Wilson (Death Penalty) v. Upton
ORDER DENYING 25 Motion for Leave to Conduct Discovery and Authorization of Necessary Expert Services and instructs the parties to comply with the March 4, 2011 scheduling Order for future motions and briefs. Ordered by Judge Marc Thomas Treadwell on 7/12/2011. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MARION WILSON, JR.,
CARL HUMPHREY, Warden,
CIVIL ACTION NO: 5:10-CV-489 (MTT)
Pending before the Court is Petitioner Marion Wilson, Jr.’s Motion for Leave to
Conduct Discovery and Authorization and Payment of Necessary Expert Services.
According to the Georgia Supreme Court, the evidence at Wilson’s trial
established the following facts:
[O]n the night of March 28, 1996, the victim, Donovan Corey Parks,
entered a local Wal-Mart to purchase cat food, leaving his 1992 Acura
Vigor parked in the fire lane directly in front of the store. Witnesses
observed Wilson and Robert Earl Butts standing behind Parks in one of
the store’s checkout lines and, shortly thereafter, speaking with Parks
beside his automobile. A witness overheard Butts ask Parks for a ride, and
several witnesses observed Wilson and Butts entering Parks’s automobile,
Butts in the front passenger seat and Wilson in the back seat. Minutes
later, Parks’s body was discovered lying face down on a residential street.
Nearby residents testified to hearing a loud noise they had assumed to be
a backfiring engine and to seeing the headlights of a vehicle driving from
the scene. On the night of the murder, law enforcement officers took
inventory of the vehicles in the Wal-Mart parking lot. Butts’s automobile
was among the vehicles remaining in the lot overnight. Based upon the
statements of witnesses at the Wal-Mart, Wilson was arrested. A search of
Wilson’s residence yielded a sawed-off shotgun loaded with the type of
ammunition used to kill Parks, three notebooks of handwritten gang
“creeds,” secret alphabets, symbols, and lexicons, and a photo of a young
man displaying a gang hand sign.
Wilson gave several statements to law enforcement officers and rode in
an automobile with officers indicating stops he and Butts had made in the
victim’s automobile after the murder. According to Wilson’s statements,
Butts had pulled out a sawed-off shotgun, had ordered Parks to drive to
and then stop on Felton Drive, had ordered Parks to exit the automobile
and lie on the ground, and had shot Parks once in the back of the head.
Wilson and Butts then drove the victim’s automobile to Gray where they
stopped to purchase gasoline. Wilson, who was wearing gloves, was
observed by witnesses and videotaped by a security camera inside the
service station. Wilson and Butts then drove to Atlanta where they
contacted Wilson’s cousin in an unsuccessful effort to locate a “chop
shop” for disposal of the victim’s automobile. Wilson and Butts purchased
two gasoline cans at a convenience store in Atlanta and drove to Macon
where the victim’s automobile was set on fire. Butts then called his uncle
and arranged a ride back to the Milledgeville Wal-Mart where Butts and
Wilson retrieved Butts’s automobile.
Wilson v. State, 271 Ga. 811, 812-13, 525 S.E.2d 339, 343 (1999), overruled in part by
O’Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).1
In his direct appeal, Wilson claimed that “the trial court erred by failing to provide for opening
statements at the beginning of the sentencing phase.” Wilson, 271 Ga. at 818, 525 S.E.2d at
347. The Georgia Supreme Court rejected this claim, holding that “[a]llowing opening
statements at the beginning of the sentencing phase is the better practice, but it is not required.”
Id. However, in O’Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008), the Court overruled
Wilson’s holding that the trial judge had discretion to determine whether a defendant could
make an opening statement in the sentencing phase of a trial; rather “a death penalty defendant
is entitled to make an opening statement in the sentencing phase.” O’Kelley, 284 Ga. at 768,
670 S.E.2d at 398.
On May 29, 1996, a Baldwin County Grand Jury indicted Wilson for malice
murder, felony murder, armed robbery, hijacking a motor vehicle, possession of a
firearm during the commission of a crime, and possession of a sawed-off shotgun. Id. at
812 n.1, 525 S.E.2d at 343 n.1. A jury found him guilty of all charges, and on November
7, 1997, the jury recommended the death sentence for malice murder. Id.
Wilson moved for a new trial on December 3, 1997, and the trial court denied the
motion, as amended, on December 18, 1997. Id.
Wilson filed a notice of appeal, and the Georgia Supreme Court affirmed his
conviction and sentence on November 1, 1999. Id. at 811-24, 525 S.E.2d at 342-51.
The Georgia Supreme Court denied Wilson’s motion for reconsideration on December
20, 1999. (Doc. 1, at 3). Wilson filed a petition for writ of certiorari in the United States
Supreme Court, which was denied on October 2, 2000. (Doc. 1, at 3).
Wilson filed a Petition for Writ of Habeas Corpus in the Superior Court of Butts
County, Georgia on January 19, 2001. (Doc. 1, at 3). After an evidentiary hearing, the
court entered its order denying the petition in its entirety on December 1, 2008. (Doc. 1,
On January 30, 2009, Wilson filed an Application for a Certificate of Probable
Cause to Appeal from the denial of habeas corpus relief. (Doc. 1, at 3). The Georgia
Supreme Court denied this application on May 3, 2010. (Doc. 1, at 3).
On September 30, 2010, Wilson filed a Petition for Writ of Certiorari in the United
States Supreme Court, which the Court denied on December 6, 2010. (Doc. 1, at 3).
On December 17, 2010, Wilson filed his Petition for Writ of Habeas Corpus by a
Person in State Custody in this Court.
STANDARDS GOVERNING DISCOVERY AND APPOINTMENT OF EXPERTS
IN 28 U.S.C. § 2254 ACTIONS
Requests for Discovery
“A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled
to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S. 899, 904
(1997). Rule 6 of the Rules Governing Section 2254 Cases (“Rule 6”) provides that “[a]
judge may, for good cause, authorize a party to conduct discovery under the Federal
Rules of Civil Procedure and may limit the extent of discovery.” 28 U.S.C. § 2254 Rule
6. Additionally, “[a] party requesting discovery must provide reasons for the request.”
Id. “Rule 6 is meant to be ‘consistent’ with” Harris v. Nelson, 394 U.S. 286 (1969).
Bracy, 520 U.S. at 909; see also Habeas Corpus R. 6 advisory committee’s note. In
Harris, the Supreme Court held that a petitioner establishes good cause for discovery if
“specific allegations before the court show reason to believe that [he] may, if the facts
are fully developed, be able to demonstrate that he is confined illegally and is therefore
entitled to relief.” Harris, 394 U.S. at 300. However, “good cause for discovery cannot
arise from mere speculation” and “discovery cannot be ordered on the basis of pure
hypothesis.” Arthur v. Allen, 459 F.3d 1310, 1311 (11th Cir. 2006).
In Isaacs v. Head, 300 F.3d 1232 (11th Cir. 2002), the Eleventh Circuit held that
with the enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), “Congress modified the discretion afforded to the district court and erected
additional barriers limiting a habeas petitioner’s right to discovery or an evidentiary
hearing.” Id. at 1248-49. The Court found that Isaacs had not been “reasonably
diligent in trying to develop the factual record while in state court,” and that the district
court, therefore, correctly denied his requests for both discovery and an evidentiary
hearing. Id. at 1249. Specifically in relation to Isaacs’ request for discovery, the court
held that Isaacs
does not explain why the discovery that he seeks now is any different from
the discovery that was available to him in state courts. Under these
circumstances, we conclude that the district court properly denied Isaacs’
request to conduct additional discovery . . . because he neither exercised
sufficient diligence to satisfy the requirements of § 2254 (e)(2) nor showed
“good cause” as required by Rule 6(a).
Id. at 1250.
In Crawford v. Head, 311 F.3d 1288 (11th Cir. 2002), the Eleventh Circuit again
addressed the issue of whether a habeas petitioner should be granted leave to conduct
discovery. During state habeas proceedings, Crawford had obtained a Georgia Bureau
of Investigation (“GBI”) report that included information about various stains on a
mattress, blankets, and clothing. One day before the evidentiary hearing in the state
habeas corpus court, Crawford moved for independent serological testing on these
items. The state court denied the motion as untimely. Id. at 1328-29.
In his federal habeas action, Crawford asked the district court to order serological
testing. The Eleventh Circuit held that the district court correctly denied discovery
because “Crawford failed to exercise sufficient diligence in seeking testing of items
mentioned in the GBI report while in state court.” Id. at 1329. The Court held that “in
light of both § 2254(e)(2) and Rule 6(a), we conclude that Crawford was not entitled to
have the items from the GBI report tested after bringing his case in the federal courts.”
Thus, a habeas petitioner is entitled to discovery upon a showing of good cause
and of diligence in pursing the claim for which discovery is sought.2 Moreover, the
Supreme Court’s recent decision in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), likely
places additional restrictions on discovery in § 2254 cases. In Pinholster, the Court
made clear that, “[a]lthough state prisoners may sometimes submit new evidence in
federal court, AEDPA’s statutory scheme is designed to strongly discourage them from
doing so.” Id. at 1401. The Court addressed “whether review under § 2254(d)(1)
permits consideration of evidence introduced in an evidentiary hearing before the
federal habeas court.” Id. at 1398. The Court held that when the state court has
decided an issue on the merits, “review under § 2254(d)(1) is limited to the record that
was before the state court that adjudicated the claim on the merits.” Id. Likewise,
based on the plain language in the statute itself, review under § 2254(d)(2) is limited to
“evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2); Pinholster,
131 S. Ct. at 1400 n.7.
If the petitioner has not been diligent in developing the factual basis of his claim in the state
courts, he can still obtain discovery if he meets the stringent requirements of § 2254(e)(2)(A)
and (B). Wilson does not maintain that he can meet these requirements.
While Pinholster addressed evidentiary hearings in the district courts, courts
have found that “its linkage to . . . discovery . . . is unquestionably present.” Coddington
v. Cullen, No. CIV S-01-1290 KJM GGH DP, 2011 WL 2118855, at *1 (E.D. Cal. May
27, 2011) (explaining that “the extent of permissible discovery in a habeas corpus
action, seemingly once settled, has been upset by the AEDPA ruling of . . . Pinholster”).
After Pinholster, if a state court decides a particular claim on the merits, district courts
are not authorized to hold an evidentiary hearing in which new evidence is introduced to
support that claim. It logically follows that conducting discovery on that claim would be
futile, and this has been the holding of at least one district:
[A]ny new evidence unearthed during discovery in federal court and “later
introduced in federal court is irrelevant to § 2254(d)(1) [and (2)] review.”
In other words, if the state trial court adjudicated . . . Petitioner’s [claim] on
the merits, such that Petitioner must satisfy the terms of § 2254(d), “good
cause” does not exist for the discovery Petitioner seeks . . . because this
Court may look only to the state court record in applying § 2254(d).
Hurst v. Branker, No. 1:10 CV 725, 2011 WL 2149470, at *8 (M.D.N.C. June 1, 2011)
(quoting Pinholster, 131 S. Ct. at 1400)).
The Eleventh Circuit has not yet addressed the effect of Pinholster on § 2254
discovery claims, and the parties did not address Pinholster in their briefs. As
discussed below, Wilson has not met Rule 6’s good cause and diligence standard, and
he therefore is not entitled to conduct discovery. Accordingly, the Court need not reach
the issue of whether Pinholster further limits discovery in § 2254 proceedings.
Requests for financial assistance
To the extent that Wilson is seeking financial assistance for investigators or
experts, his requests are governed by 18 U.S.C. § 3599(f), which provides:
Upon a finding that investigative, expert, or other services are reasonably
necessary for the representation of the defendant, whether in connection
with issues relating to guilt or the sentence, the court may authorize the
defendant’s attorneys to obtain such services on behalf of the defendant
and, if so authorized, shall order the payment of fees and expenses
therefor under subsection (g).
Wilson has not cited, and the Court has not found, any Eleventh Circuit cases directly
interpreting this statute. However, other circuits have held that habeas corpus
petitioners are entitled to experts and investigators “only upon a showing of reasonable
necessity.” Rojem v. Gibson, 245 F.3d 1130, 1139 (10th Cir. 2001). Of course, if a
petitioner has not shown good cause for the discovery he requests, he would not be
entitled to an investigator to conduct the discovery or any experts to interpret the results
of the discovery.
WILSON’S SPECIFIC DISCOVERY REQUESTS
Discovery related to Jon Philip Carr’s character and crimes as well as
funds for an investigator to conduct such an investigation
Wilson was represented by Tom O’Donnell and Jon Phillip Carr during his trial.3
(Resp’t Ex. 90, at 11; Doc. 18-4). O’Donnell was lead counsel and Carr’s “role was to
assist him.” (Resp’t Ex. 54, at 206, 232; Doc. 12-6). O’Donnell remained lead counsel
throughout the trial, but on direct appeal, O’Donnell withdrew because he took a
position as Special Assistant Attorney General working with the Department of Family
and Children Services. (Rep’t Ex. 54, at 229-30; Doc. 12-6). Carr and John Bradley
represented Wilson during his direct appeal. (Resp’t Ex. 54, at 230; Doc. 12-6).
James M. Setters was originally appointed to assist O’Donnell. However, he withdrew for
health reasons and Carr was appointed on May 27, 1997. (Resp’t Ex. 54, at 232; Doc. 12-6;
Resp’t Ex. 55, at 441-42; Doc. 12-8).
In his state habeas corpus petition, Wilson raised “numerous claims of ineffective
assistance of trial and appellate counsel.” (Resp’t Ex. 90, at 10; Doc. 18-4). The Butts
County Superior Court adjudicated these claims on the merits and ruled against Wilson
in an order entered December 1, 2008. (Resp’t Ex. 90, at 10-40; Doc. 18-4).
Wilson now alleges that “[t]he Georgia Supreme Court’s denial of Mr. Wilson’s
ineffective assistance claims relies on the word of one man now known to be a child
molester and rapist.”4 (Doc. 25-1, at 7). According to Wilson, Carr was arrested on
June 25, 2006, and accused of indecent sexual activity with a thirteen year old girl and a
fourteen year old girl who had escaped from a halfway house for troubled youth in
Baldwin County. (Doc. 25-2, 25-3). In March, 2007, Carr was sentenced to serve
twenty-five years in prison for four counts of child molestation. (Doc. 25-5).
Wilson maintains that the state court gave Carr’s “testimony a great deal of
weight, [and] rel[ied] on Carr’s testimony to find that trial counsel fell within the
reasonable range of effective assistance.” (Doc. 25-1, at 7). According to Wilson,
“post-2005 events reveal this was unreasonable; Carr’s word is of little to no value.”
(Doc 25-1, at 7). Wilson argues that “[b]ecause an investigation may prove that the
Georgia Supreme Court’s findings of fact and law5 are unreasonable and contrary to
The Georgia Supreme Court did not directly address this issue. The Butts County Superior
Court held an evidentiary hearing, reviewed post-hearing briefs, and ruled on the merits
regarding the various claims of ineffective assistance of counsel. (Resp’t Ex. 90, at 10-40; Doc.
18-4). The Georgia Supreme Court subsequently denied Petitioner’s Application for a
Certificate of Probable Cause to appeal the denial of habeas corpus. (Resp’t Ex. 95; Doc. 18-9).
Again, the Georgia Supreme Court made no findings of fact and law on the issue of ineffective
assistance of counsel.
clear Court precedent, [he should be granted] leave to conduct discovery related to
Carr’s character and crimes, including funding to hire an investigator in furtherance
thereof.” (Doc. 25-1, at 12).
Although Wilson does not quite come out and say it, his point is that Carr’s
credibility can now be impeached with his criminal misconduct. Putting aside the
question of whether Carr’s convictions will be admissible in any proceeding in this
Court, it is apparent that Wilson has not established good cause to conduct discovery
regarding Carr’s crimes. Wilson has already documented that Carr is a convicted child
molester, and the Georgia Department of Corrections website confirms that he is
serving a twenty-five year sentence for four counts of child molestation. (Doc. 25-5).
Respondent does not contest this, and the Court can take judicial notice of these facts.
See generally Fed. R. Evid. 201. The Court also notes that Carr’s license to practice
law was suspended June 4, 2007, “pending the termination of the appeal of his criminal
convictions.” In re Carr, 282 Ga. 138, 646 S.E.2d 252, 253 (2007). Give that there is
no indication of any pending appeal by Carr, the Court is willing to assume that Carr will,
at some point, be disbarred. In short, and in the vernacular, Wilson has all the dirt on
Carr he reasonably could expect to use. There is no good cause to find more.
Additionally, Wilson has not “explain[ed] why the discovery that he seeks now is
any different from the discovery that was available to him in state courts.” Isaacs, 300
F.3d at 1250. Wilson’s state habeas action was still pending in the Butts County
Superior Court when Carr was arrested and charged with child molestation in June
2006 and when he was convicted in March 2007. Although the evidentiary hearing was
held in February 2005, the superior court did not enter its Order denying Wilson’s
Petition for Writ of Habeas Corpus until December 1, 2008. (Resp’t Ex. 54-55, at 90;
Doc. 12-5, 12-6, 12.-7, 12-8, 18-4). Thus, Wilson had nearly three years after Carr’s
arrest and over eighteen months after Carr’s conviction, to raise the issue of Carr’s
credibility with the court considering whether Carr’s representation was ineffective. Yet,
he never informed the Court of Carr’s arrest6 or conviction, and never sought the
discovery that he now requests. Although Wilson now claims that he requires
discovery “to determine the truth of what Carr did (or more likely, did not do) during his
purported ‘mitigation investigation,’” he should have requested that discovery while his
action was pending in the state habeas court.
Because Petitioner was not “reasonably diligent in trying to develop the factual
record while in state court” and because he has not established good cause, the Court
denies his motion to conduct this discovery now. Isaacs, 300 F.3d at 1249.7
Expert discovery regarding the proportionality of Wilson’s death sentence
O.C.G.A. §17-10-35(c)(3) requires the Georgia Supreme Court to determine
“[w]hether the sentence of death is excessive or disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.” Wilson contends that
the Georgia Supreme Court conducted only a cursory review when it found that
Two days after Carr’s arrest, Wilson submitted a Notice of Supplemental Authority in which he
brought to the court’s attention a recently-decided Supreme Court case that he maintained
supported his ineffectiveness claim. (Resp’t Ex. 89; Doc. 18-3). Wilson made no mention of
Carr’s arrest in this document.
For these same reasons, the Court finds that investigative services are not reasonably
necessary. 18 U.S.C. § 3599(f).
“considering both the crime and defendant, . . . the sentence of death was neither
excessive nor disproportionate to the penalties imposed in similar cases.” Wilson, 271
Ga. at 823-24, 525 S.E.2d at 351. Wilson claims this finding is “based on unreasonable
determinations of fact, is itself an unreasonable determination of fact and is contrary to
and/or an unreasonable application of U.S. Supreme Court precedent.” (Doc 25-1, at
To support his argument, Wilson seeks “permission to hire an investigator to
gather Georgia death penalty case data for cases decided both before and after the
Georgia Supreme Court’s decision on direct appeal, and to hire Professor Raymond
Paternoster to conduct a statistical analysis of this data.” (Doc. 25-1, at 15-16). Wilson
also seeks authorization to retain David Fassler M.D., a University of Vermont Clinical
Professor who is Board Certified in child and adolescent psychiatry, to “provide
evidence regarding developments in the field of developmental psychiatry since the
state habeas proceedings in 2005.” (Doc. 25-1, at 17). Wilson argues that “[t]his
evidence will be used to support [his] claim that the state court’s determination
regarding proportionality was an unreasonable determination of fact and was contrary to
and an unreasonable application of” Supreme Court precedent. (Doc. 25-1, at 17).
However, in Pulley v. Harris, 465 U.S. 37 (1984), the United States Supreme
Court held that the Constitution does not require a proportionality review in any form
and made clear that its decision in Gregg v. Georgia, 428 U.S. 153 (1976) should not be
read to require such a review. Pulley, 465 U.S. at 46. The Court explained that while
Gregg “emphasiz[ed] the importance of mandatory appellate review under the Georgia
statute, [it] did not hold that without comparative proportionality review the statute would
be unconstitutional.” Id. at 50 (citing Zant v. Stephens, 462 U.S. 862 (1983)). Indeed,
while the Court explained that “[p]roportionality review [is] considered to be an additional
safeguard against arbitrarily imposed death sentences,” it also noted that “comparative
review [has never been] constitutionally required.” Id; see also McClesky v. Kemp, 481
U.S. 279, 306-307 (1987) (holding that “absent a showing that the Georgia capital
punishment system operates in an arbitrary and capricious manner, [the petitioner]
could not prove a constitutional violation by demonstrating that other defendants who
may be similarly situated did not receive the death penalty”).
The Eleventh Circuit has also addressed the role of state requirements of
proportionality in federal habeas proceedings:
A federal habeas court should not undertake a review of the state
supreme court’s proportionality review and, in effect, “get out the record”
to see if the state court’s finding of fact, their conclusion based on a review
of similar cases, was supported by the “evidence” in the similar cases. To
do so would thrust the federal judicia into the substantive policy making
area of the state. It is the state’s responsibility to determine the procedure
to be used, if any, in sentencing a criminal to death.
Moore v. Balkcom, 716 F.2d 1511, 1518 (11th Cir. 1983). Moreover, the Eleventh
Circuit has specifically rejected the argument that federal law requires state courts to
“make an explicit, detailed account of their comparison.” Lindsey v. Smith, 820 F.2d
1137, 1154 (11th Cir. 1987). The Eleventh Circuit could not have been any clearer:
The Constitution does not require a proportionality review. And we refuse
to mandate as a matter of federal constitutional law that where, as here,
state law requires such review, courts must make an explicit, detailed
account of their comparisons. Based on their own past experience in
reviewing capital punishment cases, state appellate courts “can rationally
distinguish between those individuals for whom the death penalty is an
appropriate sanction and those for whom it is not,” without listing in their
opinions the facts that did or did not justify the imposition of the death
penalty in the prior cases.
Id. (internal citations omitted).
Given that proportionality review is not required by the Constitution or any other
federal law, and because Eleventh Circuit precedent forbids a case-by-case comparison
of the review undertaken by the Georgia Supreme Court, Wilson’s request for discovery
on this issue is denied.
While not necessary to the Court’s decision regarding discovery on this issue, the
Court also notes that Wilson seeks to discover and present evidence regarding Georgia
cases decided after the Georgia Supreme Court issued its opinion in this case.
Additionally, he wants his expert to provide evidence regarding new (post- 2005)
developments in the field of developmental psychiatry. As discussed above, the
Supreme Court made clear in Pinholster that the record which the district court can
review under 28 U.S.C. § 2254(d)(1) and (2) is limited to the record that was before the
state court. Thus, developments in both case law and developmental psychiatry that
occurred after the state courts’ decisions would be irrelevant.
Investigation and discovery regarding Georgia’s supply of sodium
Wilson argues that his execution is barred by the Eighth Amendment because of
Georgia’s use of suspect sodium thiopental.8 Wilson claims that Hospira, Inc., the only
“legitimate supplier” of sodium thiopental, stopped manufacturing the drug in January
2011. (Doc. 25-1, at 19; Doc. 25-8). The Georgia Department of Corrections then
acquired sodium thiopental from Dream Pharma Ltd. of London, England, a company
that is not authorized to export this drug into the United States. (Doc. 25-1, at 20; Doc.
25-8). There is evidence that this supply of sodium thiopental was actually
manufactured in 2006 by a now-defunct Austrian company, Link Pharmaceuticals.
(Doc. 25-1, at 21). Wilson claims that this drug may be expired, mislabeled,
contaminated, or otherwise adulterated and that he has “good cause to believe there is
a serious risk that during his execution he will be conscious and suffer the agonizing
pain of, first, asphyxiation triggered by the paralytic agent, and second, caustic burning
caused by the Potassium Chloride, in violation of the Eighth Amendment.” (Doc. 25-1,
To support this claim, Wilson seeks leave to conduct discovery and to hire an
investigator to determine: (1) when and where Georgia obtained its supply of sodium
thiopental; (2) who manufactured the sodium thiopental, as well as how, when, and
Since 2001, Georgia has used a three-step, lethal injection process for executions. See Base
v. Rees, 553 U.S. 35, 42 n.1, 44 (2008). Until recently, the Department of Corrections first
administered sodium thiopental to prisoners in order to “induce a deep, comalike
unconsciousness.” Id. Thereafter, a second drug was injected to paralyze the inmate, followed
by a third drug that induced cardiac arrest. Id. “The proper administration of the first drug
ensure[d] that the prisoner [did] not experience any pain associated with the paralysis and
cardiac arrest caused by the second and third drugs.” Id.
where it was manufactured; (3) the procedures followed for the importation of the
sodium thiopental; (4) the composition of the sodium thiopental labeled as Dream
Pharma and/or Link Pharmaceutical; (5) information regarding any inmate injected with
Dream Pharma or Link Pharmaceuticals’ sodium thiopental; and (6) the effectiveness of
the sodium thiopental labeled as Dream Pharma and/or Link Pharmaceuticals. (Doc.
25-1, at 17-23).
The problem with Wilson’s argument is that it attacks a moot point. On May 20,
2011, the Georgia Department of Corrections announced that it was substituting sodium
thiopental for the pentobarbital in its lethal injection protocol. Bill Rankin, Georgia’s
Death Row; New Drug OK’d for executions, The Atlanta Journal-Constitution, May 21,
2011, at 1B. Thus the allegedly tainted Dream Pharma sodium thiopental will not be
used to execute Wilson. In his reply brief, Wilson argues this does not obviate his need
for discovery. He now wants to discover “precisely what . . . Georgia intend[s] to inject
into” him. (Doc. 27 at p. 17). As a practical matter, that question can likely be
answered without discovery. Because Wilson’s execution is not imminent, and given
the developments regarding Georgia’s lethal injection protocol in the last few months, it
is likely that nobody knows with reasonable certainty what will happen if and when
Wilson is executed. Thus, it is unlikely that Wilson could establish good cause to
conduct discovery today on what may or may not happen at some indeterminate time in
However, Wilson’s request to conduct discovery suffers from a more fundamental
defect. A habeas action is not the appropriate vehicle for attacking Georgia’s lethal
injection procedures; rather, that challenge must be mounted in a 42 U.S.C. § 1983
action. Tompkins v. Sec’y Dep’t Corr., 557 F.3d 1257, 1261 (11th Cir. 2009); see Hill v.
McDonough, 547 U.S. 573, 579-83 (2006); Thomas v. McDonough, 228 F. App’x 931,
932 (11th Cir. 2007) (holding that “§ 1983 and § 2254 are mutually exclusive,” and that
if a claim can be brought under § 1983, it “cannot be brought under § 2254”).
The Court recognizes that the Eleventh Circuit’s recent decision in Powell v.
Thomas, ___ F.3d ___, No. 11-12613, 2011 WL 2437498 (11th Cir.), potentially creates
a dilemma for § 1983 claims attacking lethal injection procedures. In Powell, the
Eleventh Circuit rejected a § 1983 challenge to Alabama’s decision to substitute
pentobarbital for sodium thiopental in its lethal injection protocol. The Court held that
even though Alabama made the decision to use pentobarbital in 2011, the statute of
limitations for Powell’s § 1983 claim started running when Alabama changed its method
of execution from electrocution to lethal injection in 2001. The Eleventh Circuit held that
a new statute of limitations commences only when there has been “a significant
alteration” in a State’s execution protocol. See Id. at *4. The switch from sodium
thiopental to pentobarbital was not, the Eleventh Circuit held, a significant alteration.
Therefore, the Eleventh Circuit affirmed the district court’s dismissal of Powell’s § 1983
Thus, Wilson should bring his challenge to Georgia’s lethal injection procedures
in a § 1983 action. However, Georgia, like Alabama, adopted lethal injection for
executions in 2001 and, pursuant to Powell, a § 1983 claim based on Georgia’s switch
to pentobarbital may well be barred by the statute of limitations. See Alderman v.
Donald, 293 F. App’x 693, 694 (11th Cir. 2008). Whether Wilson will face that dilemma
remains to be seen. However, it is clear that he is not entitled to conduct discovery on
Georgia’s lethal injection procedures in this habeas proceeding.
Based on the above, the Court DENIES Wilson’s Motion for Leave to Conduct
Discovery and Authorization of Necessary Expert Services and instructs the parties to
comply with the March 4, 2011 scheduling Order for future motions and briefs.
SO ORDERED, this 12th day of July, 2011.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?