Price v. Dunn

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Price's motion for entry of a Rule 52(c) final judgment in his favor, or in the alternative, a stay of execution (Doc. 81-SEALED) and the Defendants' Response (Doc. 86-SEALED).

         I. History and Jurisdiction

         Price was originally scheduled to be executed on April 11, 2019. Price is currently scheduled to be executed on May 30, 2019. Before the Court is Price's fourth motion to stay his execution which was filed late on May 24, 2019.

         On April 5, 2019, this Court denied Price's first motion for a stay of execution based on the fact he was unable to show a readily available alternative to the three-drug method of execution that the State intended to use. Price v. Dunn, 2019 WL 1509610 (S.D. Ala. Apr. 5, 2019); (Doc. 32). On April 10, 2019, the Eleventh Circuit affirmed the denial on the basis that Price had failed to provide reliable evidence that nitrogen hypoxia would significantly reduce his risk of substantial pain as compared to the three-drug method of execution. Price v. Commissioner, Dept. of Corr., 920 F.3d 1317 (11^th Cir. 2019). However, the Eleventh Circuit held that nitrogen hypoxia was readily available. Id. at 1326-1328.

         On April 11, 2019, prior to the mandate issuing on the Eleventh Circuit's decision on the first motion to stay, Price file a second motion to stay (Doc. 45) wherein he provided new evidence to support his contention that nitrogen hypoxia would significantly reduce Price's risk of substantial pain as compared to the three-drug method of execution. (Doc. 49); Price v. Dunn, 2019 WL 1578277 (S.D. Ala. Apr. 11, 2019). This Court believed that it had jurisdiction to consider the motion since it was a new motion with new evidence. Id. at *2. Finding that Price had cured the deficiency stated by the Eleventh Circuit and relying on the Eleventh Circuit's finding that nitrogen hypoxia was readily available, this Court granted the stay of execution. Id. at *8. The State appealed the decision arguing that this Court did not have jurisdiction to consider Price's second motion to stay. Due to the time constraints and finding that substantial questions of jurisdiction existed, the Eleventh Circuit stayed the execution on April 11, 2019. Price v. Commissioner, Ala. Dept. of Corr., 2019 WL 1591475 (11^th Cir. Apr. 11, 2019); (Doc. 51).

         On April 12, 2019, the Supreme Court entered an order denying Price's application for stay of execution and denying Price's first petition for writ of certiorari. Price v. Dunn, No. 18-8766 (18A1044), ___ S.Ct.___, 2019 WL 1572429 (Mem) (Apr. 12, 2019). On the same date, the Supreme Court entered an order granting the State's application to vacate the stay of execution in this case. Dunn v. Price, No. 18A1053, 139 S.Ct. 1312 (2019). However, the execution was not carried out by the State.

         On April 15, 2019, this Court held a status conference. (Doc. 54). The State agreed that this Court had jurisdiction to go forward on the merits of the case. Also on this date, the State filed an emergency motion to set an expedited second execution date with the Alabama Supreme Court. (Doc. 55-1).

         On April 18, 2019, the Eleventh Circuit issued its mandate on the April 11, 2019 opinion denying Price's first motion for stay of execution.^[1] (Doc. 58). On April 22, 2019, this Court granted Price's oral request for an expedited trial setting and set his Eighth Amendment claim for a non-jury trial on June 10, 2019. In so doing, the Court held that: any request by Price that the case be expedited further, if the execution date is set before the trial setting, is denied; and that pursuant to the Supreme Court's decision, no further stays of execution would be granted. (Doc. 61).

         On April 29, 2019, the Alabama Supreme Court ordered Price's execution for May 30, 2019. (Docs. 63; 63-1). On April 30, 2019, Price filed a third motion to stay (Doc. 64) on the same basis as motions one and two, that the three-drug protocol was unconstitutional and that he should be executed by the nitrogen hypoxia method. The Court denied the motion. (Doc. 65, 67); Price v. Dunn, 2019 WL 1966641 (S.D. Ala. May 2, 2019). On May 15, 2019, Price appealed to the Eleventh Circuit. (Doc. 75).

         On May 13, 2019, the Supreme Court issued an opinion denying Price's second petition for writ of certiorari. Price v. Dunn, ___ S.Ct.____, 2019 WL 2078104 (Mem) (May 13, 2019). In this decision, Justice Thomas opined on the exercise of jurisdiction by the lower courts' over Price's second motion to stay, stating that the district court “manifestly lacked jurisdiction over the case.” Price, 2019 WL 2078104 at *3. Thus, Price's second motion to stay is a moot issue and this Court's decision on the second motion to stay is a nullity.

         On May 24, 2019, the Eleventh Circuit issued an opinion affirming this Court's denial of the third motion to stay. (Doc. 79); Price v. Commissioner, Ala. Dept. of Corr., 2019 WL 2245921 (11^th Cir. May 24, 2019). The mandate on this decision has not issued. Thus, jurisdiction on this issue is still pending before the Eleventh Circuit.^[2] As Justice Thomas stated:

“The filing of a notice of appeal is an event of jurisdictional significance-it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58…(1982) (per curiam). Thus, as the Eleventh Circuit has long recognized, “a district court generally is without jurisdiction to rule in a case that is on appeal”-even after the court has rendered a decision--“until the mandate has issued.” Zaklama v. Mt. Sinai Medical Center,906 F.2d 645, 649 (1990); see also Kusay v. United States, 62 F.3d 192, 194 (CA7 1995) ...