WALLACE M. FUGATE, III, PETITIONER-APPELLANT,
v.
DEPARTMENT OF CORRECTIONS, JIM WETHERINGTON, RESPONDENTS-APPELLEES
BY THE COURT: Fugate appeals the district court’s dismissal of his complaint and moves to enjoin and restrain the defendants from executing him until they take certain measure to minimize the risk of unnecessary pain, suffering and mutilation during the execution process. The execution is presently scheduled for 7:00 P.M., on Wednesday, 14 August 2002.
The district court concluded that Fugate’s action, putatively brought pursuant to 42 U.S.C. § 1983, was properly construed as a petition for writ of habeas corpus and found that it was without jurisdiction.
We hold that the district court correctly dismissed Fugate’s complaint. A complaint seeking relief under 42 U.S.C. § 1983 from a sentence of death as cruel and unusual punishment “constitutes the ‘functional equivalent’ of a second habeas petition,” and “the district court [i]s subject to the law applicable to successive habeas petitions.” Hill v. Hopper, 112 F. 3d 1088, 1089 (11th Cir.1997), citing Felker v. Turpin, 101 F. 3d 95, 96 (11th Cir.1996).
The district court lacked jurisdiction to consider Fugate’s claim because he had not applied to this court for permission to file a successive application. See 28 U.S.C. § 2244(b)(3)(A). We further note that such an application is due to be denied. See In re Provenzano, 215 F. 3d 1233, 1235-36 (11th Cir.2000) (finding that a claim that lethal injection as administered is cruel and unusual punishment does not meet the requirements of § 2244(b)(2)(A) or (B)). We, therefore, deny Fugate’s request for an injunction and affirm the district court’s dismissal. AFFIRMED. . As a petition for writ of habeas corpus, the petition is subject to the requirements of 28 U.S.C. § 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. 104-132.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
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Dolan Darling v. State, 45 So. 3d 444 (Fla. 2010)…al defendant was entitled to CCRC representation. Felker remained the prevailing law in the Eleventh Circuit through 2004. See Nelson v. Campbell, 347 F. 3d 910, 912 (11th Cir.2003) (citing Fugate, 301 F. 3d at 1288); Fugate v. Dep’t of Corrections, 301 F. 3d 1287, 1288 (11th Cir.2002) (citing Hill, 112 F. 3d at 1089); Hill v. Hopper, 112 F. 3d 1088, 1088-89 (11th Cir.1997) (citing Felker, 101 F. 3d at 96) rev’d, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004). More recently, however, the landscape with…
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Nelson v. Campbell, 541 U.S. 637 (U.S. 2004)…and, because petitioner had not obtained authorization to file a second or successive application as required by § 2244(b)(3), dismissed the complaint. A divided panel of the Eleventh Circuit affirmed. Relying on Fugate v. Department of Corrections, 301 F. 3d 1287 (2002), in which the Eleventh Circuit had held that § 1983 claims challenging the method of execution necessarily sound in ha-beas, the majority held that petitioner should have sought authorization to file a second or successive habeas application.…
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Grayson v. Allen, 491 F.3d 1318 (11th Cir. 2007)…through more than fifteen years of state and federal post-conviction proceedings, see Grayson v. King, 460 F. 3d at 1335, also served as counsel in 2002 in a § 1983 suit challenging Georgia’s lethal injection protocol, see Fugate v. Dep’t of Corr., 301 F. 3d 1287, 1288 (11th Cir.2002). Attached to the initial complaint in Fugate was a declaration from Dr. Heath questioning this same three-drug cocktail. See Fugate v. Dep’t of Corr., No. 1:02-CV-2219-CC, Docket Entry No. 1 (N.D.Ga. Aug. 12, 2002). Because…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- In re Provenzano, 215 F.3d 1233 (11th Cir. 2000)
- Ellis Wayne Felker v. Turpin, 101 F.3d 95 (11th Cir. 1996)
- Hill v. Hopper, 112 F.3d 1088 (11th Cir. 1997)