of “appropriate anesthetic or sedative”

(while simultaneously conceding that midazolam satisfies that definition), to criticizing the

ability of a 500-milligram dose of midazolam to induce unconsciousness without citing a




                                                7
single scientific publication or study involving such a dose to support his argument.3 Loden

has not carried his burden of proof that he is entitled to post-conviction relief, irrespective

of the contradictory affidavit presented by the State.

¶13.   Stevens4 opines that midazolam does not satisfy the State’s definition of an

“appropriate anesthetic or sedative” under Section 99-19-51. Stevens criticizes midazolam

as the first drug in MDOC’s lethal-injection protocol on two theories. First, Stevens asserts

that midazolam does not comply with the statute’s definition of “appropriate anesthetic or

sedative,” arguing that midazolam does not produce “general anesthesia.” Second, Stevens

opines that the “ceiling effect” of midazolam prevents the drug from changing from a



       3
         Additionally, the State points out in its response to Loden’s petition that Stevens’s
testimony was recently rejected by the United States Court of Appeals for the Sixth Circuit
in In re Ohio Execution Protocol, 860 F.3d 881, 887-88 (6th Cir. 2017). The State notes
that the Sixth Circuit found that “Dr. Stevens [sic] ‘estimates’ regarding the ceiling effect
of midazolam were ‘highly speculative’ and that Stevens’[s] testimony that midazolam could
not produce ‘general anesthesia’ (the same claims asserted here) was contradicted by the fact
that the studies he relied on did not involve the ‘massive’ 500 mg dose such as here.” The
State notes that “the Sixth Circuit held that Ohio’s three-drug protocol including midazolam
was not “sure or very likely” to cause serious pain in violation of Glossip.”
       4
          Per the curriculum vitae provided for this litigation, Stevens currently serves as a
professor of pharmacology in the department of pharmacology and physiology at the College
of Osteopathic Medicine at Oklahoma State University. Stevens is neither a licensed
anesthesiologist nor a medical doctor. Stevens has provided litigation assistance as a
litigation consultant and expert witness in a number of cases involving pharmacological
issues. Stevens states that he has worked with various state departments of corrections, as
well as with death-row attorneys in lethal-injection cases. Loden previously offered Stevens’s
opinions in the pending federal civil action and in his successive petition for post-conviction
relief, in which he challenged the use of midazolam under the former version of Mississippi
Code Section 99-19-51, which required the first drug to be an “ultra-short acting barbiturate
or other similar drug.” Loden III, 222 So. 3d at 313. Loden offers the same report
supplemented by two others authored by Stevens in support of his challenge to MDOC’s
revised lethal-injection protocol.

                                              8
sedative into a general anesthetic. Additionally, Stevens challenges MDOC’s preparation

and administration of the IV, the actual dose of midazolam to be administered, the lack of

a saline flush, and the method of checking consciousness.

¶14.   Stevens does not dispute that midazolam is a sedative as prescribed in the statute.5

Indeed, Stevens admits that midazolam is part of the sedative-hypnotic class of drugs, and

that sedative-hypnotic drugs have largely replaced barbiturates, which he admits “reliably

produce anesthesia,”6 in clinical therapeutics. Despite these concessions, Stevens surmises

that the legislative intent of the word “or”7 in the phrase “anesthetic or sedative” requires an

equivalency between anesthetic drugs and sedative drugs; he concludes that the two are not

equivalent. Stevens offers that midazolam is not an anesthetic drug because it cannot

produce the state of general anesthesia. Stevens continues, opining that midazolam is a

sedative, which “by its very nature and definition, cannot meet the criteria of an appropriate

drug that is likely to render the inmate unconscious” and “impervious to pain.” Stevens

offers that the second and third drugs, if not given with a state of general anesthesia produced

by the first drug, would be severely painful and cause suffering. Stevens, despite not sharing


       5
         “The manner of inflicting the punishment of death shall be by the sequential
intravenous administration of a lethal quantity of the following combination of substances:
(a) an appropriate anesthetic or sedative; . . . .” Miss. Code Ann. § 99-19-51(1) (emphasis
added).
       6
        “[T]he term ‘appropriate anesthetic or sedative’ means any substance that, if
properly administered in a sufficient quantity, is likely to render the condemned inmate
unconscious, so that the execution process should not entail a substantial risk of severe
pain.” Miss. Code Ann. § 99-19-51(1) (emphasis added).
       7
        “Or: Used to indicate 1. An alternative, usu. only before the last term of a series
<cold or hot> <this, that, or the other>.” Or, Webster’s II New College Dictionary (2001).

                                               9
the education, practical experience, or training of an anesthesiologist, then offers that “even

under the best circumstances, . . . anesthesiologists inducing general anesthesia appear to get

it wrong a significant percentage of the time and their patients are not unconscious (or

anesthesized) as often as they think.” In a final coup de grâce, Stevens offers that the lethal-

injection statute should be modified, stating that, “[t]o be correct and to be in alignment with

common pharmacological knowledge,” Mississippi Code Section 99-19-51(1) “should be

modified to read ‘(a) an appropriate general anesthetic drug’” as opposed to an “appropriate

anesthetic or sedative.”8

¶15.   Stevens also opines that midazolam has a “ceiling effect,” in which a greater dose will

not produce a greater pharmacological effect; yet, he freely concedes that no scientific

studies or tests of midazolam’s ceiling effect on humans exist. Instead, Stevens opines about

midazolam’s ceiling effect by extrapolating from studies conducted on cells in laboratory

dishes (in vitro) and studies examining the blood concentration of midazolam in humans who

were administered clinical doses of midazolam at five to fifteen milligrams and then offers

his ipse dixit opinion about what the concentration of midazolam would be in the human

brain after a 500-milligram dose. Stevens concludes that a 200-milligram dose of midazolam

is sufficient to reach its ceiling effect.

¶16.   Stevens’s contradictory opinions overwhelmingly belie his assertion that midazolam

is not an “appropriate anesthetic or sedative.” See Gable, 748 So. 2d at 706 (holding that

petitioner is not entitled to an evidentiary hearing when petitioner’s affidavit is belied by

       8
        Stevens’s suggestion to amend the statute is a form of relief that the trial court
cannot grant.

                                              10
written statements of the affiant to the contrary). Stevens opines that a 500-milligram dose

of midazolam cannot render an inmate unconscious, yet in the very same report, Stevens

concedes that much smaller doses of midazolam are routinely used for sedation and

anesthesia. Stevens himself provided five different uses of midazolam as an anesthetic or

sedative: (1) preoperative sedation, (2) outpatient sedation, (3) anesthesia induction, (4)

sedation for intubated patients, and (5) co-anesthesia.

¶17.   Stevens also admits that “the highest-clinically used” dosage of midazolam does “not

approach the ceiling effect dosage,” admitting that “the usual clinical midazolam IV doses

produce brain concentrations that are far below ceiling or plateau effect.” In other words,

Stevens admits that the highest clinically used dosage of midazolam, which is routinely used

for sedation and anesthesia, does not reach the drug’s ceiling effect. Furthermore, Stevens

admits that no scientific tests, studies, or literature concerning midazolam’s ceiling effect on

humans following a 500-milligram dosage exist. Additionally, Stevens does not provide any

evidence that his own calculation of midazolam’s purported ceiling effect was the product

of reliable principles and methods.

¶18.   As to midazolam’s effectiveness in inducing unconsciousness, Stevens’s affidavits

and supplemental reports focus entirely on midazolam’s inability to produce “general

anesthesia,” which is not required under either Mississippi Code Section 99-19-51 or

Glossip. Indeed, the statute only requires an appropriate anesthetic or sedative, and Stevens

concedes that midazolam is routinely used as both an anesthetic and a sedative. Even if

Mississippi’s lethal-injection protocol required only anesthetics, Stevens admits that



                                              11
midazolam, among other drugs, has largely replaced barbiturates, which “reliably produce

anesthesia” in clinical therapeutics. Stevens defines anesthesia as “the loss of all feeling and

is generally meant to be in a state of unconsciousness.”

¶19.   Furthermore, Stevens concedes that midazolam is used for regional anesthesia and

actually cites clinical studies in which midazolam was infused until patients became

unresponsive to mild prodding or shaking. Stevens further admits that midazolam has been

documented to produce a “BIS value”9 of 65 in surgery patients, which represents “deep

sedation.” And just like the weakness contained in Stevens’s “ceiling effect” argument,

Stevens opined that unconsciousness cannot be measured.

¶20.   As previously stated, “where an affidavit is overwhelmingly belied by unimpeachable

documentary evidence in the record such as, for example, a transcript or written statements

of the affiant to the contrary to the extent that the court can conclude that the affidavit is a

sham[,] no hearing is required.” Gable, 748 So. 2d at 706.         Having examined Stevens’s

contradictory, speculative affidavits, the Court finds that the portions of the affidavits related

to the efficacy of a 500-milligram dose of midazolam are a “sham” and are without

established medical support.10 Id. Loden has not carried his burden of proof in presenting


       9
         In one of his affidavits, Stevens opines that researchers utilize a “bispectral
analysis,” or BIS value, to measure the patient’s level of anesthesia. In another affidavit,
Stevens states that the BIS method is not universally accepted as a measure of
unconsciousness and that it is “not without controversial results.” This is yet another
example of Stevens’s own contradictory assertions, which are contained throughout his
affidavits.
       10
          Though not necessary to conclude that Stevens’s affidavits are a “sham,” the Court
has the benefit of the counter-affidavit of Dr. Joseph F. Antognini, M.D., M.B.A., a board-
certified medical doctor in the medical specialty of anesthesiology licensed to practice

                                               12
a substantial showing of the denial of a state or federal right; therefore, he is not entitled to

post-conviction relief. Miss. Code Ann. § 99-39-27(5).

¶21.   Moreover, Loden is not entitled to post-conviction relief because the United States

Supreme Court has already rejected squarely the claims advanced by Loden in his challenge

to midazolam.




medicine in the State of California. Dr. Antognini received his medical degree from the
University of Southern California and currently serves as a clinical professor of
anesthesiology and pain medicine at the University of California, Davis-School of Medicine,
and as the director of peri-operative services at the University of California, Davis Health
System. Dr. Antognini has provided expert testimony in one case over the last four years.

Dr. Antognini relates that, in practice, the typical therapeutic dose of midazolam is two to
three milligrams, and that a dose above five milligrams must be used with extreme caution
because of the well-known risks of unconsciousness, respiratory depression, and apnea. He
further relates that midazolam has been used for the induction of anesthesia and cites two
scientific studies in support. He specifically points out that a 500-milligram dose of
midazolam, which is about 100 to 200 times the normal therapeutic dosage, would render a
person “completely unconscious and insensate to pain and noxious stimuli.” Dr. Antognini
cites the “Black Box Warning” of midazolam, which signifies that midazolam can cause
respiratory depression, unconsciousness, and death. Further, Dr. Antognini states that “there
is only an exceedingly small risk that a person administered a 500[-milligram] dose of
midazolam would experience any pain” from the administration of vecuronium bromide and
potassium chloride. Dr. Antognini also relates that 500 milligrams of midazolam would
produce a state of anesthesia that is considered adequate “for many thousands of surgical
procedures performed on a daily basis.” Further, Dr. Antognini states that Stevens’s
hypothesis on the “ceiling effect” of midazolam is erroneous. Applying the Supreme Court’s
holding in Glossip coupled with his training, knowledge, and experience in performing real-
life anesthesia, Dr. Antognini states that the ceiling effect is only germane as to the dosage
at which the ceiling effect kicks in. Dr. Antognini states that “the primary medical and
scientific issue raised in this case is whether the ceiling effect, if it exists for midazolam,
occurs before a person becomes unconscious and insensate to pain and noxious stimuli.” Dr.
Antognini ultimately concludes that “a purported ceiling effect does not affect midazolam’s
ability to induce unconsciousness and render a person insensate to pain and noxious stimuli.”



                                               13
¶22.   In Glossip, the United States Supreme Court granted certiorari on an Eighth

Amendment challenge to Oklahoma’s use of midazolam in its lethal-injection protocol.

Glossip, 135 S. Ct. at 2726. Oklahoma’s three-drug protocol (like Mississippi’s) included

a 500-milligram dose of midazolam as the first drug. Id. Four death-row inmates filed a 42

U.S.C. § 1983 challenge, claiming that the use of midazolam violated the Eighth

Amendment, because, they alleged, it would not render them unable to feel pain as the

second and third drugs were administered. Id. Specifically, the petitioners claimed that a

500-milligram dose of midazolam would not induce or maintain unconsciousness and that

its “ceiling effect” prevented midazolam from producing a greater pharmacological effect

than a normal dose, the very same arguments presented by Stevens in his affidavits and

reports.

¶23.   The district court held an evidentiary hearing and denied the four prisoners’

application for preliminary injunction, finding that they had failed to prove that midazolam

is ineffective. The United States Court of Appeals for the Tenth Circuit affirmed. After

granting certiorari, the United States Supreme Court affirmed the judgments of the trial and

appellate courts and addressed the lack of contrary scientific evidence to support the

petitioners’ claims:

       Petitioners attack the District Court’s findings of fact on two main grounds.
       First, they argue that even if midazolam is powerful enough to induce
       unconsciousness, it is too weak to maintain unconsciousness and insensitivity
       to pain once the second and third drugs are administered. Second, while
       conceding that the 500-milligram dose of midazolam is much higher than the
       normal therapeutic dose, they contend that this fact is irrelevant because
       midazolam has a “ceiling effect”—that is, at a certain point, an increase in the



                                             14
dose administered will not have any greater effect on the inmate. Neither
argument succeeds.

The District Court found that midazolam is capable of placing a person “at a
sufficient level of unconsciousness to resist the noxious stimuli which could
occur from the application of the second and third drugs.” . . . This conclusion
was not clearly erroneous. Respondents’ expert, Dr. Evans, testified that the
proper administration of a 500-milligram dose of midazolam would make it a
“virtual certainty” that any individual would be “at a sufficient level of
unconsciousness to resist the noxious stimuli which could occur from
application of the 2nd and 3rd drugs” used in the Oklahoma protocol. . . . And
petitioners’ experts acknowledged that they had no contrary scientific proof.
. . . (Dr. Sasich stating that the ability of midazolam to render a person
insensate to the second and third drugs “has not been subjected to scientific
testing”); . . . (Dr. Lubarsky stating that “there is no scientific literature
addressing the use of midazolam as a manner to administer lethal injections in
humans”).

....

Testimony from both sides supports the District Court’s conclusion that
midazolam can render a person insensate to pain. Dr. Evans testified that
although midazolam is not an analgesic, it can nonetheless “render the person
unconscious and ‘insensate’ during the remainder of the procedure.” . . . In his
discussion about the ceiling effect, Dr. Sasich agreed that as the dose of
midazolam increases, it is “expected to produce sedation, amnesia, and finally
lack of response to stimuli such as pain (unconsciousness).” . . . Petitioners
argue that midazolam is not powerful enough to keep a person insensate to
pain after the administration of the second and third drugs, but Dr. Evans
presented creditable testimony to the contrary. . . . (testifying that a 500-
milligram dose of midazolam will induce a coma). Indeed, low doses of
midazolam are sufficient to induce unconsciousness and are even sometimes
used as the sole relevant drug in certain medical procedures. Dr. Sasich
conceded, for example, that midazolam might be used for medical procedures
like colonoscopies and gastroscopies. . . .

Petitioners emphasize that midazolam is not recommended or approved for use
as the sole anesthetic during painful surgery, but there are two reasons why this
is not dispositive. First, as the District Court found, the 500-milligram dose
at issue here “is many times higher than a normal therapeutic does of
midazolam.” . . . The effect of a small dose of midazolam has minimal
probative value about the effect of a 500-milligram dose. Second, the fact that

                                       15
a low dose of midazolam is not the best drug for maintaining unconsciousness
during surgery says little about whether a 500-milligram dose of midazolam
is constitutionally adequate for purposes of conducting an execution. We
recognized this point in Baze, where we concluded that although the medical
standard of care might require the use of a blood pressure cuff and an
electrocardiogram during surgeries, this does not mean those procedures are
required for an execution to pass Eighth Amendment scrutiny. . . .

....

Petitioners assert that midazolam’s “ceiling effect” undermines the District
Court’s finding about the effectiveness of the huge dose administered in the
Oklahoma protocol. Petitioners argue that midazolam has a “ceiling” above
which any increase in dosage produces no effect. As a result, they maintain,
it is wrong to assume that a 500-milligram dose has a much greater effect than
a therapeutic dose of about 5 milligrams. But the mere fact that midazolam
has such a ceiling cannot be dispositive. Dr. Sasich testified that “all drugs
essentially have a ceiling effect.” . . . The relevant question here is whether
midazolam’s ceiling effect occurs below the level of a 500-milligram dose and
at a point at which the drug does not have the effect of rendering a person
insensate to pain caused by the second and third drugs.

Petitioners provided little probative evidence on this point, and the speculative
evidence that they did present to the District Court does not come close to
establishing that its factual findings were clearly erroneous. Dr. Sasich stated
in his expert report that the literature “indicates” that midazolam has a ceiling
effect, but he conceded that he “was unable to determine the midazolam dose
for a ceiling effect on unconsciousness because there is no literature in which
such testing has been done.” . . . Dr. Lubarsky’s report was similar, . . . and the
testimony of petitioners’ experts at the hearing was no more compelling. Dr.
Sasich frankly admitted that he did a “search to try and determine at what dose
of midazolam you would get a ceiling effect,” but concluded: “I could not find
one.” . . . The closest petitioners came was Dr. Lubarsky’s suggestion that the
ceiling effect occurs “[p]robably after about . . . 40 to 50 milligrams,” but he
added that he had not actually done the relevant calculations, and he admitted:
“I can’t tell you right now” at what dose the ceiling effect occurs. . . .We
cannot conclude that the District Court committed clear error in declining to
find, based on such speculative evidence, that the ceiling effect negates
midazolam’s ability to render an inmate insensate to pain caused by the second
and third drugs in the protocol.




                                        16
Glossip, 135 S. Ct. at 2740-43 (internal citations and emphasis omitted). The United States

Supreme Court also noted that numerous courts have examined similar challenges to

midazolam but have ultimately concluded “that the use of midazolam as the first drug in a

three-drug protocol is likely to render an inmate insensate to pain that might result from

administration of the paralytic agent and potassium chloride.”11 Glossip, 135 S. Ct. at 2739.

¶24.   Based on the above holdings in Glossip, Loden’s petition fails. Like the petitioners

in Glossip, Loden’s filings lack contrary scientific evidence to support his challenge to

midazolam. Furthermore, Loden’s expert, Stevens, has failed to present any new argument

that was not already considered and rejected by the United States Supreme Court. Indeed,

like the petitioners in Glossip, Stevens attacks MDOC’s use of midazolam on two main

grounds: (1) that midazolam is incapable of rendering an inmate unconscious, and (2) that

midazolam’s “ceiling effect” renders the drug’s effect no greater than normal therapeutic

doses. Stevens provides nearly identical expert opinions and conclusions to those offered in

Glossip. The United States Supreme Court expressly rejected those arguments, opinions, and

conclusions as speculative, because the petitioners had not offered contrary scientific proof

to support their challenge to midazolam. See Glossip, 135 S. Ct. at 2741 (noting expert’s

testimony that, to a virtual certainty, any individual would be at a sufficient level of



       11
        See, e.g., In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017); Gray v.
McAuliffe, No. 3:16CV982-HEH, 2017 WL 102970 (E.D. Va. Jan. 10, 2017); Grayson v.
Warden, 672 Fed. Appx. 956 (11th Cir. 2016); Brooks v. Warden, 810 F.3d 812 (11th Cir.
2016); Warner v. Gross, 776 F.3d 721, 723 (10th Cir. 2015); Chavez v. Florida SP
Warden, 742 F.3d 1267, 1268 (11th Cir. 2014); Banks v. State, 150 So. 3d 797 (Fla. 2014);
Howell v. State, 133 So. 3d 511 (Fla. 2014); Muhammad v. State, 132 So. 3d 176 (Fla.
2013).

                                             17
unconsciousness to resist the noxious stimuli which could occur from application of the

second and third drugs after administering a 500-milligram dose of midazolam). Here, too,

Stevens’s opinions concerning the ceiling effect of midazolam and its ability to induce

unconsciousness lack scientific proof supporting Loden’s challenge to midazolam and

contain the same speculative assertions that the Supreme Court rejected in Glossip. Stevens

conceded that no scientific studies or tests of midazolam’s ceiling effect on humans exist and

freely conceded that “unconsciousness per se cannot be measured.” Loden offered no other

scientific proof to support his hypothesis that midazolam is not an “appropriate anesthetic or

sedative” under Mississippi Code Section 99-19-51(1).

¶25.   Loden attempts to distinguish Glossip, arguing that the Supreme Court merely held

that the district court “did not abuse its discretion in denying a preliminary injunction.”

Loden argues that, if MDOC’s argument is correct—that is, if the Supreme Court held that

midazolam is clearly sufficient to induce unconsciousness and render an inmate insensate to

pain, then “the case would be over.” Loden asserts that, because Glossip is still proceeding

in Oklahoma, the Supreme Court’s holding is not dispositive. This argument is without

merit. The Supreme Court’s analysis began with holding that “this case turns on whether

petitioners are able to establish a likelihood of success on the merits” of their challenge to

midazolam. Glossip, 135 S. Ct at 2737 (emphasis added). The Supreme Court then

examined the petitioners’ substantive arguments against the use of midazolam—the same

arguments made by Stevens for Loden—and specifically rejected them, affirming the district

court’s and the Tenth Circuit’s holding that midazolam is capable of placing a person “at a



                                             18
sufficient level of unconsciousness to resist the noxious stimuli which could occur from the

application of the second and third drugs.” Id. at 2740. Because Loden has not offered any

contrary scientific proof to support his challenge to midazolam, we hold likewise. Pursuant

to the United States Supreme Court’s holdings in Glossip, a 500-milligram dose of

midazolam satisfies Mississippi’s statutory standard for lethal injection under Mississippi

Code Section 99-19-51(1).

¶26.   Although Loden frames his petition for PCR as a state-law challenge instead of an

Eighth Amendment challenge as in Glossip, the underlying claims to support his statutory

challenge are the very same claims that were made in Glossip. Loden cannot circumvent the

Supreme Court’s holding in Glossip—that a 500-milligram dose of midazolam is capable of

placing a person “at a sufficient level of unconsciousness” to “render a person insensate to

pain[,]” for the Supreme Court’s holdings mirror Mississippi’s statutory requirement for

lethal injection. Glossip, 135 S. Ct. at 2739-41; see also Miss. Code Ann. § 99-19-51(1)

(“[T]he term “appropriate anesthetic or sedative” means any substance that, if properly

administered in a sufficient quantity, is likely to render the condemned inmate unconscious,

so that the execution process should not entail a substantial risk of severe pain.”). Glossip

dictates the outcome in this case. Loden has not demonstrated otherwise. Loden fails to

demonstrate any likelihood of success on the merits to his challenge to midazolam and fails

to present a substantial showing of the denial of a state or federal right from MDOC’s use

of midazolam in its lethal-injection protocol. See Miss. Code Ann. § 99-39-27.




                                             19
                                       CONCLUSION

¶27.   For the aforementioned reasons, the Court finds that Loden has failed to demonstrate

any likelihood of success on the merits of his challenge to midazolam and has failed to

present a substantial showing of the denial of a state or federal right based on MDOC’s use

of a 500-milligram dose of midazolam in its lethal-injection protocol. Thus, Loden has not

demonstrated that he is entitled to post-conviction relief. His petition is denied.

¶28.   PETITION FOR POST-CONVICTION RELIEF IS DENIED.

     WALLER, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND
ISHEE, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS, P.J.

       KING, JUSTICE, DISSENTING:

¶29.   The sole issue in this case is whether Thomas Loden is entitled to an evidentiary

hearing on his petition for post-conviction relief. This Court need not and should not reach

the merits of his petition, because he is entitled to an evidentiary hearing in the trial court.

Accordingly, I respectfully dissent.

¶30.   The parties disagree about whether a 500-milligram dose of midazolam is an

“appropriate anaesthetic or sedative” that will render Loden “unconscious, so that the

execution process should not entail a substantial risk of severe pain” pursuant to state statute.

Miss. Code Ann. § 99-19-51(1) (Supp. 2018). Loden presents two affidavits from Dr. Craig

Stevens to support his argument that midazolam is incapable of rendering an inmate

unconscious and insensate to pain. The State presents Dr. Richard Antognini’s affidavit, in




                                               20
which he opines that 500 milligrams of midazolam will render an inmate “completely

unconscious and insensate to pain.”

¶31.   When a petitioner and the State produce contradictory affidavits in post-conviction

proceedings, an evidentiary hearing should be ordered when the contested facts are material

and the affidavit produced by the petitioner is not a “sham.” Wright v. State, 577 So. 2d 387,

390 (Miss. 1991) (“In order for a contested fact to require an evidentiary hearing it must be

material. Moreover, where an affidavit is overwhelmingly belied by unimpeachable

documentary evidence in the record such as, for example, a transcript or written statements

of the affiant to the contrary to the extent that the court can conclude that the affidavit is a

sham no hearing is required.”); see also Neal v. State, 525 So. 2d 1279, 1281 n.2 (Miss.

1987) (“Post-conviction actions employ many of the procedural trappings of a civil action.

. . . As in civil actions, we do not resolve genuine issues of material fact by a process of trial

by affidavit.”).12

       12
         In Neal, Justice Robertson explained in his separate opinion that the State should
respond to a petitioner’s affidavit in PCR proceedings by showing that an evidentiary
hearing is not warranted, not by presenting a contradictory affidavit:

       The State appears to be of the view that its function in responding to a post-
       conviction application is to present counter affidavits which contradict and
       overcome petitioner’s affidavits. But this is not the case at all, for we do not
       engage in trial by affidavits here any more than any other proceeding. The
       State would be better advised to direct its responses to the idea that an
       evidentiary hearing is not required, that is, to the proposition that either the
       petitioner’s showing is not in proper form or that the facts he alleges are
       supported by affidavits suggesting no reasonable possibility that at an
       evidentiary hearing [the petitioner] may be able to establish a claim for relief
       from his sentence or conviction. The counter affidavit process is at the very
       earliest one in which the State should engage in connection with a motion for
       summary judgment. Miss. Code Ann. § 99-39-19(2) (Supp. 1986).

                                               21
¶32.   Loden frames the issue as a “simple matter of enforcing the statutory command.” He

clarifies that the instant petition does not raise an Eighth Amendment method-of-execution

challenge, but is grounded solely in state law.

¶33.   The majority of cases that discuss midazolam address constitutional arguments. See

Glossip v. Gross, 135 S. Ct. 2726, 2739-40, 192 L. Ed. 2d 761 (2015). Here, the majority

argues that Glossip is instructive to the state-law claim at issue. The Court in Glossip,

however, was not presented with a state-law based claim; instead, it considered whether

midazolam violates the Eighth Amendment. The petitioners in Glossip were on death row

in Oklahoma. Id. at 2735. In contrast to Section 99-19-51’s requirement that the State of

Mississippi use “an appropriate anesthetic or sedative[,]” Oklahoma’s statute does not

contain a specific directive. Oklahoma’s statute provides, “The punishment of death shall

be carried out by the administration of a lethal quantity of a drug or drugs until death is

pronounced by a licensed physician according to accepted standards of medical practice.”

Okla. Stat. Ann. § 1014. Additionally, Glossip was not dispositive regarding midazolam; the

district court found that the plaintiffs were not entitled to a preliminary injunction because

their claims did not have a substantial likelihood of success; the Supreme Court affirmed this

decision, but did not rule that the plaintiffs also should lose the substantive case. Glossip,

135 S. Ct. at 2736, 2746. And, importantly, the Supreme Court was reviewing a more

developed record including testimony and documents, not simply affidavits.13 Id. at 2735.


Neal, 525 So. 2d at 1287 (Robertson, J., concurring in part, dissenting in part).
       13
        “[A]fter discovery, the District Court held a 3-day evidentiary hearing on the
preliminary injunction motion. The District Court heard testimony from 17 witnesses and

                                             22
It did not itself weight the expert opinions, as the majority inappropriately does; rather, it

found that the trial court was not clearly erroneous in its conclusion regarding midazolam

after the trial court held a three-day evidentiary hearing. Id. at 2739. Thus, Glossip is not

dispositive regarding whether an evidentiary hearing is warranted on a state-law claim.

Indeed, a thorough evidentiary hearing did occur in Glossip, providing the Supreme Court

with an adequate record and allowing the district court to decide evidentiary matters and

matters of credibility. The majority goes so far as to chastise Dr. Stevens for failing to cite

enough “proof” for his conclusion that he was unable to determine the ceiling effect for

midazolam, even criticizing him for failing to “provide any evidence” regarding a ceiling

effect. Maj. Op. ¶ 17. However, the majority denies the very evidentiary hearing in which

Loden and Dr. Stevens would have the opportunity to present proof and evidence under the

Mississippi Rules of Evidence. Moreover, in Glossip, the Supreme Court specifically held

that the lack of research on non-therapeutic doses of midazolam applies equally to both

parties’ cases, noting that “because a 500-milligram dose is never administered for a

therapeutic purpose, extrapolation was reasonable.” Glossip, 135 S. Ct. at 2741.

¶34.   In addition to sharply criticizing Dr. Stevens for extrapolations that the Supreme Court

found acceptable, the majority attempts to paint Dr. Stevens’s affidavits as a sham and

“contradictory” because “Stevens opines that a 500-milligram dose of midazolam cannot

render an inmate unconscious, yet in the very same report, Stevens concedes that much

smaller doses of midazolam are routinely used for sedation and anesthesia.” Maj. Op. ¶ 16.



reviewed numerous exhibits.” Id. at 2735.

                                              23
To hold that these two statements are “contradictory” misrepresents or misunderstands

medical terminology, a misunderstanding that might be corrected at an evidentiary hearing.

“Unconscious” is defined as “not conscious” and “unconsciousness” is defined as “an

imprecise term for severely impaired awareness of self and the surrounding environment;

most often used as a synonym for coma or unresponsiveness.” Unconscious, PDR Medical

Dictionary (3d ed. 2006); Unconsciousness, PDR Medical Dictionary (3d ed. 2006).

“Sedation” is defined as “the act of calming, especially by the administration of a sedative”

and “sedative” is defined as “calming; quieting” and “a drug that quiets nervous excitement.”

Sedation, PDR Medical Dictionary (3d ed. 2006); Sedative, PDR Medical Dictionary (3d ed.

2006). “Anesthesia” is defined as a “loss of sensation resulting from pharmacological

depression of nerve function.” Anesthesia, PDR Medical Dictionary (3d ed. 2006). Clearly,

a person can lose some of his sensation (anesthesia) without becoming unconscious. A

person can also become calm (sedative) without becoming unconscious. Dr. Stevens’s

admission that midazolam is used for sedation and anesthesia in no way contradicts his

assertion that it cannot render an inmate unconscious.

¶35.   In fact, Dr. Stevens was the expert witness for prisoners in the Ohio litigation

regarding midazolam, and the trial court found that,

       [a]lthough there was no time to conduct a Daubert hearing, Plaintiffs
       presented an adequate foundation in this hearing which, when coupled with
       what was presented in January, established a sufficient basis to find Dr.
       Stevens was qualified to offer opinions on the subjects on which he was
       presented so as to comply with Fed. R. Evid. 702.




                                             24
In re Ohio Execution Protocol Litig., No. 2:11-cv-1016, 2017 WL 5020138 (S.D. Ohio Nov.

3, 2017). In the appeal of that case, the United States Court of Appeals for the Sixth Circuit,

while ultimately finding that the petitioners had not proved that midazolam is “sure or very

likely” to cause serious pain, conceded that “the plaintiffs have shown some risk that Ohio’s

execution protocol may cause some degree of pain, at least to some people[,]” a showing

made primarily through Dr. Stevens’s testimony. In re Ohio Execution Protocol, 860 F.3d

881, 890 (6th Cir. 2017).14

¶36.   Furthermore, the majority parses two phrases out of approximately thirty-five pages

of scientific reports and gaslights its readers into thinking that these two phrases, taken out

of context, magically render the affidavit so contradictory as to be a sham. The majority’s

conclusion, which is essentially that any scientist who disagrees with the majority’s

unscientific opinion on midazolam is a sham, is simply not supported by the expert reports,

nor is it supported by caselaw that by and large allows and examines contradictory expert

opinions on midazolam. The information upon which Dr. Stevens bases his conclusions does

not appear to be a sham, and reasonable minds in the scientific community often disagree



       14
        In an attempt to bolster its finding that Dr. Stevens’s affidavit is a sham, the
majority misrepresents the findings of the Sixth Circuit. After an evidentiary hearing, the
Sixth Circuit took no issue with Dr. Stevens’s qualifications and even credited his testimony,
but simply determined that it did not meet the legal standard the plaintiff was required to
meet. Crediting Dr. Stevens’s testimony is a far cry from determining that his affidavit is
so untrustworthy as to be a sham. The majority appears to find that whenever two experts
disagree, the expert who “loses” automatically becomes a scientific sham. Such a ruling is
dangerously contrary to science and the law. Further, the majority’s misrepresentations of
caselaw and the affidavit actually bolster the notion that an evidentiary hearing is needed,
because the majority factfinds and makes misrepresentations and leaps from facts to
determine that the affidavit is a sham.

                                              25
regarding issues that cannot be proven to certainty, which is exactly what occurred here. To

declare the affidavit a sham and speculatively inadmissible under Daubert and the Rules of

Evidence without a hearing and without a full record of scientific testimony goes far beyond

the appropriate role of an appellate court. It also seemingly ignores the Supreme Court’s

warnings that scientific controversies are beyond the expertise of the courts by declaring its

scientific opinion to be more informed than that of an actual scientist who other courts have

found to be an acceptable expert.

¶37.   Loden provides a Montana case which addresses a similar deviation-from-state-law

challenge, and distinguishes such a claim from a constitutional challenge. Smith v.

Montana, No. BDV-2008-303 (Oct. 6, 2015). There, the petitioners challenged whether

pentobarbital—the drug selected by the Montana Department of Corrections to perform lethal

injections—meets the legislative directive that the drug be an “ultra-fast acting barbiturate.”

Id. at *2; see also Mont. Code Ann. § 46-19-103(3). The Montana court went to great

lengths to distinguish this state-law challenge from an Eighth Amendment claim:

       [I]t is important to clarify the nature of this case. This Court has not been
       asked and will not make a determination as to whether lethal injection of the
       Plaintiffs constitutes cruel and unusual punishment. This case is not about the
       constitutionality or appropriateness of the death penalty in Montana. This case
       is not about whether the use of pentobarbital in a lethal injection setting is
       cruel and unusual or if pentobarbital in the doses contemplated by the State of
       Montana would produce a painless death. . . . This case is only about whether
       the drug selected by the Department of Corrections to effectuate the Plaintiffs’
       lethal injections, pentobarbitol, meets the legislatively required classification
       of being an “ultra-fast acting barbiturate.”




                                              26
Id. at **1-2. After a hearing, the court found that pentobarbital did not meet Montana’s

statutory requirements and enjoined the state from using the drug in its lethal injection

protocol. Id. at *11.

¶38.   Taking Loden’s claim as a state-law challenge—that is, whether midazolam conforms

with Section 99-19-51’s requirement that the State use “an appropriate anesthetic or

sedative” which “is likely to render the [Loden] unconscious, so that the execution process

should not entail a substantial risk of severe pain”—he has presented sufficient support to

warrant an evidentiary hearing. Loden and the State have produced competing affidavits on

a material issue. And, although the State presents a Daubert-style defense15 to Dr. Stevens’s

affidavit, his affidavit is not a “sham.” Wright, 577 So. 2d at 390 (“[W]here an affidavit is

overwhelmingly belied by unimpeachable documentary evidence in the record such as, for

example, a transcript or written statements of the affiant to the contrary to the extent that the

court can conclude that the affidavit is a sham no hearing is required.”).

¶39.   At this point, the relevant inquiry before the Court is whether Loden is entitled to a

hearing. Cf. Thorson v. State, 76 So. 3d 667, 676 n.14 (Miss. 2011) (“the evidence sufficient

to warrant the granting of an evidentiary hearing . . . in no way permeates the trial judge’s

testing and weighing of the evidence”); see also Rowland v. Britt, 867 So. 2d 260, 262

(Miss. Ct. App. 2003) (“The purpose of an evidentiary hearing is for the court to receive

evidence in order to make findings of fact.”).



       15
        In fact, in Glossip, the petitioners challenged the state’s expert, who was a doctor
of pharmacy, claiming that inconsistencies in his testimony existed. The district court denied
the Daubert challenge, and the Supreme Court upheld that decision.

                                               27
¶40.   Loden, through Dr. Stevens’s affidavits, has established a prima facie claim. The

affidavits are not a “sham.” As such, an evidentiary hearing is warranted, especially when

considering the heightened standard of review we apply to death penalty cases.16 See

Harveston v. State, 597 So. 2d 641, 643 (Miss. 1992) (petition meeting basic pleading

requirements is sufficient to mandate an evidentiary hearing unless it appears beyond doubt

that petitioner can prove no set of facts which would entitle him to relief). I would therefore

grant Loden’s petition and remand to the trial court for an evidentiary hearing.

       KITCHENS, P.J., JOINS THIS OPINION.




       16
        Because execution is final, it “weighs in favor of hearing plaintiffs’ claims.”
McGehee v. Hutchinson, No. 4:17-cv-00179 KGB, 2017 WL 1381663, at *1 (E.D. Ark.
April 15, 2017). A review of the caselaw indicates that courts generally hold evidentiary
hearings regarding midazolam claims.

                                              28
