White, et al v. Brad Livingston, et al

Filing

PUBLISHED OPINION ORDER FILED. [15-70004 Affirmed ] Judge: PEH , Judge: WED , Judge: CH; denying motion to stay execution filed by Appellant Mr. Robert Charles Ladd [7829693-2]; granting motion to proceed IFP filed by Appellant Mr. Robert Charles Ladd (ISSUED AS AND FOR THE MANDATE) [7829673-2] [15-70004]

Case: 15-70004

Document: 00512918848

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Date Filed: 01/28/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-70004

United States Court of Appeals
Fifth Circuit

FILED
ROBERT CHARLES LADD,
v.

January 28, 2015
Lyle W. Cayce
Clerk
Plaintiff - Appellant

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
JAMES JONES, Senior Warden, Huntsville Unit Huntsville, Texas;
UNKNOWN EXECUTIONERS,
Defendants - Appellees

Appeal from the United States District Court
for the Southern District of Texas

Before HIGGINBOTHAM, DAVIS, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Robert Charles Ladd was convicted of capital murder and sentenced to
death. He is scheduled to be executed by the State of Texas on January 29,
2015. On January 27, 2015, after the Supreme Court granted certiorari in
Glossip v. Gross, Ladd filed a section 1983 lawsuit alleging that the state’s
method of execution would violate his Eighth and Fourteenth Amendment
rights. The district court denied his motion for a preliminary injunction or
temporary restraining order. Compelled by our court’s precedent, we AFFIRM.

Case: 15-70004

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No. 15-70004
I.
This case has a complex factual and procedural background, which we
laid out in detail in our earlier opinion affirming the district court’s denial of
habeas relief. 1 We briefly summarize here.
On August 23, 1997, Ladd was convicted of capital murder for the rape
and murder of Vicki Ann Garner. A Texas state jury imposed the death penalty
four days later. The Texas Court of Criminal Appeals affirmed Ladd’s sentence
and conviction on direct appeal in October 1999. 2 After unsuccessfully seeking
state habeas relief, he filed his first application for federal habeas relief on
January 18, 2001, raising a claim that he received ineffective assistance of
counsel because his attorney had not raised evidence of Ladd’s intellectual
disability during the punishment phase of the trial. 3 The district court denied
habeas relief and we affirmed. 4
In 2002, the Supreme Court, in Atkins v. Virginia, altered the capital
punishment landscape by holding that individuals who are intellectually
disabled are categorically ineligible for the death penalty. 5 Following this
decision, Ladd filed a second petition for state habeas relief, which was denied
without an evidentiary hearing or an opportunity for him to develop his Atkins
claim. 6 We authorized the filing of a second habeas petition in the district
court. After holding an evidentiary hearing, the district court denied Ladd’s
petition, concluding that he had failed to establish by a preponderance of the

Ladd v. Stephens, 748 F.3d 637 (5th Cir. 2014).
Id. at 640. The United States Supreme Court denied Ladd’s petition for a writ of
certiorari on April 17, 2000. Id.
3 See id. Following the Supreme Court’s recent opinion in Hall v. Florida, 134 S. Ct.
1986, 1990 (2014), we use the term “intellectual disability” where “mental retardation” had
previously been used.
4 Ladd, 748 F.3d at 640.
5 536 U.S. 304, 321 (2002).
6 Ladd, 748 F.3d at 641.
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evidence that he was intellectually disabled. 7 We affirmed. 8 The Supreme
Court denied Ladd’s petition for a writ of certiorari on October 6, 2014. 9
On January 23, 2015, the Supreme Court granted certiorari in Glossip
v. Gross, 10 a Tenth Circuit case that upheld the constitutionality of Oklahoma’s
execution process, which involves a three-drug protocol: midazolam
hydrochloride, pancuronium bromide, and potassium chloride. 11 Four days
later, on January 27, 2015, Ladd filed a complaint in federal district court 12
under 42 U.S.C. § 1983, alleging that the method of his execution violated his
rights under the Eighth and Fourteenth Amendments. 13

He sought a

temporary or preliminary injunction to stay his execution. The district court
denied the motion for injunctive relief on January 27, 2015. 14 Ladd appeals. 15
II.
A.
We review the denial of a motion for preliminary injunctive relief for
abuse of discretion. 16
Id. at 644. While the evidentiary hearing was held in 2005, the district court did not
issue its ruling until 2013.
8 Id. at 647.
9 Ladd v. Stephens, 135 S. Ct. 192 (2014) (mem.).
10 Nos. 14-7955, 14-A761, 2015 WL 302647 (U.S. Jan. 23, 2015).
11 Warner v. Gross, No. 14-6244, 2015 WL 137627, at *1-2 (10th Cir. Jan. 12, 2015).
12 Ladd’s complaint was jointly filed with Garcia Glen White, who was originally
scheduled to be executed on January 28, 2015. On January 27, 2015, the Texas Court of
Criminal Appeals stayed White’s execution pending further order. That cause, which raises
identical issues to those addressed in this case, is being adjudicated by a separate panel of
this court.
13 In Hill v. McDonough, 547 U.S. 573, 580-81 (2006), the Supreme Court held that
section 1983 was a proper vehicle for bringing a challenge to the specific manner of execution
employed by the state. This is in contrast to a challenge to the sentence of death, which can
only be brought through a habeas petition. See id. at 579-80.
14 See Mem. & Order, Docket No. 4:15-cv-00233, ECF No. 9. Also on January 27, 2015,
the Texas Court of Criminal Appeals dismissed Ladd’s second application for a writ of habeas
corpus and denied his motion for a stay of execution.
15 Concurrent with his appeal, Ladd moves in this court for a stay of execution and for
permission to proceed in forma pauperis.
16 Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014).
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To be entitled to a preliminary injunction, a movant must establish
(1) a likelihood of success on the merits; (2) a substantial threat of
irreparable injury; (3) that the threatened injury if the injunction
is denied outweighs any harm that will result if the injunction is
granted; and (4) that the grant of an injunction will not disserve
the public interest. 17
We are also mindful of the Supreme Court’s admonition that “[f]iling an action
that can proceed under [section] 1983 does not entitle the complainant to an
order staying the execution as a matter of course.” 18 Rather, “equity must be
sensitive to the State’s strong interest in enforcing its criminal judgments
without undue interference from the federal courts.” 19
B.
Following the Supreme Court’s decision in Baze v. Rees, 20 our court held
that: “[a] plaintiff can . . . succeed on an Eighth Amendment claim in this
context only if he can establish both that the state’s [execution] protocol creates
a demonstrated risk of severe pain and that that risk is substantial when
compared to the known and available alternatives.” 21 Ladd argues that he is
likely to succeed on his claim that there is a substantial risk that Texas’s
execution protocol will cause him severe pain, in violation of the Eighth
Amendment. In light of our court’s binding precedent, we cannot agree.
We have repeatedly upheld against Eighth Amendment challenge
Texas’s Execution Procedure of July 9, 2012, which involves the use of a single
drug, pentobarbital. 22

The execution protocol at issue in those cases is

Id. at 452 (citing Sells v. Livingston, 750 F.3d 478, 480 (5th Cir. 2014)). This
standard is essentially the same as the framework for deciding whether to grant a stay of
execution. See Adams v. Thaler, 689 F.3d 312, 318 (5th Cir. 2012).
18 Hill, 547 U.S. at 583-84.
19 Id.
20 553 U.S. 35, 61 (2008) (plurality op.).
21 Whitaker v. Livingston, 732 F.3d 465, 468 (5th Cir. 2013).
22 See, e.g., Trottie v. Livingston, 766 F.3d 450, 452-53 (5th Cir. 2014); Campbell v.
Livingston, 567 F. App’x 287, 289 (5th Cir. 2014) (unpublished); Sells v. Livingston, 750 F.3d
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essentially the same as that the State plans to use here: they involve the use
of an unexpired 5 gram dose of pentobarbital obtained from a licensed
compounding pharmacy, which has been tested by an independent laboratory
and found to have a potency of greater than 100% and to be free of
contaminants. 23

Under our circuit’s rule of orderliness, these decisions,

involving the application of essentially the same facts to the same law, control
our own, and require us to deny the motion for injunctive relief. 24
In an attempt to distinguish this precedent, Ladd raises two arguments.
First, he argues that compounded drugs are unregulated and subject to quality
and efficacy problems. This argument, however, is essentially speculative, and
the Supreme Court has held that “speculation cannot substitute for evidence
that the use of the drug is ‘sure or very likely to cause serious illness and
needless suffering.’” 25 Rather, to succeed, our precedent requires Ladd to “offer
some proof that the state’s own process – that its choice of pharmacy, that its
lab results, that the training of its executioners, and so forth, are suspect.” 26
“[H]ypothetical possibilities that the process was defective” are not enough for
a stay, 27 and here, Ladd puts forth only hypotheticals. Second, Ladd points to
a series of executions conducted in other states, using multi-drug protocols not
at issue here, which caused or appeared to cause the prisoner severe pain. We
do not diminish the gravity of these incidents – as Justice Sotomayor,

478, 480-81 (5th Cir. 2014); Sells v. Livingston, 561 F. App’x 342, 344-45 (5th Cir. 2014)
(unpublished); Thorson v. Epps, 701 F.3d 444, 447 n.3 (5th Cir. 2012) (holding, in a decision
addressing Mississippi’s execution process, that Texas’s one-drug protocol is acceptable under
Baze).
23 See Trottie, 766 F.3d at 452; Def.s’ Opp’n Temporary Injunctive Relief & Mot. TRO
Seeking Stay Execution (“Defs’ Opp’n”), at 2.
24 See United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014).
25 Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010) (mem.) (quoting Baze, 553 U.S. at
50 (plurality op.)).
26 Whitaker, 732 F.3d at 468.
27 Id.

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dissenting from the denial of a stay of execution earlier this month, wrote, “the
Eighth Amendment guarantees that no one should be subject to an execution
that causes searing, unnecessary pain before death.” 28

None of these

executions have apparently used a single-drug pentobarbital injection from a
compounded pharmacy which, as the State points out in its brief, appears to
have been used without significant incident for the last fourteen executions
carried out by the State. 29 Ladd does point to the fact that pentobarbital was
used as part of a three-drug cocktail in at least one of the out-of-state
executions that appeared to cause the prisoner pain, and that an expert stated
that the prisoner’s adverse reaction was “consistent with contaminated
pentobarbital sodium injection.” Given the different protocols in use, as well
as the fact that the State has put forward evidence indicating that the
pentobarbital that will be used is not contaminated, this evidence is not
sufficient to demonstrate that “the use of the drug is ‘sure or very likely to cause
serious illness and needless suffering.’” 30
III.
Against this backdrop, Ladd nonetheless argues that we should stay his
execution because of the Supreme Court’s grant of certiorari in Glossip. That
case addresses an Eighth Amendment challenge to Oklahoma’s three-drug
protocol. None of the three questions presented in that petition are directly on
point with this case, however. The first question looks to whether a three-drug
execution protocol is constitutionally permissible, an issue not relevant when
the state uses a one-drug protocol. The second question asks whether the Baze

Warner v. Gross, 135 S. Ct. 824 (2014) (mem.) (Sotomayor, J., dissenting from denial
of stay of execution).
29 Press reports indicate that one prisoner said that “[i]t does kind of burn. Goodbye,”
as the pentobarbital took effect. The media report indicates that all movement stopped
“[w]ithin seconds.” Defs.’ Opp’n at 20.
30 Landrigan, 131 S. Ct. at 445 (quoting Baze, 553 U.S. at 50.
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standard applies when states are not using a protocol “substantially similar”
to the one that the Supreme Court considered in Baze. Our court has already
held that the Texas execution protocol is substantially similar to the Baze
standard. 31

Finally, the third question asks whether “a prisoner [must]

establish the availability of an alternative drug formula even if the state’s
lethal-injection protocol, as properly administered, will violate the Eighth
Amendment.” 32
administration

We have previously held, however, that the proper
of

the

Texas

procedure

comports

with

the

Eighth

Amendment. 33
In any event, whatever our speculation about how the Supreme Court
may alter the law in the future, we are bound to follow our precedent as it
exists today. 34 This request for a stay is best made to the Supreme Court, the
body most aware of Glossip’s potential.
IV.
We AFFIRM the district court’s order denying the motion for temporary
injunctive relief. We DENY Ladd’s motion for stay of execution. We GRANT
Ladd’s motion to proceed in forma pauperis.

See Raby v. Livingston, 600 F.3d 552, 558-60 (5th Cir. 2010); see also Thorson v.
Epps, 701 F.3d 444, 447 & n.3 (5th Cir. 2012).
32 Pet. Writ Certiorari, at i., Warner v. Gross, No. 14-7955 (U.S. 2015).
33 See, e.g., Sells v. Livingston, 750 F.3d 478, 480-81 (5th Cir. 2014); see also Raby, 600
F.3d at 560 (concluded that plaintiff “has failed to establish that the Texas lethal injection
protocol creates a demonstrated risk of severe pain”).
34 See Wicker v. McCotter, 798 F.2d 155, 157-58 (5th Cir. 1986) (holding that,
notwithstanding the fact that the Supreme Court had granted a writ of certiorari in a related
case, “we must follow our circuit’s precedents and deny . . . a stay of execution”).
31

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