           Case: 19-11878   Date Filed: 05/24/2019   Page: 1 of 11


                                                       [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-11878
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:19-cv-00057-KD-MU



CHRISTOPHER LEE PRICE,

                                               Plaintiff - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY

                                               Defendants - Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                              (May 24, 2019)

Before TJOFLAT, WILSON and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Christopher Lee Price appeals from the district court’s

denial of Price’s motion to stay his execution under 28 U.S.C. § 1292(a)(1). Before

addressing Price’s arguments, we pause to briefly set forth the facts and relevant

history.

                                           I.

      The last time Price was before us, we issued a decision affirming, on different

grounds, the district court’s denial of a previous motion for stay of execution (“First

Motion for Stay”) filed by Price. See Price v. Comm’r, Dep’t. of Corr., 920 F.3d

1317 (11th Cir. 2019). There, we found that the district court had before it no reliable

evidence from which to conclude that execution by nitrogen hypoxia would

significantly reduce Price’s risk of substantial pain as compared to the State of

Alabama’s current three-drug lethal-injection protocol. Id. at 1330. In reaching this

conclusion, we determined that the district court improperly relied on a preliminary

draft report by East Central University labeled “Do Not Cite.” Id.

      Following our affirmance, and just before his scheduled execution, Price filed

a petition for writ of certiorari and an application for a stay of his execution with the

Supreme Court. While those filings were pending, Price filed another motion for

stay of execution with the district court, seeking essentially the same relief as the

first, but attaching several affidavits and a final report by the East Central University




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(“Second Motion for Stay”).1 The district court granted the Second Motion for Stay

hours before Price’s scheduled execution, after concluding that Price met his burden

of showing a likelihood of success on the merits of his Eighth Amendment claim.

The State immediately filed with this Court a motion to vacate the stay, arguing, in

part, that the district court lacked jurisdiction to enter its order. We found that

substantial questions about our jurisdiction and the district court’s jurisdiction were

present, so we entered an order staying Price’s impending execution until further

order of the Court. The State then sought for the Supreme Court to vacate the stays.

       In a 5-4 decision entered in the early morning hours of April 12, 2019, the

Supreme Court lifted the stays entered by both this Court and the district court. The

majority explained its reasoning as follows:

              The application to vacate the stay of execution, presented
              to Justice THOMAS and by him referred to the Court, is
              granted, and the stays entered by the District Court for the
              Southern District of Alabama and the United States Court
              of Appeals for the Eleventh Circuit on April 11, 2019, are
              vacated. In June 2018, death-row inmates in Alabama
              whose convictions were final before June 1, 2018, had 30
              days to elect to be executed via nitrogen hypoxia. Ala.
              Code § 15-18-82.1(b)(2). Price, whose conviction became
              final in 1999, did not do so, even though the record
              indicates that all death-row inmates were provided a
              written election form, and 48 other death-row inmates
              elected nitrogen hypoxia. He then waited until February
              2019 to file this action and submitted additional evidence
              today, a few hours before his scheduled execution time.

       1
       In the meantime, Price filed with this Court an Emergency Motion to Immediately Issue
Mandate.
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             See Gomez v. United States Dist. Court for Northern Dist.
             of Cal., 503 U.S. 653, 654, 112 S. Ct. 1652, 118 L.Ed.2d
             293 (1992) (per curiam) (“A court may consider the last-
             minute nature of an application to stay execution in
             deciding whether to grant equitable relief.”).
Dunn v. Price, 139 S. Ct. 1312 (Apr. 12, 2019). By the time the Supreme Court

entered its decision, however, Price’s death warrant had already expired, so his

execution did not proceed as originally scheduled.

      A few days later, on April 15, 2019, the State filed an emergency motion for

an expedited second execution date with the Alabama Supreme Court. On the same

date, the district court held a status conference with the parties to determine how to

proceed with Price’s method-of-execution lawsuit.          At the conference, Price

requested that the district court schedule his Section 1983 claim for trial. In response

to questions posed by the district court during the status conference, both Price and

the State filed their relative positions regarding whether the district court had

jurisdiction to proceed with the case and whether the Supreme Court’s order vacating

the stays of Price’s execution resolved Price’s Section 1983 claim. Both parties

agreed that the district court had jurisdiction to proceed with the case. And although

both parties appeared to agree that the Supreme Court’s April 12, 2019, order did

not resolve the merits of the Section 1983 action, the State argued that the order

made it clear that Price was not entitled to another stay of execution.




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      Soon thereafter, the district court entered an order granting Price’s oral request

for an expedited trial, setting a June 10, 2019, non-jury trial on Price’s Eighth

Amendment claim. In the same order, the district court explained, “The Plaintiff’s

request that the case be expedited further, if the execution date is set before the trial,

is DENIED. Pursuant to the Supreme Court’s [April 12, 2019,] decision, no further

stay of execution will be granted.”2 One week later, on April 29, 2019, the State of

Alabama set Price’s new execution date for May 30, 2019.

      In response, Price filed a motion in which he sought, among other things,

another stay of execution (“Third Motion for Stay”). The following day, on May 1,

2019, the district court denied, in part, Price’s request to stay his execution. In doing

so, the district court set forth the entirety of the Supreme Court’s April 12, 2019,

majority decision. The district court then explained that the “Supreme Court vacated

the stay of execution due to Price’s failure to timely elect for nitrogen hypoxia,

making clear that a stay of execution is not an available remedy to Price.” The

district court entered another order denying the remaining portion of Price’s motion

on May 2, 2019.

      Price now appeals the district court’s orders (1) indicating that no further stays

will be entered, and (2) denying his Third Motion for Stay. He argues that the district




      2
          At the time, Price’s new execution date had not yet been set.
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court erred as a matter of law in construing the Supreme Court’s April 12, 2019,

decision as categorically precluding it from issuing any further stays in Price’s case.

                                          II.

        We review the district court’s categorical denial of future motions for stay of

execution, as well as its denial of the Third Motion for Stay, for abuse of discretion.

Brooks v. Warden, 810 F.3d 812, 818 (11th Cir. 2016). An error of law is an abuse

of discretion. Adams v. Lab. Corp. of Am., 760 F.3d 1322, 1331 (11th Cir. 2014).

After consideration, and in light of the Supreme Court’s prior ruling in its April 12,

2019, order, we conclude that though the district court may not categorically deny

all future motions for stay, without knowledge of the particular bases for them, the

district court did not abuse its discretion when it denied Price’s Third Motion for

Stay.

                                          III.

        We have carefully reviewed the Supreme Court’s April 12, 2019, decision.

There, a majority of the Court lifted the stays of execution entered by this Court and

the district court based on what it found to be Price’s undue delay in the case. See

Dunn, 139 S. Ct. at 1312 (citing Gomez v. United States Dist. Court for Northern

Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam) (“A court may consider the last-

minute nature of an application to stay execution in deciding whether to grant

equitable relief.”)). The majority articulated three examples in support of its finding


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that Price’s actions were untimely and supported a denial of his motion for stay of

execution: (1) Price’s failure to timely elect nitrogen hypoxia within the 30-day

statutory opt-in period; (2) Price’s decision to wait until February 2019 to file a

Section 1983 action challenging his method of execution; and (3) Price’s failure to

submit potentially adequate evidence until a few hours before his scheduled

execution time. See id.

      Recently, albeit in denying a different petition for writ of certiorari filed by

Price, Justice Thomas provided further insight regarding what he and two other

Justices perceived to be dilatory behavior by Price in this case. Price v. Dunn, No.

18-1249, 2019 WL 2078104 (U.S. May 13, 2019) (mem.).                 As evidence of

unjustified delay, Justice Thomas pointed out that Price

             delayed in bringing this successive § 1983 action until
             almost a year after Alabama enacted the legislation
             authorizing nitrogen hypoxia as an alternative method, six
             months after he forwent electing it as his preferred
             method, and weeks after the State sought to set an
             execution date.

Id. at *4 (Thomas, J., concurring). According to Justice Thomas, entering a stay

“under these circumstances—in which the petitioner inexcusably filed additional

evidence hours before his scheduled execution after delaying bringing his challenge

in the first place—only encourages the proliferation of dilatory litigation strategies

that we have recently and repeatedly sought to discourage.” Id. (citations omitted).



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      Here, Price claims the district court misconstrued the Supreme Court’s April

12, 2019, order when it found that the decision precluded the district court from

issuing any further stay of execution. We agree with Price, but only to the extent

that the district court understood the Supreme Court’s April 12, 2019, order to

categorically preclude the issuance of further stays of execution in this case, no

matter the reason. If, for example, some last-minute event occurred that potentially

provided an appropriate basis for a stay and could not possibly have been brought

earlier because the triggering event did not occur until immediately before the

motion was brought (e.g., if the State substituted baby aspirin for midazolam at the

last minute), the Supreme Court’s reasoning that Price could not obtain a stay

because he had been dilatory in seeking one would not apply, and the motion would

have to be evaluated on its own merits.

      But with respect to the order denying the Third Motion for Stay, that is not an

issue. As grounds for its denial, the district court stated that the “Supreme Court

vacated the stay of execution due to Price's failure to timely elect for nitrogen

hypoxia, making clear that a stay of execution is not an available remedy to Price.”

To the extent the district court suggested that Price was not able to seek a stay of

execution only because he failed to timely opt-in to Alabama’s nitrogen hypoxia

protocol within thirty days, we disagree. The Supreme Court’s April 12, 2019,

decision did not announce such a holding.


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      Rather, as we have discussed, the Supreme Court vacated the stays because it

found Price’s actions to be untimely. While the Supreme Court’s April 12, 2019,

decision mentioned Price’s failure to opt-in to the nitrogen hypoxia protocol within

the thirty-day statutory period, it did so merely as an example in support of its

conclusion that Price did not act in a timely manner—both in bringing his Section

1983 claim and later in filing his First and Second Motions for Stay.

      We need not opine on how much of a role Price’s missing the thirty-day opt-

in period played in the Supreme Court’s determination to vacate the stays. The

Supreme Court made clear by pointing to various examples—including Price’s delay

in bringing his action and filing additional evidence just a few hours before his

execution—that Price waited too long to advance his claims. Accordingly, the

Supreme Court deemed Price’s claims untimely regardless of the thirty-day opt-in

period put into place by the State of Alabama.

      That the Supreme Court found Price’s claims to be untimely is now the law

of this case. See United States v. Anderson, 772 F.3d 662, 668 (11th Cir. 2014)

(appellate decisions bind subsequent proceedings in the same case “not only as to

explicit rulings, but also as to issues decided necessarily by implication on the prior

appeal.”) (citation and internal quotation marks omitted). Considering this fact, we

agree with the district court’s conclusion that it could not grant Price’s Third Motion

for Stay. Here, Price asserts that he is entitled to a stay of execution to allow the


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district-court trial proceedings to occur, since the Supreme Court did not opine on

the merits of his challenge.

      But the problem for Price is that the Supreme Court’s reasoning for denying

Price a stay applies equally to his Third Motion for Stay as it did to his First and

Second Motions. In other words, Price brings no new claims that he could not have

known about earlier. And if Price’s claims were untimely in April 2019, they are no

more timely now that an additional six weeks have passed.

      Price points to the Supreme Court’s recent grant of stay of execution in

Murphy v. Collier, No. 18A985, 2019 WL 2078111, at *1 (U.S. Mar. 28, 2019)

(mem.), to support his argument that the district court’s interpretation of the Supreme

Court’s April 12, 2019, opinion was flawed. He notes that in Murphy, the petitioner

challenged a Texas policy that had been in place for years, and the challenge came

only one month prior to the petitioner’s execution. Price also points to Justice

Kavanaugh’s concurrence, in which he stated that the one-month filing period was

sufficiently timely. Price further emphasizes that here, he sought to be executed by

nitrogen hypoxia in January 2019, more than a month prior to having been assigned

an execution date. So by implication, Price argues his claim is not untimely.

      Notwithstanding that Murphy presents circumstances and claims dissimilar to

those presented here, the holding in Murphy, is the law of the case in that case. It

does not dictate the outcome here where the Supreme Court has already spoken on


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the issue of timeliness. The fundamental problem for Price is the Supreme Court

has already found his claim to be untimely and, therefore, unworthy of a stay of

execution. And because that holding it is the law of this case, both this Court and

the district court are bound by the April 12, 2019, decision.

                                         IV.

      Although we do not agree with the district court’s reasoning for denying

Price’s Third Motion for Stay, we agree that the district court correctly concluded

that it had to deny Price’s Third Motion for Stay under the Supreme Court’s April

12, 2019, order. We therefore affirm the district court’s denial of the Third Motion

for Stay. See Devengoechea v. Bolivarian Republic of Venezuela, 889 F.3d 1213,

1220 (11th Cir. 2018) (holding that we may affirm the district court on any basis that

the record supports).

      AFFIRMED.




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