On Wednesday, the Texas Court of Criminal Appeals issued this order in Ex parte Alba, asking for briefing on whether a lethal injection claim is cognizable on habeas corpus. This is the flip side of the question considered by the Supreme Court in Hill v. McDonough, whether the claim can be brought as a civil rights suit instead of on habeas. The U.S. Supreme Court considered method of execution claims on habeas when the electric chair was first being used in 1890. See page 17 of CJLF's Hill brief. Habeas was also used in the LaGrand case in 1999. The prisoners lost their enthusiam for using habeas after AEDPA clamped down severely on successive petitions in 1996. Habeas was no longer useful for method-of-execution claims held until all other issues were litigated in order to further delay the execution. That was why Hill was so interested in using the civil rights law.

In Texas state court, the civil v. habeas question could have a different angle. Which court of Texas's two-headed judiciary would have the final review of civil suit? Would it be the Court of Criminal Appeals or the Supreme Court? I suspect the justices of the Texas Supreme Court want nothing to do with this. Lone Star lawyers who have some insight on this are cordially invited to comment.

Comments elsewhere in the blogosphere include the TDCJ Blog, Capital Defense Weekly, and Sentencing Law and Policy.