Richard Sealey v. Warden Georgia Diagnostic Prison

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11040
____________________
RICHARD L SEALEY,
Petitioner-Appellant,
versus
WARDEN, GEORGIA DIAGNOSTIC PRISON,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:14-cv-00285-MLB
____________________
Before J ORDAN, JILL PRYOR , and NEWSOM , Circuit Judges.
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2 Opinion of the Court 22-11040
PER C URIAM :
Condemned Georgia inmate Richard Sealey moved the dis-
trict court to reopen his federal habeas proceedings following our
decision in Nance v. Comm’r, Ga. Dep’t of Corr., 981 F.3d 1201 (11th
Cir. 2020), in which we held that certain execution-related claims
should be pursued in habeas corpus proceedings rather than in civil
suits brought under 42 U.S.C. § 1983. The district court denied his
motion, and, not long thereafter, the Supreme Court reversed our
decision in Nance. See Nance v. Ward, 142 S. Ct. 2214 (2022). We
AFFIRM the district court’s denial.
I
A Georgia jury convicted Sealey of malice murder on the
ground that he tortured a woman with a hot fireplace poker and
then killed her and her husband with an axe. Sealey v. Warden, Ga.
Diagnostic Prison, 954 F.3d 1338, 1344–45 (11th Cir. 2020). After
Sealey unsuccessfully pursued appellate and state post-conviction
remedies, he filed a federal habeas corpus petition. Id. at 1349–53.
The district court denied his petition and, in 2020, we affirmed that
denial. Id. at 1344–45. As relevant here, the district court con-
cluded in the course of that litigation that Sealey’s challenges to his
execution by lethal injection were not cognizable in habeas and that
if he intended to pursue them, he would have to do so through a
suit filed under 42 U.S.C. § 1983. Doc. 66 at 100–01. In particular,
the court stated that it understood Sealey’s petition to challenge the
constitutionality of Georgia’s specific “lethal injection proce-
dures,” an allegation that it held belonged in § 1983 under our then-
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22-11040 Opinion of the Court 3
governing precedent. Id. (citing Tompkins v. Secretary, Dep’t of Corr.,
577 F.3d 1257, 1261 (11th Cir. 2009)) (“A § 1983 lawsuit, not a habeas
proceeding, is the proper way to challenge lethal injection proce-
dures.”). We didn’t review that aspect of the district court’s deci-
sion because the certificate of appealability didn’t cover it.
In 2021, Sealey moved the district court to reopen his federal
habeas proceedings on the ground, he said, that new circuit prece-
dent—in particular, our then-recent decision in Nance, 981 F.3d
1201—rendered his lethal-injection claim cognizable in habeas.
The condemned inmate in Nance had argued that his unique medi-
cal condition would make his execution by lethal injection cruel
and unusual, and he proposed the firing squad as an alternative
means of carrying out his death sentence. Nance, 981 F.3d at 1203.
The complication, we observed in our decision, was that lethal in-
jection was the only method of execution authorized by Georgia
law. Id. at 1210. We held that because Nance’s challenge, if suc-
cessful, would deprive Georgia of the ability to execute him under
existing law, it “necessarily impl[ied] the invalidity of his death sen-
tence” and thus belonged in habeas. Id. at 1210–11 (citing, e.g., Heck
v. Humphrey, 512 U.S. 477 (1994)).
The district court denied Sealey’s motion to reopen. It con-
cluded that our decision in Nance didn’t move Sealey’s claim from
the § 1983 to the habeas bucket because he “did not raise a method-
of-execution challenge that, if successful, would prevent his execu-
tion by lethal injection in any form.” Doc. 92 at 4.
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4 Opinion of the Court 22-11040
Not long after the district court denied Sealey’s motion, the
Supreme Court reversed our decision in Nance. See 142 S. Ct. 2214.
In so doing, the Court held that even if Nance’s proposed alterna-
tive method of execution “necessitate[d] a change in state law,” his
claim nonetheless sounded in § 1983 because his “requested relief
still places his execution in Georgia’s control”—the state, the Court
held, could simply change its law. Id. at 2223. Nance’s challenge
therefore did not “necessarily imply the invalidity” of his sentence.
Id. at 2222 (quoting Heck, 512 U.S. at 487).
Sealey then moved the district court to set aside its order in
light of the Supreme Court’s decision in Nance and to reopen his
habeas proceedings or, in the alternative, to amend its certificate of
appealability to include the question whether his execution-related
claim was cognizable in habeas.1 The district court denied the mo-
tion to set aside its order but issued a new COA that included
Sealey’s cognizability argument.
II
At the outset, we hold that Sealey’s “motion to reopen”—
which he predicated on a contention that the underlying law gov-
erning the cognizability of certain execution-related claims in ha-
beas had changed—is properly understood as a Rule 60(b) motion
to set aside the district court’s earlier judgment. See Fed. R. Civ. P.
60(b) (providing circumstances in which a court “may relieve a
party or its legal representative from a final judgment, order, or
1 The district court had already issued a COA on other arguments.
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22-11040 Opinion of the Court 5
proceeding”).2 That tees up a second issue: Was Sealey’s motion a
an unauthorized—and thus forbidden—“second or successive” ha-
beas corpus petition?3
Under the Supreme Court’s decision in Gonzalez v. Crosby, a
Rule 60(b) motion is tantamount to a successive habeas petition
only if, as relevant here, it attacks a previous court’s resolution of a
claim “on the merits.” 545 U.S. 524, 532 (2005) (emphasis in original).
Accordingly, the question for us is whether, in concluding that the
type of execution-related claim that Sealey seeks to pursue is not
“cognizable” in habeas—but rather only under 42 U.S.C. § 1983—
the district court adjudicated that claim “on the merits.” We con-
clude that it did not.
The Gonzalez Court recognized that “[t]he term ‘on the mer-
its’ has multiple usages,” but it clarified that in the habeas context
2 Sealey contends that his motion is not a Rule 60(b) motion but, rather, is
merely a “continuation” of his “first [habeas] application.” Reply Br. of Appel-
lant at 3 n.3. But the cases he cites for support apply only in limited circum-
stances that don’t exist here. See, e.g., Martinez-Villareal v. Stewart, 523 U.S.
637, 642 (1998) (allowing a petitioner who raised an unripe claim under Ford
v. Wainwright, 477 U.S. 399 (1986), in his first federal habeas petition to bring
the claim after ripening without seeking leave to file a second habeas petition);
Panetti v. Quarterman, 551 U.S. 930, 947 (2007) (extending Martinez-Villareal to
Ford claims that weren’t initially raised in the first petition); Slack v. McDaniel,
529 U.S. 473, 485–87 (2000) (allowing a habeas petitioner to bring claims that
were dismissed for failure to exhaust state remedies without seeking leave to
file a second petition provided that he had exhausted the claims in the interim).
3 We review de novo whether a petition for a writ of habeas corpus is second
or successive. Osbourne v. Secretary, Fla. Dep’t of Corr., 968 F.3d 1261, 1264 (11th
Cir. 2020).
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6 Opinion of the Court 22-11040
the controlling question is whether the district court’s original
judgment constituted “a determination that there exist or do not
exist grounds entitling a petitioner to habeas corpus relief under 28
U.S.C. § 2254(a) and (d).” Id. at 532 n.4. “When,” the Court con-
tinued, “a movant asserts one of those grounds (or asserts that a
previous ruling regarding one of those grounds was in error) he is
making a habeas corpus claim.” Id. The “grounds” specified in
§ 2254(a) and (d), in turn, pertain to the substance of the underly-
ing law that governs the propriety of the inmate’s conviction or
sentence—that is, whether either “violat[es] the Constitution or
laws or treaties of the United States,” 28 U.S.C. § 2254(a), or rests
on a state-court decision that “was contrary to, or involved an un-
reasonable application of clearly established Federal law, as deter-
mined by the Supreme Court of the United States,” or “was based
on an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding,” id. § 2254(d)(1)–(2).
See also Gonzalez, 545 U.S. at 533 (observing that a Rule 60(b)
needn’t be “treated like a habeas corpus application” if “neither the
motion itself nor the federal judgment from which it seeks relief
addresses federal grounds for setting aside the movant’s state con-
viction”); id. at 538 (holding that a Rule 60(b) petition “is not to be
treated as a successive habeas petition if it does not assert, or reas-
sert, claims of error in the movant’s state conviction”).
The district court’s conclusion here that the type of claim that
Sealey seeks to litigate isn’t “cognizable” in habeas, but must in-
stead be pursued under § 1983, is different from a determination
that Sealey’s particular claim fails “on the merits,” as that phrase is
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22-11040 Opinion of the Court 7
used in this context. Cf. also Amodeo v. FCC Coleman-Low Warden,
984 F.3d 992, 1002–03 (11th Cir. 2021) (distinguishing between a
claim’s “merit” and “cognizability”); Restatement (First) of Judg-
ments § 49 cmt. a (“[W]here there is a judgment for the defendant
on the ground that the plaintiff sued in the wrong form of action,
the judgment is not on the merits.”).4
In sum, we hold that Sealey’s 60(b) motion was not a succes-
sive habeas petition because it didn’t attack a prior judgment “on
the merits.” We needn’t opine on “cognizability” holdings gener-
ally; all that matters in the particular circumstances of this case is
that the district court’s determination that Sealey’s claim wasn’t
4 The state’s own “analogy” confirms as much: “[S]uppose,” the state says,
“that a petitioner asserts a habeas claim of ineffective assistance of counsel, but
nowhere even so much as alleges that his counsel’s deficiency prejudices him.
When the district court denies that claim, it is ‘on the merits’ because the pe-
titioner simply failed to assert a viable habeas claim—there would ‘not exist
grounds entitling a petitioner to habeas corpus relief.’” Br. of Appellee at 22–
23 (quoting Gonzalez, 545 U.S. at 532 n.4). True, but that is not, as the state
says, “identical to what happened here.” Id. at 23. In the state’s hypo, the
petitioner’s challenge warranted dismissal because he failed to allege a neces-
sary element of his underlying Sixth Amendment claim—namely, that his law-
yer’s deficient performance prejudiced his defense. See Strickland v. Washing-
ton, 466 U.S. 668, 694 (1984). The court’s dismissal of that claim would thus
absolutely be “on the merits.” But again, the situation here is different: The
district court didn’t address the substance or particulars of Sealey’s underlying
Eighth Amendment claim—its elements, their application to Sealey’s case, etc.
Rather, it determined, as an antecedent matter, that Sealey wasn’t entitled to
pursue his claim in habeas at all, whatever its merits.
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8 Opinion of the Court 22-11040
cognizable in habeas wasn’t a judgment “on the merits” in the way
that Gonzalez used that phrase.
III
We review a district court’s denial of a Rule 60(b) motion for
abuse of discretion. Howell v. Secretary, Fla. Dep’t of Corr., 730 F.3d
1257, 1260 (11th Cir. 2013). We hold that the district court did not
err—let alone abuse its discretion—in holding that Sealey’s partic-
ular claim sounds in § 1983 rather than in habeas.
Without definitively determining the precise scope of the
Supreme Court’s decision in Nance, it’s fair to say that it leaves ha-
beas a fairly circumscribed role in execution-related challenges. To
be sure, an inmate claiming that, for whatever reason, the state may
not constitutionally execute him at all—say, because capital punish-
ment is per se unconstitutional, because there is no known valid
method of execution (which perhaps amounts to the same thing),
or because he is categorically ineligible for the death penalty—may,
and perhaps must, proceed in habeas. And we can even assume,
for the sake of argument, that a frontal challenge to a particular
method of execution—for instance, that lethal injection in any
form is unconstitutional—may proceed in habeas.
But—and this is dispositive—fairly read, that’s not the sort of
challenge that Sealey has alleged. He certainly hasn’t claimed that
the state may not execute him by any means. Nor, we think, has
he contended that lethal injection itself is unconstitutional. Rather,
his petition and supporting brief are, as the district court
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22-11040 Opinion of the Court 9
concluded, most reasonably understood to challenge only Geor-
gia’s particular lethal-injection protocols and procedures.
In his habeas petition, for instance, Sealey argued that
“Georgia’s protocols and procedures for executing prisoners by lethal
injection are inconsistent with the evolving standards of decency
. . . .” Doc. 1 at 137 (emphasis added); see also id. at 138 (“protocols
and procedures”); 14o (“protocols and procedures”); 141 (“proto-
cols and procedures”). In particular, Sealey challenged “the legality
of the method [by which Georgia] obtain[ed] lethal injections
drugs,” id. at 138, alleged that the state had “illegally imported” and
“illegally obtained” its lethal-injection drugs, id. at 138–39, com-
plained that the state had “abruptly altered its lethal injection pro-
cedures,” id. at 138, charged that the state wasn’t using “FDA-
approved” drugs in executions, id. at 139, asserted that the state had
resorted to using a “compounding pharmacy” to manufacture its
lethal-injection drugs, id., and complained that the state had made
“the nature and origin of [its] lethal injection drugs a ‘confidential
state secret,’” id. at 139 (quoting O.C.G.A. § 42-5-36(d)).
Sealey’s brief in support of his habeas petition sounded the
same “protocols and procedures” themes. E.g., Doc. 47 at 242. For
instance, he assailed Georgia’s “adoption of a protocol that relies
upon drugs of unknown origin, and its decision to cloak both the
source of its drugs and the qualifications of the personnel charged
with carrying out executions . . . .” Id. at 240–41. Echoing his pe-
tition, he likewise complained that the state had “no FDA-approved
supply” of lethal-injection drugs, id. at 241, that it was using a
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10 Opinion of the Court 22-11040
“compounding pharmacy” to make them, id. at 242, that the drugs
were “anonymously-produced,” id., that it hadn’t “establish[ed]
minimum qualifications required of the personnel performing” ex-
ecution procedures, id., and that it had classified the origins of the
drugs and the qualifications of state personnel a “confidential state
secret,” id. See also generally id. at 251 (“Compounded Pentobarbital
Presents a Risk of Harm”); id. at 253 (“Unqualified Personnel Pre-
sent a Risk of Harm”); id. at 258 (“Georgia Is Carrying Out Execu-
tions with Illegally-Obtained Drugs”); id. (“Pentobarbital Can Only
Be Compounded Pursuant to a Valid Prescription”); id. at 264
(“Georgia Obtained Its Lethal Injection Drugs Through a Fraudu-
lent Prescription”); id. at 271 (“Georgia’s Combination of Secrecy,
Ineptitude and Illegality in Its Administration of Executions by Le-
thal Injection Violates Petitioners[’] Constitutional Rights”).
In the face of all that, Sealey points principally to his peti-
tion’s prayer for relief: “Petitioner prays that this Court . . . [i]ssue
a writ of habeas corpus to have Petitioner brought before it so that
he may be . . . relieved of his unconstitutional sentence of death.”
Doc. 1 at 143. That, we think, is simply too thin a reed. That single
sentence cannot fairly be divorced from the larger context of the
petition and supporting brief, both of which, as the district court
correctly concluded, focus on the more granular aspects of Geor-
gia’s particular (and current) lethal-injection protocol.5
5 The same is true of the bolded subheading in Sealey’s petition, which states
that “PETITIONER CANNOT BE SUBJECTED TO LETHAL INJECTION
BECAUSE TO DO SO WOULD BE CRUEL AND UNUSUAL
PUNISHMENT IN VIOLATION OF PETITIONER’S RIGHTS UNDER THE
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22-11040 Opinion of the Court 11
In sum, we hold that the district court did not err in conclud-
ing that Sealey’s particular challenges to Georgia’s lethal-injection
“protocols and procedures” sound in § 1983—and are not cogniza-
ble in habeas—because they do not challenge the validity of his
conviction or sentence.
IV
For the forgoing reasons, the district court’s denial of
Sealey’s motion to reopen is AFFIRMED.
FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.” Doc. 1
at 137. The substance of Sealey’s argument belies the heading’s categorical
framing.
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