Appeals court won’t review denial of death row firing squad request

A federal appeals court has declined to reconsider its earlier ruling that rejected the request by a man on Georgia’s death row to die by firing squad rather than by the injection of a sedative.

Lawyers for Michael Wade Nance argued that his veins are severely compromised and that the execution method Georgia uses — injection of pentobarbital — could cause him excruciating pain in violation of his constitutional rights. They suggested instead that the state execute Nance by firing squad.

A federal judge rejected that request and a three-judge panel of the 11th U.S. Circuit Court of Appeals in Atlanta ruled in December that it could not consider his request for procedural reasons. The full appeals court on Tuesday issued a 7-3 decision declining to reconsider the panel’s decision.

Nance, 59, was convicted and sentenced to death for killing Gabor Balogh in 1993. Nance had just robbed a Gwinnett County bank and abandoned his own car after dye packs hidden in the stolen money exploded. Balogh was backing out of a parking space at a liquor store across the street when Nance pulled open the car door and shot him, according to court filings.

In a complaint filed in January 2020, Nance’s lawyers wrote that his veins are

ATLANTA —

extremely difficult to locate by sight and those that are visible are compromised. There is substantial risk that the sustained intravenous access involved in an execution could cause his veins to lose their structural integrity and “blow,” causing the drug to leak into the surrounding tissue where it would cause intense pain and burning, they wrote.

A prison medical technician told Nance in 2019 that the execution would likely have to “cut his neck” — likely a reference to a process that involves inserting a catheter into a large central vein — to carry out the execution because that’s the only way they could get sustained intravenous access, his lawyers wrote.

Additionally, they argued, a medication Nance has been taking for chronic back pain has altered his brain chemistry in such a way that pentobarbital won’t reliably cause him to become unconscious and insensate, meaning he could suffer a prolonged and painful execution.

A federal judge ruled in March 2020 that he had waited too long to make these arguments and that his lawyers failed to show his constitutional protections against cruel and unusual punishment would be violated since the court must presume state officials will act “carefully and humanely” in carrying out his execution.

In a dissenting opinion Tuesday, Circuit Judge Charles Wilson, joined by Circuit Judges Beverly Martin and Adalberto

Jordan, wrote that the appeals court should consider Nance’s arguments.

The 11th Circuit panel concluded that since lethal injection is the only method of execution authorized by Georgia law, Nance was effectively challenging the validity of his death sentence. Nance was procedurally barred from bringing that type of challenge, the panel said.

But Wilson argued that Nance wasn’t trying to avoid execution by asking to be executed by firing squad.

“He accepts his fate. He does not ask to be spared,” Wilson wrote. “Nance only asks that the method by which the State will take his life falls in line with his Eighth Amendment right to be free of cruel and unusual punishment.”

The constitutionality of the execution method “should have weighed heavily on this court,” Wilson wrote.

“Sadly, by declining to rehear Nance’s case, a majority of the court follows a pattern of employing faulty reasoning to bar relief from inhumane executions,” he wrote.

The 11th Circuit Chief Judge William Pryor, joined by Circuit Judges Kevin Newsom and Barbara Lagoa, wrote that the panel’s opinion was consistent with circuit and U.S. Supreme Court precedent.

“Federal courts do not have jurisdiction to provide remedy for every right denied,” and not every decision reflecting that fact is worthy of review by the full appeals court, Pryor wrote.

President Joe Biden will pledge to cut U.S. greenhouse gas emissions at least in half by 2030 as he convenes a virtual climate summit with 40 world leaders, according to three people with knowledge of the White House plans.

The 50% target would nearly double America’s previous commitment and help the Biden administration prod other countries for ambitious emissions cuts as well. The proposal would require dramatic changes in the power and transportation sectors, including significant increases in renewable energy such as wind and solar power and steep cuts in emissions from fossil fuels such as coal and oil.

The nonbinding but symbolically important pledge is a key element of the twoday summit, which begins Thursday when world leaders gather online to share strategies to combat climate change. China announced on Wednesday that President Xi Jinping will participate. China is the world’s largest carbon polluter, with the U.S. second.

The U.S. emissions target has been eagerly awaited by all sides of the climate debate. It will signal how aggressively Biden wants to move on global warming, a divisive and expensive issue that has riled Republicans to complain about job-killing government overreach even as some on the left worry Biden has not gone far enough to address a profound threat to the planet.

Administration officials promised significant announcements on emissions cuts but would not confirm the U.S. goal before the summit.

The European Union on Wednesday reached a tentative deal intended to make the 27-nation bloc carbonneutral by 2050. The agreement commits the EU to an intermediate target of cutting greenhouse gas emissions by at least 55% by 2030 compared with 1990 levels.

Biden has sought to ensure that his 2030 goal, known as a Nationally Determined Contribution, or NDC, is aggressive enough to have a tangible impact on climate change efforts — not only in the U.S. but throughout the world — while also being achievable under a closely divided Congress.

The climate target is a key requirement of the 2015 Paris climate agreement, which Biden rejoined on his first day in office. It’s also an important marker as Biden moves toward his ultimate goal of net-zero carbon emissions by 2050.

Scientists, environmental groups and even business leaders had called on Biden to set a target that would cut U.S. greenhouse gas emissions by at least 50% below 2005 levels by 2030.

“Wow. That’s ambition with a capital A,” Georgia Tech climate scientist Kim Cobb

WASHINGTON —