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506 F.3d 1369

Docket No. 07-15258.

In re Schwab

Eleventh Circuit Court of Appeals · decided 2007-11-09

Cited by 5 later decisions — most recently April 2013

1 federal appellate · 2 state decisions

Key passage — most relied on by later courts

“Even if [a claim challenging the constitutionality of Florida's lethal injection protocols] were properly cognizable in an initial federal habeas petition, instead of in a 42 U.S.C. § 1983 proceeding, see generally Hill v. McDonough, 547 U.S. 573 , 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pre-Nelson circuit law requiring challenges to lethal injection procedures to be brought in a § 2254 proceeding is "no longer valid in light of the Supreme Court's Hill decision"), this claim cannot serve as a proper basis for a second or successive habeas petition.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).”

quoted by 1 later decision, including 992 So. 2d 120 - Henyard v. State

Applies 28 U.S.C. § 2244 (Antiterrorism and Effective Death Penalty Act of 1996) · 42 U.S.C. § 1983 (Civil Rights Act of 1871 / Section 1983 (Ku Klux Klan Act))

Relies on Nelson v. Campbell Commissioner Alabama Department of Corrections et al. · Hill v. McDonough · Schwab v. Crosby

Good law ✅— No negative treatment on recordhow we know

Decided 2007-11-09

View the full empirical analysis of this case →

¶1*1370Before DUBINA, CARNES and HULL, Circuit Judges.

¶2BY THE COURT:

¶3We 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.

¶4Even 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).

¶5Our disposition of the application renders the motion for stay of execution moot.

¶6APPLICATION DENIED; MOTION FOR STAY DENIED AS MOOT.

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