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Ledford v. Commissioner, Georgia Department of Corrections

United States Court of Appeals, Eleventh Circuit

May 16, 2017

J. W. LEDFORD, JR., Plaintiff-Appellant,
v.
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, OTHER UNKNOWN EMPLOYEES AND AGENTS, Defendants-Appellees.

         Appeal from the United States District Court for the Northern District of Georgia

          Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, and JILL PRYOR, Circuit Judges. [*]

         BY THE COURT:

         A petition for initial hearing en banc having been filed, a judge in active service having requested a poll on the petition, and a majority of the judges in active service having voted against it, the petition is DENIED. The motion for a stay of execution is DENIED and the State's motion to file a response to the plaintiff-appellant's sur-reply is DENIED AS MOOT.

          ED CARNES, Chief Judge, concurring in the denial of the petition for initial hearing en banc:

         Concurring in the denial of the motion for hearing en banc, I write separately to point out a different interpretation of the record than that of two of my colleagues, which bears on the timeliness issue.

         Judge Wilson's dissenting opinion states that what Ledford alleges is that "he has a 'unique medical condition, ' and he alleges that the condition arose within the past two years." Wilson Dissent at 25 n.3. This, he adds, is not like the claim in Gissendaner that relied on conditions that had not changed in the past two years. Id. But in the complaint he filed in the district court, Ledford alleged that he has been taking gabapentin for over a decade and that the problem is the brain becomes less responsive to other drugs over a prolonged period of time. See Complaint at 2 ("His long-term exposure to this medication has changed the chemistry of his brain . . . ."); id. at 9 ("When taken for an extended period of time, gabapentin will alter a person's brain chemistry . . . ."); id. at 10 ("Those receptors shaped by long-term administration of gabapentin become less responsive to pentobarbital."); id. at 12 (Dr. Bergese's opinion based on gabapentin having been "administered to a person . . . for a considerable period of time"); id. at 15 (Dr. Zivot's opinion based on Ledford's "prolonged exposure to gabapentin"); id. at 16 ("Accordingly, because of his decade of gabapentin treatments . . ."); id. (alleging that the objectively intolerable risk arises from "his decade-long use of gabapentin"). The complaint could not, and does not, allege that the decade-long use of gabapentin arose within the last two years. It arose over more than a decade, far outside the two year statute of limitations.

         Judge Jill Pryor's dissenting opinion states that Ledford's dosage of gabapentin has been increasing for a number of years, and his long term exposure to it has altered his brain chemistry so that using pentobarbital is very likely to cause him to experience unbearable pain and suffering. But Ledford never alleged that the risk of gabapentin diminishing the effect of pentobarbital arose only in the last two years before he filed the complaint. We cannot fault district courts for failing to foresee theories not alleged before them.

          HULL, Circuit Judge, specially concurring in the denial of the petition for initial hearing en banc:

         I concur for the reasons set forth in the assigned panel's published order, dated May 15, 2017, attached hereto as Exhibit A, which denies Mr. Ledford's belated motion for a stay of execution. Among other reasons, Mr. Ledford's 42 U.S.C. § 1983 claims are barred by the statute of limitations and, in any event, as a matter of equitable considerations, are untimely filed five days before his execution.

         For example, Mr. Ledford's own complaint alleges he has been taking escalating doses of gabapentin for approximately a decade, and in March 2013 Georgia began using a single dose of five grams of pentobarbital in its lethal injection protocol. Thus, Mr. Ledford's § 1983 claims, which are largely about his prolonged use of gabapentin for ten years and the interaction of gabapentin and pentobarbital, accrued at least by 2013 and his § 1983 claims were not filed until May 11, 2017, which is two years too late.

         In any event, as discussed in the panel opinion, Mr. Ledford has not shown a substantial risk of severe pain as required by Glossip v. Gross, 576 U.S. __, 135 S.Ct. 2726 (2015), or a substantial likelihood of success on the merits of his claims to warrant a stay of execution. I also concur in the denial of Mr. Ledford's petition for the reasons laid out in the majority opinions in Boyd v. Warden, Holman Correctional Facility, __ F.3d __, No. 15-14971, 2017 WL 1856071 (May 9, 2017), and Arthur v. Comm'r, Ala. Dep't of Corr., 840 F.3d 1268 (11th Cir. 2016), cert. denied sub. nom. Arthur v. Dunn, __ U.S. __, 137 S.Ct. 725 (2017).

         EXHIBIT A

         IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

         Non-Argument Calendar

         J. W. LEDFORD, JR., Plaintiff - Appellant, versus

         COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, OTHER UNKNOWN EMPLOYEES AND AGENTS, Defendants - Appellees.

         No. 17-12167

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:17-cv-01705-SCJ

         Before ED CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.

          HULL, Circuit Judge:

         Under a sentence of death, J.W. Ledford, Jr. has his execution scheduled for Tuesday, May 16, 2017, at 7:00 p.m. On Thursday, May 11, 2017, a mere five days before his execution, Ledford challenged Georgia's method of his execution by filing a civil complaint under 42 U.S.C. § 1983. Since 2013, Georgia's execution protocol has provided for lethal injection by the administration of a single drug: five grams (5, 000 milligrams) of compounded pentobarbital.

         After briefing, the district court denied Ledford's motion for a temporary restraining order and dismissed Ledford's § 1983 complaint. The district court determined, inter alia, (1) that Ledford's § 1983 claims are time barred; (2) that, in any event, Ledford had not shown a substantial likelihood of success on the merits of his § 1983 claims; and (3) that, alternatively, Ledford had not carried his burden to demonstrate that equitable relief, such as a stay, should be granted at this late hour.

         On May 12, 2017, Ledford filed a Notice of Appeal. On May 15, 2017, at 11:00 a.m., Ledford filed an "Emergency Motion for an Order Staying the Execution." After careful review, we deny Ledford's motion.

         I. BACKGROUND

         In 1992, Ledford murdered his 73-year-old neighbor, Dr. Harry Johnston, Jr., robbed Dr. Johnston's wife, and burglarized the Johnstons' home, tying up Mrs. Johnston with a rope. Ledford v. Warden, Ga. Diagnostic & Classification Prison, 818 F.3d 600, 608-09 (11th Cir. 2016). A Georgia jury convicted Ledford of murder, armed robbery, burglary, and kidnapping, and "unanimously recommended imposition of the death penalty." Id. at 614. The Supreme Court of Georgia affirmed Ledford's conviction and sentence on direct appeal. Ledford v. State, 439 S.E.2d 917 (Ga. 1994).

         After the United States Supreme Court denied Ledford's petition for certiorari, Ledford v. Georgia, 513 U.S. 1085, 115 S.Ct. 740 (1995), Ledford sought state habeas corpus relief in the Superior Court of Butts County, Georgia. Ledford, 818 F.3d at 615. That petition was denied on July 27, 1999, and the Supreme Court of Georgia denied him a certificate of probable cause to appeal in 2001. Id. at 620-21. The United States Supreme Court thereafter again denied certiorari. Ledford v. Turpin, 534 U.S. 1138, 122 S.Ct. 1086 (2002).

         Ledford then timely filed a 28 U.S.C. § 2254 petition in the federal district court, in which he pled multiple claims. On March 19, 2008, the district court denied Ledford's § 2254 petition. Ledford, 818 F.3d at 628. On February 27, 2014, the district court denied reconsideration. Id. at 631. This Court affirmed the denial of Ledford's § 2254 petition. Id. at 608, 651. This Court also denied Ledford's petition for rehearing en banc. Ledford v. Warden, Ga. Diagnostic & Classification Prison, No. 14-15650 (11th Cir. May 18, 2016). The United States Supreme Court denied certiorari for a third time. Ledford v. Sellers, __ U.S. __, __ S.Ct. __, No. 16-6444, 2017 WL ...


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