                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-1848
                        ___________________________

                              Marcel Wayne Williams

                       lllllllllllllllllllllPetitioner - Appellant

                                           v.

        Wendy Kelley, Director, Arkansas Department of Correction, et al.

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Eastern District of Arkansas - Pine Bluff
                                  ____________

                             Submitted: April 24, 2017
                               Filed: April 24, 2017
                                   [Published]
                                  ____________

Before WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.
                         ____________

PER CURIAM.

      On April 11, 2017, Arkansas inmate Marcel Williams, who is scheduled to be
executed on April 24, brought this 42 U.S.C. § 1983 action challenging the Arkansas
lethal injection execution protocol. The district court1 denied his motion for a
preliminary injunction. Williams appeals and moves for a stay of execution pending
appeal. We deny the motion for stay.

       In April 2015, Williams joined other Arkansas prisoners in filing an action
raising a federal constitutional challenge to the recently adopted method of execution,
the method Williams challenges in this case. When the State removed, plaintiffs
dismissed without prejudice and refiled in state court, alleging only violations of
Arkansas law. After a year of litigation, the Supreme Court of Arkansas dismissed
the claim that the method of execution constituted cruel or unusual punishment in
violation of the Arkansas Constitution. Kelley v. Johnson, 496 S.W. 3d 346, 357
(Ark. 2016), cert. denied, 137 S. Ct. 1067 (2017). On February 27, 2017, six days
after the denial of certiorari, Arkansas Governor Asa Hutchinson scheduled the
executions of Williams and seven other death row prisoners.

       On March 27, Williams and eight other inmates sentenced to death filed an
action alleging that the method of execution violates the Eighth Amendment in all
cases. The district court granted stays of execution, but we vacated the stays,
concluding (i) the prisoners unreasonably delayed in bringing their federal claims, (ii)
they failed to show a likelihood of success on the merits of their claim that the
execution protocol was “sure or very likely to cause serious illness and needless
suffering,” Glossip v. Gross, 135 S. Ct. 2726, 2737 (2015), quoting Baze v. Rees, 553
U.S. 35, 50 (2008) (plurality opinion); and (iii) the prisoners failed to make the
second showing Glossip requires -- a significant possibility of establishing a known,
available alternative that would significantly reduce a substantial risk of severe pain.




      1
       The Honorable Kristine G. Baker, United States District Judge for the Eastern
District of Arkansas.

                                          -2-
McGehee v. Hutchinson, No. 17-1804 (8th Cir. Apr. 17), cert. denied, No. 16A1003
(16-8770) (April 20, 2017).2

      Williams filed this separate action, an “as-applied” challenge alleging that, due
to his medical conditions -- morbid obesity, diabetes and attendant neuropathy,
hypertension, and sleep apnea -- there is a substantial and unjustifiable risk that the
execution method will cause him severe pain and serious harm in violation of the
Eighth Amendment.

        On April 21, 2017, the district court held an evidentiary hearing on Williams’s
motion for a preliminary injunction. In addition to the record from the hearing in
McGehee, Williams called as witnesses Dr. Joel Zivot, an anesthesiologist who also
testified at the McGehee hearing, and Arkansas Department of Corrections Director
Wendy Kelley. Based on his review of Williams’s medical records and a March 23
physical examination, Dr. Zivot opined that the protocol is “unlikely” to kill Mr.
Williams but more likely to leave him disabled, and that if the lethal-injection
protocol causes death, “Williams will experience his death as choking and
suffocating.” In addition, Dr. Zivot opined that Williams’s weight -- approximately
400 pounds -- will make locating a vein for IV access difficult and increase the risk
that midazolam, the initial drug, will not properly provide an anesthetic effect; that
his obstructive sleep apnea puts him at risk of respiratory distress during the
procedure; and that, given his low potassium levels, “it is possible” that the
administration of potassium chloride will not actually kill him. Director Kelley



      2
        As we explained in McGehee: “The State’s current lethal injection protocol
calls for injection of 500 milligrams of midazolam, followed by 100 milligrams of
vercuronium bromide, followed by 240 milliequivalents of potassium chloride. If the
prisoner remains conscious after the injection of the midazolam, however, the
executioner will inject another 500 milligrams of midazolam before injecting
vercuronium bromide.” McGehee, No. 17-1804, Slip. Op. at 2.

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testified that a pre-execution “vein check” revealed that only one of Williams’s arms
had a “good vein.”

      At the hearing, defendants introduced evidence that a medically-trained person
aided by an ultrasound device can insert an IV line into a 400-pound man, and a 500
mg dose of midazolam “would render an approximately 400-pound man unconscious
and unable to sense any pain or the need to breathe,” regardless of whether he is
diabetic, suffers from sleep apnea, or has hypertension.

       The district court denied Williams’s motion for a preliminary injunction on
April 21. The court concluded that Williams unreasonably delayed in bringing his
as-applied challenge, and split his claims by not raising this claim in the facial
challenge in McGehee. On the merits, the court found that Williams had not
identified an alternative method of execution in addition to those suggested in
McGehee, did not establish what additional safeguards would significantly reduce a
substantial risk of severe pain given Williams’s medical conditions, and failed to
offer sufficient evidence to establish that the execution protocol as applied to him “is
sure or very likely to cause severe pain.” The court further concluded that Williams’s
use of piecemeal litigation and dilatory tactics was sufficient reason to deny a stay of
execution. See Hill v. McDonough, 547 U.S. 573, 584-85 (2004).

       We agree with the district court that Williams failed to offer evidence
establishing a significant likelihood of success on the merits. “Inmates seeking time
to challenge the manner in which the State plans to execute them must satisfy all of
the requirements for a stay, including a showing of a significant possibility of success
on the merits.” Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir.), cert. denied, 136
S. Ct. 601 (2015).

      To succeed on the merits, Williams must show that the execution method is
“sure or very likely to cause serious illness and needless suffering.” Glossip, 135

                                          -4-
S. Ct. at 2737. Dr. Zivot opined that the execution protocol is more likely to maim
than kill Williams. The State produced testimony that the execution protocol will
succeed despite Williams’s health conditions. As in McGehee, the evidence is
“equivocal,” lacks “scientific consensus” and presents “a paucity of reliable scientific
evidence” on the impact of the lethal-injection protocol on a person with Williams’s
health conditions. No. 17-1804, Slip. Op. at 5-6.

       To succeed on the merits of his claim, Williams must also identify a known and
available alternative method of execution that would substantially reduce a significant
risk of pain. See Johnson, 809 F.3d at 391. In terms of alternative protocols,
Williams argues the same alternatives offered by the inmates in McGehee, which we
concluded did not meet Glossip’s standard and were not likely to emerge as more than
a “slightly or marginally safer alternative.” McGehee, Slip Op. at 7, quoting 135 S.
Ct. at 2737. Williams argues he is not required to identify a known, available
alternative method in an as-applied challenge, but we rejected that contention in
Johnson, 809 F.3d at 391. In Bucklew v. Lombardi, 783 F.3d 1120, 1127 (8th Cir.
2015), we recognized that, in an as-applied challenge, evidence that the State
unreasonably refused to change its regular method of execution to a feasible, readily
implemented alternative that would significantly reduce the substantial risk of pain
caused by a prisoner’s unique medical condition could satisfy the Glossip standard
in an unusual case. Williams argues Director Kelley’s testimony regarding his “vein
check” establishes this is such a case. However, rather than establish a known,
available alternative, this evidence shows that the State implements its current method
in a manner designed to reduce the risk of severe pain. (Director Kelley testified that
all inmates are physically examined to locate infusion sites prior to execution.)

       Finally, we agree with the district court that Williams unreasonably delayed in
bringing this as-applied challenge. Not only did he engage in piecemeal litigation by
not joining this claim when he joined the McGehee suit, but he also failed to bring
this claim when he and other prisoners brought state and federal challenges to the

                                          -5-
method of execution after its adoption in 2015. He does not allege that his various
health issues arose recently (other than a sleep apnea diagnosis in March 2017). If
he had timely asserted an as-applied claim, there would have been time to litigate
whether his conditions required or suggested modification of the protocol as applied
to him. While Williams is correct that his medical conditions may evolve and worsen
over time, so that a recent medical examination was needed after his execution was
scheduled, timely pursuit of an as-applied challenge would have established an
evidentiary base, likely making a last-minute stay of execution unnecessary. This
“use of ‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny
a stay.” McGehee, No. 17-1804, Slip. Op. at 4, quoting Hill, 547 U.S. at 583.

      For the foregoing reasons, we deny Williams’s motion for a stay of execution
pending appeal.
                      ______________________________




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