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Ledford v. Commissioner, Georgia Department of Corrections

United States Court of Appeals, Eleventh Circuit

May 15, 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 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 1199485 (Apr. 3, 2017). The United States Supreme Court subsequently denied Ledford's petition for rehearing. Ledford v. Sellers, ___ U.S. ___, ___ S.Ct. ___, No. 16-6444, 2017 WL 2039266 .

         II. STANDARD OF REVIEW

         The standard governing a stay pending appeal is the same as the standard applicable to a motion for a temporary restraining order. A stay pending appeal is appropriate only if the moving party establishes: "(1) a substantial likelihood of success on the merits; (2) that the [stay] is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the [stay] would cause the other litigant; and (4) that the [stay] would not be adverse to the public interest." Gissendaner v. Comm'r, Ga. Dep't of Corr., 779 F.3d 1275, 1280 (11th Cir. 2015) (quoting Wellons v. Comm'r, Ga. Dep't of Corr., 754 F.3d 1260, 1263 (11th Cir. 2014)).

         III. STATUTE OF LIMITATIONS

         The State argues, inter alia, that Ledford has not shown a substantial likelihood of success on the merits because his § 1983 complaint is time-barred.

         An untimely complaint cannot succeed on the merits. Gissendaner, 779 F.3d at 1280. A § 1983 challenge to a state's method of execution is subject to the statute of limitations governing personal injury actions in the state where the challenge is brought. Id. Ledford brought his § 1983 action in Georgia, which has a two-year statute of limitations period for such actions. See id.; O.C.G.A. § 9-3-33.

         The right of action for a method-of-execution challenge "'accrues on the later of the date on which' direct review is completed by denial of certiorari, 'or the date on which the capital litigant becomes subject to a new or substantially changed execution protocol.'" Gissendaner, ...


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