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 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 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 .
STANDARD OF REVIEW
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)).
STATUTE OF LIMITATIONS
State argues, inter alia, that Ledford has not shown
a substantial likelihood of success on the merits because his
§ 1983 complaint is time-barred.
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.
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.'"