United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
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).
History and Jurisdiction
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.
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 (11th Cir. 2019). However, the
Eleventh Circuit held that nitrogen hypoxia was readily
available. Id. at 1326-1328.
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 (11th Cir.
Apr. 11, 2019); (Doc. 51).
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.
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).
April 18, 2019, the Eleventh Circuit issued its mandate on
the April 11, 2019 opinion denying Price's
first motion for stay of
execution. (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).
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).
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.
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 (11th Cir. May 24,
2019). The mandate on this decision has not issued. Thus,
jurisdiction on this issue is still pending before the
Eleventh Circuit. 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) ...