J. W. LEDFORD, JR., Plaintiff-Appellant,
COMMISSIONER, GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, OTHER UNKNOWN EMPLOYEES AND AGENTS, Defendants-Appellees.
from the United States District Court for the Northern
District of Georgia
ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON,
WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, and JILL PRYOR,
Circuit Judges. [*]
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.
CARNES, Chief Judge, concurring in the denial of the petition
for initial hearing en banc:
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
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.
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
Circuit Judge, specially concurring in the denial of the
petition for initial hearing en banc:
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
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.
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).
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
LEDFORD, JR., Plaintiff - Appellant, versus
GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, OTHER UNKNOWN
EMPLOYEES AND AGENTS, Defendants - Appellees.
from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:17-cv-01705-SCJ
ED CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.
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
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
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.
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).
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).
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 ...