IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11393 ________________________ MICHAEL NANCE,

Plaintiff-Appellant,

versus COMMISSIONER GEORGIA DEPARTMENT OF CORRECTIONS, WARDEN, GEORGIA DIAGNOSTIC AND CLASSIFICATION PRISON,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________ Before WILLIAM PRYOR, Chief Judge, WILSON, MARTIN, JORDAN, NEWSOM, BRANCH, GRANT, LUCK, LAGOA, and BRASHER, Circuit Judges.* BY THE COURT:

A petition for rehearing having been filed and a member of this Court in active service having requested a poll on whether this appeal should be reheard by

* Judges Robin Rosenbaum and Jill Pryor recused themselves and did not participate in the en banc poll. USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 2 of 17

the Court sitting en banc, and a majority of the judges in active service on this Court having voted against granting rehearing en banc, it is ORDERED that this appeal will not be reheard en banc.

2 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 3 of 17

WILLIAM PRYOR, Chief Judge, joined by NEWSOM and LAGOA, Circuit Judges, statement respecting the denial of rehearing en banc:

A majority of judges voted not to rehear this appeal en banc. As author of the panel-majority opinion, I write to respond to my dissenting colleagues’ arguments that the panel opinion is irreconcilable with Supreme Court and circuit precedent and that it leaves some prisoners without a remedy in federal court. Neither charge is true.

Before I discuss the dissent’s arguments, I want to set the record straight on a procedural matter: the panel’s resolution of this appeal on jurisdictional grounds was not a surprise to the parties. Two weeks before oral argument, the panel directed the parties to be prepared to address our jurisdiction. The panel explained that “[l]ethal injection is the only method of execution authorized by Georgia law,” and pointed out that Nance was “seek[ing] an injunction that would foreclose the State from implementing his death sentence under its present law.” Given that premise, the panel asked the parties whether “[Nance’s] section 1983 claim amount[ed] to a challenge to the fact of his sentence itself that must be reconstrued as a habeas petition,” and whether, “[i]f Nance’s claim [was] a habeas petition, . . . it [was] second or successive[.]”

In its order to the parties, the panel framed the issue by quoting passages from Bucklew v. Precythe, 139 S. Ct. 1112, 1128 (2019) (“An inmate seeking to identify an alternative method of execution is not limited to choosing among those 3 USCA11 Case: 20-11393 Date Filed: 04/20/2021 Page: 4 of 17

presently authorized by a particular State’s law. . . . [But] existing state law might be relevant to determining the proper procedural vehicle for the inmate’s claim.”), Hill v. McDonough, 547 U.S. 573, 582 (2006) (“If the relief sought would foreclose execution, recharacterizing a complaint as an action for habeas corpus might be proper.”), and Nelson v. Campbell, 541 U.S. 637, 644 (2004) (“In a State . . . where the legislature has established lethal injection as the preferred method of execution, a constitutional challenge seeking to permanently enjoin the use of lethal injection may amount to a challenge to the fact of the sentence itself