http://www.oranous.com/florida/MarkSchwab/200715258ord.pdf
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
NOV 09, 2007
ELEVENTH CIRCUIT
NOV 09, 2007
No. 07-15258
THOMAS K. KAHN
CLERK
CLERK
IN RE:
MARK DEAN SCHWAB,
Petitioner,
MARK DEAN SCHWAB,
Petitioner,
Appeal from the United States District Court for the
Middle District of Florida
Middle District of Florida
Before: DUBINA, CARNES and HULL, Circuit Judges.
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
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, 126 S.Ct. 2096, 2099 (2006); Nelson v. Campbell, 541 U.S. 637,
124 S.Ct. 2117 (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injection procedures to be brought in a § 2254 proceeding is “no longer valid in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).
petition, instead of in a 42 U.S.C. § 1983 proceeding, see generally Hill v.
McDonough, 126 S.Ct. 2096, 2099 (2006); Nelson v. Campbell, 541 U.S. 637,
124 S.Ct. 2117 (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.
moot.
APPLICATION DENIED; MOTION FOR STAY DENIED AS MOOT.
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