IN RE: MARK DEAN SCHWAB, PETITIONER
BY THE COURT: We have previously affirmed the denial of federal habeas relief to Mark Dean Schwab, a Florida death row inmate. Schwab v. Crosby, 451 F. 3d 1308 (11th Cir.2006). Before us now are his application to file a second or successive federal habeas corpus petition pursuant to 28 U.S.C. § 2244(b), and a motion for stay of execution in order to permit us time to consider that application. The only claim Schwab wants to raise in a second petition involves the constitutionality of Florida’s lethal injection procedures and protocols. Even if such a claim were properly cognizable in an initial federal habeas petition, instead of in a 42 U.S.C. § 1983 proceeding, see generally Hill v. McDonough, — U.S. -, 126 S.Ct. 2096, 2099, 165 L.Ed.2d 44 (2006); Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), Rutherford v. McDonough, 466 F. 3d 970, 973 (11th Cir.2006) (observing that pre-Nelson circuit law requiring challenges to lethal injection procedures to be brought in a § 2254 proceeding is “no longer valid in light of the Supreme Court’s Hill decision”), this claim cannot serve as a proper basis for a second or successive habeas petition. It cannot because it neither relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court, 28 U.S.C. § 2244(b)(2)(A), nor involves facts relating to guilt or innocence, see 28 U.S.C. § 2244(b)(2)(B)(ii). Our disposition of the application renders the motion for stay of execution moot. APPLICATION DENIED; MOTION FOR STAY DENIED AS MOOT.
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Henyard v. State, 992 So. 2d 120 (Fla. 2008)…, contrary to Diaz’s assertions here, the United States Supreme Court did not hold that a constitutional challenge to lethal injection procedures could not be brought under a habeas petition. Diaz, 945 So. 2d at 1154. Subsequently, in In re Schwab, 506 F. 3d 1369 (11th Cir.2007), the Eleventh Circuit dismissed Schwab’s petition as moot, stating: Even if [a claim challenging the constitutionality of Florida’s lethal injection protocols] were properly cognizable in an initial federal habeas petition, instead…
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Ventura v. State, 2 So. 3d 194 (Fla. 2009)…a successive federal habeas petition is no longer an option for any defendant who has previously filed an initial federal habeas petition before Florida’s current execution protocol was adopted. The Eleventh Circuit, in its decision in In re Schwab, 506 F. 3d 1369 (11th Cir.2007), and other decisions, has consistently indicated it will simply deny such a habeas petition [*203] as successive without addressing the merits. In fact, if an inmate has previously filed any federal habeas petition before Florida ado…
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Dolan Darling v. State, 45 So. 3d 444 (Fla. 2010)…s petitions are a fruitless endeavor for both the inmates and the State because the federal courts are statutorily bound to reject such claims based upon the plain text of 28 U.S.C. § 2244(b)(2)(A), (b)(2)(B)(i)-(ii) (2000). See, e.g., In re Schwab, 506 F. 3d 1369, 1370 (11th Cir.2007) (“[An Eighth Amendment] claim [challenging Florida’s current lethal-injection protocol] cannot serve as a proper basis for a second or successive habe-as petition. It cannot because it neither relies on a new rule of constituti…
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- Nelson v. Campbell, 541 U.S. 637 (U.S. 2004)
- Hill v. McDonough, 547 U.S. 573 (U.S. 2006)
- Schwab v. Crosby, 451 F.3d 1308 (11th Cir. 2006)
- Rutherford v. McDONOUGH, 466 F.3d 970 (11th Cir. 2006)