The AP reports here that on Tuesday night, the State of Oklahoma executed Eric Patton for murdering Charlene Kauer in 1994. Patton knocked on her door and asked her for money. Mrs. Kauer gave him $10, a kindness he repaid by forcing his way in, dragging her throughout her own house while he looked for valuables, forcing her to undress, and finally stabbing her numerous times. The 1998 Court of Criminal Appeals opinion on direct appeal is here. Eight years of subsequent review in state and federal courts ended with the U.S. Supreme Court's denial of certiorari last May.
In February of this year, Patton began attacking the Oklahoma injection protocol. That claim was rejected by the administrative authorities, the U.S. District Court, and U.S. Court of Appeals for the Tenth Circuit. The latter opinion, issued last Friday, is here. In Hill v. McDonough, the Supreme Court held that civil rights suits could be used to challenge injection protocols, but inmates do not have a blank check to hold those claims until the eve of execution so as to force a stay to adjudicate them. Federal courts can deny a stay in such circumstance, and the Tenth Circuit did so in this case.
Without identifying the precise point at which Patton should have filed his suit, we agree that Patton has failed to act in a timely manner to challenge the constitutionality of Oklahoma's lethal injection protocol. Patton was initially sentenced to death in late 1996, and his unsuccessful attempts to challenge that sentence on direct appeal concluded in 1999. According to the record on appeal, Oklahoma's lethal injection protocol has remained essentially constant since that time. Notwithstanding the constancy of the protocol, however, Patton made no effort to challenge its constitutionality, either via prison administrative proceedings or in a legal action filed in federal court, until more than six years after the completion of his direct appeal, nearly two years after the Supreme Court warned in Nelson that "method-of-execution" challenges should be "brought at such a time as to allow consideration of the merits without requiring entry of a stay," 541 U.S. at 650, and approximately five months after we affirmed the district court's denial of his application for federal habeas relief. See Gomez v. United States District Court, 503 U.S. 653, 654 (1992) (criticizing inmate for filing "method-of-execution" challenge pursuant to 42 U.S.C. § 1983 more than a decade after the completion of his direct appeal, and shortly before his scheduled execution); White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005) (rejecting as dilatory a "method-of-execution" challenge brought pursuant to 42 U.S.C. § 1983 by inmate who had "been on death row for more than six years").On Tuesday, the Supreme Court issued its "go ahead" order. There are no recorded dissents.
The Tenth Circuit opinion is unpublished. That is regrettable, given how common this situation now is and the wide variations in how it is handled around the country. The court should reconsider and publish this opinion.