Gregory Lee Wilson v. John D. Rees

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0287p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
GREGORY LEE WILSON ,
Plaintiff-Appellant,
v.
J OHN D. REES,
Defendant,
THOMAS SIMPSON , in his official capacity as
Warden, Kentucky State Penitentiary; SCOTT
HAAS , in his official capacity as Medical
Director for the Kentucky Department of
Corrections; STEVE BESHEAR , in his official
capacity as Governor of the Commonwealth
of Kentucky; LA DONNA H. THOMPSON , in her
official capacity as Commissioner, Kentucky
Department of Corrections,
Defendants-Appellees.
X---->
,----------------
N
No. 09-6306
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 07-00078—Karen K. Caldwell, District Judge.
Decided and Filed: September 3, 2010
Before: BOGGS, GIBBONS, and COOK, Circuit Judges.
_________________
COUNSEL
ON BRIEF: William E. Sharp, AMERICAN CIVIL LIBERTIES UNION OF
KENTUCKY, GENERAL COUNSEL, Louisville, Kentucky, Michael J. O’Hara,
O’HARA, RUBERG, TAYLOR, SLOAN & SARGENT, Covington, Kentucky, for
Appellant. John C. Cummings, COMMONWEALTH OF KENTUCKY, JUSTICE AND
PUBLIC SAFETY CABINET, Frankfort, Kentucky, for Appellees.
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No. 09-6306 Wilson v. Rees, et al. Page 2
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OPINION
_________________
BOGGS, Circuit Judge. Appellant Gregory Wilson is a Kentucky inmate. In
1988, a jury convicted him of murder, kidnapping, rape, robbery, and conspiracy to
commit robbery, and he was sentenced to death. Wilson’s direct review concluded in
1993 when the U.S. Supreme Court denied certiorari. Wilson v. Kentucky, 507 U.S.
1034 (1993).
In November 2007, Wilson filed the underlying action in district court under
42 U.S.C. § 1983. Wilson challenged Kentucky’s lethal injection protocol as contrary
to the Eighth and Fourteenth Amendments of the United States Constitution and to
analogous provisions of the Kentucky Constitution.
The district court dismissed Wilson’s complaint as time-barred by Kentucky’s
one-year statute of limitations on civil actions, relying on this court’s holding in Cooey
v. Strickland (Cooey II), 479 F.3d 412 (2007). Wilson v. Rees, No. 3:07-CV-78-KKC,
2009 WL 3188947 at *3 (E.D. Ky. Sept. 30, 2009); see KY . REV . STAT . § 413.140(1)(a).
In Cooey II, we ruled that the accrual date for method of execution claims is the date of
the conclusion of direct review, or if direct review concluded before the method of
execution was established, when the inmate “knew or should have known [the method
of execution] based upon a reasonable inquiry, and could have filed suit and obtained
relief.” Cooey II, 479 F.3d at 421-22. In accordance with Cooey II, the district court
held that the statute of limitations began to run no later than 2004, when Wilson filed a
prison grievance challenging the protocol, and that Wilson’s claim was thus time-barred.
Wilson v. Rees, No. 3:07-CV-78-KKC at *7. Wilson’s timely appeal followed.
We review a district court’s holding that a complaint is barred by the statute of
limitations under the de novo standard. Bonner v. Perry, 564 F.3d 424, 430 (6th Cir.
2009); see Cooey II, 479 F.3d at 416. Wilson does not argue that the district court
incorrectly applied Cooey II, however, so we must assume that the court’s Cooey II

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No. 09-6306 Wilson v. Rees, et al. Page 3
analysis was correct. Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 462 (6th Cir.
2003) (“An appellant waives an issue when he fails to present it in his initial briefs
before this court.”).
In November 2009, shortly after Wilson filed his appeal, the Kentucky Supreme
Court held that the state’s lethal injection protocol must comply with Kentucky’s
Administrative Procedures Act, and that before any further inmates were executed, the
state had to issue the protocol as a valid regulation. Bowling v. Ky. Dept. of Corrections,
301 S.W.3d 478, 492 (Ky. 2009). Within weeks, the state issued a proposed regulation,
and after a notice-and-comment period, the lethal injection protocol was adopted as a
regulation on May 7, 2010. See 501 KY . ADMIN . REGS . 16:330 (2010).
Wilson argues that Bowling voided the state’s lethal injection protocol and that
the statute of limitations must reset upon the issuance of the new regulation. Wilson
further argues that remand is necessary to fully determine Bowling’s impact on the
statute of limitations analysis.
We disagree and hold that Cooey II continues to squarely control this case, even
after the Kentucky Supreme Court decision in Bowling. In Cooey II, the court was
confronted with a similar claim against Ohio’s lethal injection protocol. See Cooey II,
479 F.3d at 423. During the pendency of the appeal, Ohio made changes to its lethal
injection protocol in response to various issues encountered in a previous execution.
Ibid. The changes included a more flexible time frame, a more complete pre-execution
medical examination, and various changes to the IV procedure. Id. at 424. Because
none of these changes related to Cooey’s “core complaints,” we held that the timeliness
of Cooey’s complaint was not impacted by the changes to Ohio’s protocol. Ibid.
Here, the state merely adopted its preexisting protocol as a regulation, making
no material changes to the method of execution. Wilson’s “core complaints” challenge
the drugs used and the methods of administering those drugs, issues extraneous to
whether the protocol is issued as an internal guidance document or as an administrative
regulation. As it relates to Wilson’s claims, the new regulation is indistinguishable from
the previous lethal injection protocol. Compare 501 KY . A DMIN . REGS . 16:330 with

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No. 09-6306 Wilson v. Rees, et al. Page 4
Lethal Injection Protocol (12/14/2004), Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, J.A.,
vol. IV at 971-983 (2007) and First Amended Complaint, R. 3 at 6-7. Further, Wilson
makes no reference to any particular protocol document in his complaint, but rather
describes the method of execution that he seeks to challenge. Quite reasonably,
Wilson’s complaint is not concerned with the form of the protocol, but rather the manner
in which the protocol dictates that he will be executed. To the extent that his manner of
execution allegations were true at the time he filed his complaint, they are equally as true
today. There is even less possible merit to a claim of change of circumstances that,
arguably, would restart the statute of limitations clock than there was in Cooey II itself,
which rejected such a claim. Therefore, Bowling and its aftermath do not disrupt the
district court’s holding that Wilson’s complaint is barred by the statute of limitations.
Cooey II, 479 F.3d at 421-24.
In the alternative, Wilson argues that Cooey II was wrongly decided. We can not
entertain this argument. Salami v. Sec’y of Health & Human Servs., 774 F.2d 685, 689
(6th Cir. 1985) (“A panel of this Court cannot overrule the decisions of another panel.
The prior decision remains the controlling authority unless an inconsistent decision of
the United States Supreme Court requires modification of the decision or this Court
sitting en banc overrules the prior decision.”).
The decision of the district court is therefore AFFIRMED.

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