author: PER CURIAM.

text:
    Marcel Wayne WILLIAMS, Petitioner-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, et al., Defendant-Appellee
    No. 17-1848
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 24, 2017
    Filed: April 24, 2017

      Scott Braden, Assistant Federal Public Defender, April R. Golden, Julie Vandiver, Assistant Federal Public Defender, John Charles Williams, Assistant Federal Public Defender, Federal Public Defender’s Office, Little Rock, AR, for Plaintiff-Appellant.
    Nicholas Jacob Bronni, Charles Lyford, Jennifer L. Merritt, Gary L. Sullivan, Assistant Attorney General, Attorney General’s Office, Little Rock, AR, for Defendants-Appellees.
    Before WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.
   PER CURIAM.

On April 11, 2017, Arkansas inmate Marcel Williams, who is scheduled to be executed on April 24, brought this 42 U.S.C. § 1983 action challenging the Arkansas lethal injection execution protocol. The district court denied his motion for a preliminary injunction. Williams appeals and moves for a stay of execution pending appeal. We deny the motion for stay.

In April 2015, Williams joined other Arkansas prisoners in filing an action raising a federal constitutional challenge to the recently adopted method of execution, the method Williams challenges in this case. When the State removed, plaintiffs dismissed without prejudice and refiled in state court, alleging only violations of Arkansas law. After a year of litigation, the Supreme Court of Arkansas dismissed the claim that the method of execution constituted cruel or unusual punishment in violation of the Arkansas Constitution. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346, 357 (2016), cert. denied, — U.S. -, 137 S.Ct. 1067, 197 L.Ed.2d 235 (2017). On February 27, 2017, six days after the denial of certiorari, Arkansas Governor Asa Hutchinson scheduled the executions of Williams and seven other death row prisoners.

On March 27, Williams and eight other inmates sentenced to death filed an action alleging that the method of execution violates the Eighth Amendment in all cases. The district court granted stays of execution, but we vacated the stays, concluding (i) the prisoners unreasonably delayed in bringing their federal claims, (ii) they failed to show a likelihood of success on the merits of their claim that the execution protocol was “sure or very likely to cause serious illness and needless suffering,” Glossip v. Gross, — U.S. -, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015), quoting Baze v. Rees, 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion); and (iii) the prisoners failed to make the second showing Glossip requires — a significant possibility of establishing a known, available alternative that would significantly reduce a substantial risk of severe pain. McGehee v. Hutchinson, No. 17-1804, 854 F.3d 488, 2017 WL 1404693 (8th Cir. Apr. 17), cert. denied, No. 16A1003 (16-8770), — U.S. -, 137 S.Ct. 1275, - L.Ed.2d -, 2017 WL 1414915 (April 20, 2017).

Williams filed this separate action, an “as-applied” challenge alleging that, due to his medical conditions — morbid obesity, diabetes and attendant neuropathy, hypertension, and sleep apnea — there is a substantial and unjustifiable risk that the execution method will cause him severe pain and serious harm in violation of the Eighth Amendment.

On April 21, 2017, the district court held an evidentiary hearing on Williams’s motion for a preliminary injunction. In addition to the record from the hearing in McGehee, Williams called as witnesses Dr. Joel Zivot, an anesthesiologist who also testified at the McGehee hearing, and Arkansas Department of Corrections Director Wendy Kelley. Based on his review of Williams’s medical records and a March 23 physical examination, Dr. Zivot opined that the protocol is “unlikely” to kill Mr. Williams but more likely to leave him disabled, and that if the lethal-injection protocol causes death, “Williams will experience his death as choking and suffocating.” In addition, Dr. Zivot opined that Williams’s weight — approximately 400 pounds — will make locating a vein for IV access difficult and increase the risk that midazolam, the initial drug, will not properly provide an anesthetic effect; that his obstructive sleep apnea puts him at risk of respiratory distress during the procedure; and that, given his low potassium levels, “it is possible” that the administration of potassium chloride will not actually kill him. Director Kelley testified that a pre-execution “vein check” revealed that only one of Williams’s arms had a “good vein.”

At the hearing, defendants introduced evidence that a medically-trained person aided by an ultrasound device can insert an IV line into a 400-poúnd man, and a 500 mg dose of midazolam “would render an approximately 400-pound man unconscious and unable to sense any pain or the need to breathe,” regardless of whether he is diabetic, suffers from sleep apnea, or has hypertension.

The district court denied Williams’s motion for a preliminary injunction on April 21. The court concluded that Williams unreasonably delayed in bringing his as-applied challenge, and split his claims by not raising this claim in the facial challenge in McGehee. On the merits, the court found that Williams had not identified an alternative method of execution in addition to those suggested in McGehee, did not establish what additional safeguards would significantly reduce a substantial risk of severe pain given Williams’s medical conditions, and failed to offer sufficient evidence to establish that the execution protocol as applied to him “is sure or very likely to cause severe pain.” The court further concluded that Williams’s use of piecemeal litigation and dilatory tactics was sufficient reason to deny a stay of execution. See Hill v. McDonough, 547 U.S. 573, 584-85, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2004).

We agree with the district court that Williams failed to offer evidence establishing a significant likelihood of success on the merits. “Inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir.), cert. denied, — U.S. -, 136 S.Ct. 601, 193 L.Ed.2d 480 (2015).

To succeed on the merits, Williams must show that the execution method is “sure or very likely to cause serious illness and needless suffering.” Glossip, 135 S.Ct. at 2737. Dr. Zivot opined that the execution protocol is more likely to maim than kill Williams. The State produced testimony that the execution protocol will succeed despite Williams’s health conditions. As in McGehee, the evidence is “equivocal,” lacks “scientific consensus” and presents “a paucity of reliable scientific evidence” on the impact of the lethal-injection protocol on a person with Williams’s health conditions. No. 17-1804, 854 F.3d at 492-93, 2017 WL 1404693.

To succeed on the merits of his claim, Williams must also identify a known and available alternative method of execution that would substantially reduce a significant risk of pain. See Johnson, 809 F.3d at 391. In terms of alternative protocols, Williams argues the same alternatives offered by the inmates in McGehee, which we concluded did not meet Glossip’s standard and were not likely to emerge as more than a “slightly or marginally safer alternative.” McGehee, 854 F.3d at 493, 2017 WL 1404693, quoting 135 S.Ct. at 2737. Williams argues he is not required to identify a known, available alternative method in an as-applied challenge, but we rejected that contention in Johnson, 809 F.3d at 391. In Bucklew v. Lombardi, 783 F.3d 1120, 1127 (8th Cir. 2015), we recognized that, in an as-applied challenge, evidence that the State unreasonably refused to change its regular method of execution to a feasible, readily implemented alternative that would significantly reduce the substantial risk of pain caused by a prisoner’s unique medical condition could satisfy the Glossip standard in an unusual case. Williams argues Director Kelley’s testimony regarding his “vein check” establishes this is such a case. However, rather than establish a known, available alternative, this evidence shows that the State implements its current method in a manner designed to reduce the risk of severe pain. (Director Kelley testified that all inmates are physically examined to locate infusion sites prior to execution.)

Finally, we agree with the district court that Williams unreasonably delayed in bringing this as-applied challenge. Not only did he engage in piecemeal litigation by not joining this claim when he joined the McGehee suit, but he also failed to bring this claim when he and other prisoners brought state and federal challenges to the method of execution after its adoption in 2015. He does not allege that his various health issues arose recently (other than a sleep apnea diagnosis in March 2017). If he had timely asserted an as-applied claim, there would have been time to litigate whether his conditions required or suggested modification of the protocol as applied to him. While Williams is correct that his medical conditions may evolve and worsen over time, so that a recent medical examination was needed after his execution was scheduled, timely pursuit of an as-applied challenge would have established an evidentiary base, likely making a last-minute stay of execution unnecessary. This “use of ‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny a stay.” McGehee, No. 17-1804, 854 F.3d at 492, 2017 WL 1404693, quoting Hill, 547 U.S. at 583, 126 S.Ct. 2096.

For • the foregoing reasons, we deny Williams’s motion for a stay of execution pending appeal.

      . The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.

      . As we explained in McGehee: "The State’s current lethal injection protocol calls for injection of 500 milligrams of midazolam, followed by 100 milligrams of vercuronium bromide, followed by 240 milliequivalents of potassium chloride. If the prisoner remains conscious after the injection of the midazo-lam, however, the executioner will inject another 500 milligrams of midazolam before injecting vercuronium bromide.” McGehee, No. 17-1804, 854 F.3d at 490, 2017 WL 1404693.


source: Caselaw Access Project

license: Public Domain

text:
    Marcel Wayne WILLIAMS, Petitioner-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, Defendant-Appellee
    No. 17-1825
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 24, 2017
    Filed: April 24, 2017

      Scott Braden, Assistant Federal Public Defender, Jason Phillip Kearney, Josh Lee, Assistant Federal Public Defender, Little Rock, AR, Bruce Eddy, Federal Public Defender, Fayetteville, AR, Federal Public Defender’s Office, for Petitioner-Appellant.
    Marcel Wayne Williams, Pro Se.
    Nicholas Jacob Bronni, Kelly Hook Fields, Christian Harris, Kent G. Holt, Assistant Attorney General, Adam Donner Jackson, Assistant Attorney General, Rachel Marie Kemp, Attorney General’s Office, Little Rock, AR, for Defendant-Ap-pellee.
    Before WOLLMAN, LOKEN, and SHEPHERD, Circuit Judges.
   PER CURIAM.

Arkansas inmate Marcel Williams moves for a stay of his execution scheduled to be carried out on April 24, 2017. Williams was convicted of capital murder, kidnaping, rape, and aggravated robbery and sentenced to death on January 14, 1997 in the Circuit Court of Pulaski County. The Arkansas Supreme Court affirmed his conviction and sentence on direct appeal. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999). Williams sought and was denied state post-conviction relief. Williams v. State, 347 Ark. 371, 64 S.W.3d 709 (2002). He petitioned for a federal writ of habeas corpus, which the district court granted in part, but on appeal we denied in its entirety, Williams v. Norris, 576 F.3d 850 (8th Cir. 2009), cert. denied, Williams v. Hobbs, 562 U.S. 1097, 131 S.Ct. 558, 178 L.Ed.2d 542 (2010). His first Rule 60(b) motion for relief from judgment was denied in 2015. Williams v. Norris, No. 15-2665 (Sept. 14, 2015). Williams challenged the State’s lethal injection method of execution with other Arkansas inmates in Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346, 357-60 (2016), cert. denied, — U.S. -, 137 S.Ct. 1067, 197 L.Ed.2d 235 (2017). Six days after the Supreme Court denied certiorari in Kelley, Arkansas Governor Asa Hutchinson set Williams’s execution date for April 24, 2017. In consolidated federal cases, Williams has unsuccessfully challenged the three-drug lethal injection method, see McGehee v. Hutchinson, No. 17-1804, 854 F.3d 488, 2017 WL 1404693 (8th Cir. Apr. 17, 2017) (per curiam), cert. denied, 580 U.S. -, 137 S.Ct. 1275, 197 L.Ed.2d 746, 2017 WL 1414915 (2017) (No. 16-8770), and the “frantic pace” of the execution schedule as a due process violation, Lee v. Asa Hutchinson, No. 17-1822, 854 F.3d 978, 2017 WL 1414658 (8th Cir. April 20, 2017) (per curiam). The Arkansas Parole Board denied Williams’s clemency petitions in June 2011 and April 2017.

On the eve of the scheduled execution, Williams filed this new Rule 60(b)(6) motion seeking to re-open the denial of federal habeas relief in 2009. Renewing his claims of ineffective assistance of counsel at the guilt and penalty phases of his trial, Williams argues that post-conviction counsel’s failure to properly raise these claims in the state collateral proceedings was an extraordinary circumstance resulting in procedural defaults that are now excused under recent United States Supreme Court decisions. The district court denied Rule 60(b) relief but granted a certificate of appealability. Williams appealed and now moves for a stay of execution pending full briefing of his appeal. We deny the motion for a stay.

I.

Williams abducted, robbed, raped, and murdered Stacy Erickson in November 1994. At trial, Williams was defended by Herbert Wright, who had five years criminal defense experience, including involvement in three other capital cases; Phillip Hendry, who had four years experience, including training in representing capital murder defendants, and took the lead during the penalty phase; and William James, an attorney licensed for less than one year. Given the State’s overwhelming evidence, the defense conceded guilt in its opening statement at trial but challenged the State’s evidence. At the penalty phase, the defense argued six mitigating circumstances, but introduced only the testimony of a former death row inmate as mitigation evidence. The State introduced “compelling” evidence of three aggravating circumstances. The jury found the State “proved three aggravating eircumstancés beyond a reasonable doubt, that Williams proved one mitigating circumstance — acceptance of responsibility — by a preponderance of the evidence, and that the aggravating circumstances outweighed the mitigating circumstance beyond a reasonable doubt.” Williams, 576 F.3d at 855. The jury unanimously recommended death, the trial court accepted the jury’s recommendation, and the Supreme Court of Arkansas affirmed. Williams v. State, 338 Ark. 97, 991 S.W.2d 565.

Williams then sought post-conviction relief under Arkansas Rule of Civil Procedure 37, arguing that trial counsel were ineffective because they did not properly develop and present mitigation evidence regarding his troubled past during the penalty phase. Williams was represented by William McLean, an attorney who had “practiced criminal law for over ten years, served as lead counsel in other capital murder cases, handled other post-conviction matters, and tried at least 100 jury cases.” Williams, 576 F.3d at 854-55. At the Rule 37 hearing, “all three [members of Williams’s trial team] testified that then-trial strategy was to concede guilt, in the face of the State’s overwhelming evidence,, and to seek mercy at the penalty phase.” Id. at 855. To obtain mitigation evidence, they ordered a mental evaluation of Williams and reviewed his school, medical, and prison records but made the decision not to present the evidence obtained through these investigations:

[T]hey decided not to have Williams testify at the penalty phase because they feared damaging cross-examination about his drug use and criminal history and the gruesome details of the crime.... [They] considered Williams not to be a credible witness because of the numerous fabrications in his custodial statement. Williams told counsel he did not wish to testify. Counsel twice tried to interview Williams’s mother, Sara Riggs ... [but] elected not to call Riggs during the penalty phase because she was ‘not very cooperative.’

Williams, 576 F.3d at 856. The state trial court found that Williams failed to show prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Arkansas Supreme Court affirmed, concluding Williams failed to show either deficient performance or prejudice. Williams, 64 S.W.3d 709 (2002). The Court determined that trial counsel’s decision not to present mitigation evidence was “a reasonable trial strategy” and that Williams “failed to show what the omitted testimony was and how it could have changed the outcome.” Id. at 715-16.

Williams’s amended petition for a federal writ of habeas corpus raised 20 grounds for relief. As relevant here, Claim II argued ineffective assistance of trial counsel for failure to present mitigation evidence at the penalty phase. Claim III argued ineffective assistance during the guilt phase. The district court dismissed Claim III as procedurally defaulted because Williams had not raised guilt phase ineffective assistance in state court. Williams v. Norris, No. 5:02-cv-450, 2006 WL 1699835, at *6 (E.D. Ark. June 19, 2006).

As to the penalty phase issues raised in Claim II, the district court concluded that the Supreme Court of Arkansas unreasonably determined that trial counsel’s performance was not deficient, based primarily on the assumption that counsel were unaware they could present mitigation evidence through a social history expert. Williams, 2006 WL 1699835 at *8. The court concluded the state court record was inadequate on the prejudice issue and held an evidentiary hearing at which Williams introduced mitigation evidence. Trial counsel Wright and James testified they were unaware mitigation evidence could include testimony by a social history expert. A psychologist “recounted Williams’s social history based on interviews with Williams, his mother, half-sister Peggy O’Neil and a cousin, and reviews of Williams’s medical, training school, and prison records. O’Neal, four cousins, and a training school counselor also testified.” Williams, 576 F.3d at 856. The district court concluded it was reasonably likely Williams would not have been sentenced to death had this mitigation evidence that was not before the state court been presented. Williams v. Norris, 2007 WL 1100417 at *3 (E.D. Ark. Apr. 11, 2007). The court granted federal habeas relief and set aside the death sentence.

On appeal, we reversed the grant of penalty phase habeas relief and denied Williams’s petition for a writ of habeas corpus. We concluded the evidentiary hearing the district court held was barred by 28 U.S.C. § 2254(e)(2) because there was no evidence that Williams had not been able to develop his claim in state court. We also questioned whether the social history testimony would have been admissible in state court without corroborating testimony (Williams refused to testify and his mother was uncooperative and not credible), and whether its admission would have changed the outcome, because it was based on a record damaging to Williams. We concluded the state court did not unreasonably apply Strickland in finding that Williams failed to show prejudice from allegedly ineffective assistance at the penalty phase. Although we ruled based on the prejudice prong of Strickland, we noted that the district court, in concluding counsel were guilty of deficient performance, assumed that Hendry, lead trial counsel at the penalty phase, was ignorant of the ability to present social history mitigation evidence, based solely on the testimony of his co-counsel; “we are inclined to think the district court clearly erred” in that assumption. Williams, 576 F.3d at 856 n.1. The Supreme Court denied Williams’s petition for a writ of certiorari. Williams v. Hobbs, 562 U.S. 1097, 131 S.Ct. 558, 178 L.Ed.2d 542 (2010).

II.

In this second motion for Rule 60(b)(6) relief from the denial of federal habeas relief, Williams seeks to have his case re-opened to reconsider his claims of ineffective assistance at the guilt and penalty phases of his trial. He moves for a stay of execution pending this appeal. He first argues that, because the district court issued a certificate of appealability (COA), a stay is required by Eighth Circuit Rule 47A, which provides that “in an in forma pauperis appeal in which a [COA] has been issued, the court will afford 14 days’ notice before entering summary disposition if the briefs have not been filed.” This contention is without merit. Rule 47A says nothing about a stay pending appeal, which is not a “summary disposition.” More importantly, the argument is contrary to controlling Supreme Court decisions. “[A] stay of execution is an equitable remedy. It is not available as a matter of right.... Thus, like other stay applicants, inmates seeking time to challenge the manner in which the State plans to execute them must satisfy all of the requirements for a stay, including a showing of a significant possibility of success of the merits.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006); see Davis v. Kelley, 855 F.3d 833, 2017 WL 1382558 (8th Cir. 2017) (denying application for a stay of execution pending full briefing of Rule 60(b) motion after district court granted COA).

Williams primarily argues that he qualifies for relief under Rule 60(b) because two Supreme Court decisions issued after the denial of federal habeas relief in 2009 years earlier provide that ineffective assistance of post-conviction counsel is an equitable exception that can excuse procedural default in some circumstances, Martinez v. Ryan, 566 U.S. 1, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). Further, the recent decision in Buck v. Davis, — U.S. -, 137 S.Ct. 759, 197 L.Ed.2d 1 (2017), held that a petitioner may be entitled to Rule 60(b) relief where his claim to ineffective assistance of counsel was procedurally defaulted in post-judgment proceedings. Williams argues he presents extraordinary circumstances warranting a stay of execution and Rule 60(b) relief on the merits because the only federal court to consider his additional evidence of mitigating circumstances, which was not presented to the state courts because of post-conviction counsel’s ineffectiveness, granted the writ. Like the district court, we conclude a stay of execution should be denied because Williams has little if any likelihood of success on the merits of these Rule 60(b) claims. The procedural analysis under governing federal habeas law is somewhat different for the penalty phase and the guilt phase issues.

A. Penalty Phase Claims. The premise of Williams’s motion for stay of execution is that his claims of ineffective assistance of trial counsel during the penalty phase were procedurally defaulted. This is a necessary premise because 28 U.S.C. § 2244(b)(1) bars successive or second claims that were presented in a prior application. When a petitioner seeks Rule 60(b) relief based on a subsequent change in substantive law, “any claim that has already been adjudicated in a previous petition must be dismissed” under 28 U.S.C. § 2244(b)(1). Gonzalez v. Crosby, 545 U.S. 524, 529, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). A Rule 60(b) motion brings such a claim “if it attacks the federal court’s previous resolution of a claim on the merits, since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief.” Id. at 532, 125 S.Ct. 2641.

In Williams v. Norris, 576 F.3d at 857, we unambiguously stated that “the state courts ruled on the merits of this claim” of ineffective assistance of trial counsel during the penalty phase. Accordingly, we reviewed the state court’s determination under the deferential standard required under AEDPA, including whether an evidentiary hearing in federal court was barred by 28 U.S.C. § 2254(e)(2), and held that the state court had not unreasonably applied federal law on the merits of Williams’s Strickland claim. The claim was raised by post-conviction counsel in the state courts. It was not procedurally defaulted for purposes of federal habeas review, like the claims of ineffective assistance of trial counsel in Martinez and Trevino. Thus, Williams’s Rule 60(b) motion is a substantive attack on our 2009 determination that he was not entitled to federal habeas relief on the merits of his penalty phase ineffective assistance_ of counsel claim. As such, the Rule 60(b) claim is absolutely barred by 28 U.S.C. § 2244(b)(1) as construed in Gonzalez, unless Williams obtains authorization to file a second or successive habeas petition under § 2244(b)(2), which he has not sought. 545 U.S. at 529, 125 S.Ct. 2641.

Even if we did not conclude that the penalty phase claim is barred as a successive or second habeas petition, Williams is still not entitled to a stay because he does not show a significant likelihood of succeeding on the merits. See Hill, 547 U.S. at 584, 126 S.Ct. 2096 (standard for stay of execution). To qualify for Rule 60(b) relief, Williams must show that his motion is made within a reasonable amount of time and presents extraordinary circumstances. See Davis, 855 F.3d at 835, 2017 WL 1382558 at *2. “Such circumstances will rarely occur in the habeas context.... Rule 60(b) proceedings are subject to only limited and deferential appellate review.” Gonzalez, 545 U.S. at 535, 125 S.Ct. 2641.

Williams argues that the change'in ha-beas law effected by Martinez and Trevino, coupled with his prior inability to bring the “true merits” of his penalty phase claim before the federal courts, is an extraordinary circumstance. He cites the Supreme Court’s recent decision in Buck, where the Court concluded there were extraordinary circumstances that warranted issuing a COA because Buck’s trial attorney had introduced penalty phase testimony suggesting he “may have been sentenced to death in part because of his race.” 137 S.Ct. at 778. Williams’s claim of extraordinary circumstances is hardly comparable. The Arkansas Supreme Court considered the merits of his penalty phase claim and concluded that trial counsel’s decision not to introduce mitigation evidence did not amount to deficient performance, and also found a lack of prejudice under Strickland. We found the ruling on prejudice was reasonable, and we questioned the district court’s assumption that Williams’s lead penalty phase trial counsel did not understand that expert mitigation testimony was admissible, an assumption critical to the district court’s decision that the Arkansas Supreme Court’s deficient performance determination was unreasonable. See Williams v. Norris, 576 F.3d at 856 n.1.

Further, the district court did not abuse its discretion in finding Williams did not present his Rule 60(b) motion within a reasonable time. See Moses v. Joyner, 815 F.3d 163, 166 (4th Cir. 2016). Williams previously filed a Rule 60(b) motion for relief in 2015, well after the alleged “jurisdictional leap” in Martinez, and did not raise a Martinez-based claim. Instead, he sought Rule 60(b) relief based on Martinez on the eve of his scheduled execution. “[U]se of ‘piecemeal litigation’ or dilatory tactics is sufficient reason by itself to deny a stay.” McGehee, No. 17-1804, 854 F.3d 488, 492, 2017 WL 1404693, quoting Hill, 547 U.S. at 584-85, 126 S.Ct. 2096. Buck recently clarified that, in extraordinary circumstances, Rule 60(b) may be the basis for a claim of procedural default caused by post-conviction counsel’s ineffective assistance, but Williams cites Martinez as the decision that “dramatically altered habeas corpus procedure” and “carries much weight in [his] ‘extraordinary circumstances’ analysis.” His Martinez claim is years untimely.

B. Guilt Phase Claims. Williams identifies the following as establishing ineffective assistance of counsel during the guilt phase of his trial: (1) ineffective questioning during voir dire of potential jurors regarding their ability' to consider mitigation evidence; (2) failure to remove potential juror Kay Barfield who stated she would not consider mitigation; (3) failing to object to victim impact evidence; (4) failing to request funding for an expert to examine the state’s DNA evidence and failing to cross-examine the state’s DNA expert; and (5) failing to properly pursue a challenge to the prosecutor’s allegedly racially discriminatory strikes. The Arkansas Supreme Court held that these post-conviction guilt-phase claims were procedurally defaulted. Therefore, we agree with the district court that these Rule 60(b) claims based on Martinez and Trevino are not successive under Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641, 162 L.Ed.2d 480 (2005). However, like the district court, we conclude that Williams has not presented a basis for relief under Rule 60(b)(6), because he did not show extraordinary circumstances meriting such relief and because his Rule 60(b) motion was filed years after Martinez, not within a reasonable time as Rule 60(b) requires. See Fed. R. Civ. Pro. 60(c)(1).

Lacking a reasonable likelihood of success on his claims for Rule 60(b) relief based on ineffective assistance of counsel during either the penalty phase or the guilt phase of his trial, Williams is not entitled to an extraordinary stay of execution.

      . The Honorable J. Leon Holmes, United States District Judge for the Eastern District of Arkansas.


text:
    Jack Harold JONES, Jr., Plaintiff-Appellant v. Wendy KELLEY, Director, Arkansas Department of Correction, in her official capacity; Rory Griffin, Deputy Director, Arkansas Department of Correction, in his official capacity; Dale Reed, Chief Deputy Director, Arkansas Department of Correction, in his official capacity, Defendants-Appellees

      No. 17-1849
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 22, 2017
    Filed: April 24, 2017

      Jeffrey M. Rosenzweig, Little Rock, AR, for Plaintiff-Appellant.
    Nicholas Jacob Bronni, Christine Ann Cryer, Assistant Attorney General, Charles Lyford, Jennifer L. Merritt, Gary L. Sullivan, Assistant Attorney General, Attorney General’s Office, Little Rock, AR, for Defendants-Appellees.
    Before RILEY, GRUENDER, and BENTON, Circuit Judges.
   PER CURIAM.

Jack Harold Jones, Jr. appeals the district court’s order denying a preliminary injunction, and he moves for a stay of his execution scheduled for tonight, April 24, 2017. Jones argues that, because of his specific medical conditions, the administration of the Arkansas Department of Correction’s (“ADC”) lethal-injection protocol will inflict cruel and unusual punishment on him in violation of the Eighth Amendment. We affirm the district court’s order and deny his motion for a stay.

I.

On June 6, 1995, Jones entered an accounting office where Mary Phillips worked as a bookkeeper. On this day, Mary’s eleven-year-old daughter, Lacy, was with her. Jones robbed the business at gunpoint, then took Mary and Lacy into a small break room. He tied Lacy to a chair in the bathroom adjacent to the break room, then returned to Mary. While Lacy sat, bound to a chair, in an adjacent room, Jones bludgeoned, raped, and strangled Mary to death. Afterwards, Jones severely beat and strangled Lacy, leaving her for dead. Lacy later regained consciousness, identified her assailant to police, and testified at Jones’s trial. Jones was convicted of capital murder, rape, and attempted capital murder, and he was sentenced to death in 1996. Jones v. State, 340 Ark. 1, 8 S.W.3d 482, 483-86 (2000); Jones v. State, 329 Ark. 62, 947 S.W.2d 339, 340 (1997).

Twenty-one years later, Jones still has not been executed. Instead, Jones, along with other death-row inmates, has delayed his execution through a series of lawsuits challenging different aspects of Arkansas’s method-of-execution statute and the ADC’s lethal-injection protocol. See, e.g., Hobbs v. McGehee, 2015 Ark. 116, 458 S.W.3d 707 (Ark. 2015); Hobbs v. Jones, 2012 Ark. 293, 412 S.W.3d 844 (Ark. 2012); Ark. Dep’t of Corr. v. Williams, 2009 Ark. 523, 357 S.W.3d 867 (Ark. 2009). Due in part to this stream of litigation, Arkansas has not carried out an execution since 2005 — until last week.

In 2015, the Arkansas legislature amended its method-of-execution statute to authorize the use of a three-drug protocol: midazolam, followed by vecuronium bromide, followed by potassium chloride. See Ark. Code Ann. § 5-4-617 (2015). In April 2015, Jones and other inmates challenged the legality of this protocol under the Arkansas Constitution in state court. Last year, the Arkansas Supreme Court dismissed their claims, and the United States Supreme Court denied certiorari on February 21, 2017. Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346, 355-60 (Ark. 2016), cert. denied, — U.S. -, 137 S.Ct. 1067, 197 L.Ed.2d 235 (2017). Six days later, on February 27, 2017, Arkansas Governor Asa Hutchinson scheduled executions for Jones and seven other inmates to occur in April 2017.

On March 27, 2017, three weeks before the first scheduled execution, Jones and the other seven inmates initiated yet another lawsuit challenging the lethal-injection protocol. This time, they brought an action in federal court under 42 U.S.C. § 1983, alleging that the protocol violates the Eighth and Fourteenth Amendments of the United States Constitution. As they did in state court, the inmates argued that the protocol will result in cruel and unusual punishment because midazolam cannot render the inmates insensate to the pain caused by the other two drugs in the protocol. On April 15, 2017, after conducting a four-day evidentiary hearing, the district court entered a preliminary injunction staying all of the executions while the case proceeded. We vacated the district court’s stays of execution in McGehee v. Hutchinson, No. 17-1804, 854 F.3d 488, 494, 2017 WL 1404693 (8th Cir. 2017) (en banc) (per curiam).

In McGehee, we held that the inmates were not entitled to a stay for three reasons. First, we held that the inmates’ use of “dilatory tactics” was sufficient reason to deny a stay. Id. 854 F.3d at 492. Second, we held that “[t]he equivocal evidence recited by the district court falls short of demonstrating a significant possibility that the prisoners will show that the Arkansas protocol is ‘sure or very likely’ to cause severe pain and needless suffering.” Id. 854 F.3d at 493 (quoting Glossip v. Gross, - U.S. -, 135 S.Ct. 2726, 2737, 192 L.Ed.2d 761 (2015)). Third, we held that “the availability of the several [alternative] methods cited by the district court is too uncertain to satisfy the rigorous standard under the Eighth Amendment.” Id. 854 F.3d at 493.

Shortly thereafter, Jones filed this as-applied challenge to the protocol and requested a preliminary injunction. Jones argued that even if the protocol does not violate his fellow inmates’ Eighth Amendment rights, it violates his Eighth Amendment rights because his specific medical conditions create a risk that the lethal-injection protocol will affect him differently than an average healthy inmate and will cause him severe pain. After conducting an evidentiary hearing, the district court denied Jones’s motion for a preliminary injunction. Jones now appeals and moves for a stay of his execution.

II.

“We review a district court’s denial of a preliminary injunction for an abuse of discretion.” Powell v. Noble, 798 F.3d 690, 697 (8th Cir. 2015); see also Jones v. Hobbs, 604 F.3d 580, 582 (8th Cir. 2010) (per curiam). “An abuse of discretion occurs where the district court rests its conclusion on clearly erroneous factual findings or erroneous legal conclusions.” Powell, 798 F.3d at 697 (quotations omitted).

“[A] stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State’s strong interest in enforcing its criminal judgments without undue interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006). “A court considering a stay must ... apply ‘a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay.’ ” Id. (quoting Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004)). To prevail, inmates “must satisfy all of the requirements for a stay, including a showing of a significant possibility of success on the merits.” Id. To succeed on the merits of a method-of-execution claim, inmates must satisfy a two part test: they must show that “the State’s lethal injection protocol creates a demonstrated risk of severe pain” and that “the risk is substantial when compared to the known and available alternatives.” Glossip, 135 S.Ct. at 2737 (quoting Baze v. Rees, 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008)). Whether a protocol creates a demonstrated risk of severe pain and whether that risk is substantial when compared to known and available alternatives are factual findings that we review for clear error. Id. at 2738-39.

Here, the district court held that all three of the reasons we provided in McGe-hee supported denying Jones’s motion for a preliminary injunction. We agree.

A.

First, Jones’s delay in bringing his as-applied claim is sufficient reason to deny a’ stay. As we noted in McGehee, “[t]he prisoners voluntarily elected to fore-go their federal claim in April 2015 and chose instead to challenge the method of execution exclusively in state court under the Arkansas Constitution.” McGehee, 854 F.3d at 491. Indeed, the inmates’ federal constitutional claim “could have been litigated at the same time as the state constitutional claim beginning in April 2015.” Id. Thus, we concluded that “the prisoners’ use of ‘piecemeal litigation’ and dilatory tactics is sufficient reason by itself to deny a stay.” Id. (quoting Hill, 547 U.S. at 584-85, 126 S.Ct. 2096). The same reasoning applies to Jones’s decision to delay bringing his as-applied claim.

Jones contends that, unlike the facial challenge in McGehee, he could not have litigated his as-applied claim at the same time as the state constitutional claim in April 2015 because the effect of his specific medical conditions on his execution could not be assessed until the execution date was set. He suggests that his “health conditions should be analyzed as analogous to a Ford v. Waimvright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), competency to be executed claim.” To be sure, we have indicated that such competency-to-be-executed claims become ripe only upon the setting of the execution date. Nooner v. Norris, 499 F.3d 831, 834 (8th Cir. 2007). However, this rule does not necessarily extend to all claims that an inmate is unfit to be executed. In fact, we recently declined to extend this rule to encompass claims by inmates alleging that they may not be executed due to intellectual disabilities. Davis v. Kelley, No. 04-2192, slip op. at 7, 2017 WL 1386022 (8th Cir. Apr. 17, 2017) (per curiam).

Nevertheless, even assuming that Jones’s claim did not become ripe until the execution date was set in February 2017, we conclude that he was not diligent in bringing his as-applied claim. Jones’s expert, Dr. Joel Zivot, evaluated his medical conditions on March 23, 2017, four days before the complaint in McGehee was filed on March 27. As the district court noted, Jones provides no good reason why his as-applied claim could not have been included in McGehee or been filed at the same time as McGehee Thus, he could have brought this claim significantly earlier than April 17, 2017 — only one week before his scheduled execution. Instead, Jones split his claims and waited until the last minute before he filed his as-applied claim. This justifies denying his request for a stay. See Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”). Although Jones cites Bucklew v. Lombardi for the proposition that claim-splitting is permitted when bringing a separate as-applied challenge to a method of execution, there we merely noted that it was not certain that claim preclusion would bar an as-applied challenge brought after a facial challenge — we never indicated that it would be improper to deny a stay even if an inmate delayed bringing the as-applied challenge. 783 F.3d 1120, 1122 n.1 (8th Cir. 2015) (en banc). Therefore, we refuse to allow Jones once again to delay the administration of justice through piecemeal litigation and dilatory tactics.

B.

Second, the district court found that Jones failed to establish a significant possibility that he could show that, as applied to him, “the State’s lethal injection protocol creates a demonstrated risk of severe pain.” See Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 61, 128 S.Ct. 1520). This was not clear error. In McGe-hee, we held that the inmates failed to satisfy their burden in this regard. No. 17-1804, 854 F.3d at 491-93. Further, we note that the ADC executed one inmate, Ledell Lee, under this protocol several days ago. According to witnesses, including ADC Director Wendy Kelley, at no time did Lee show any signs of physical distress, such as gasping, groaning, or struggling against the restraints. Cf. In re Ohio Execution Protocol Litig., No. 2:11-cv-1016, — F.3d -, -, 2017 WL 378690, at *27 (S.D. Ohio Jan. 26, 2017) (citing testimony by inmates’ expert witness that, if an inmate’s “brain was still active enough to [speak, writhe, clench his fists, and try to lift himself off the table] after administration of the drugs, then the drugs were not having the intended effect”). The evidence that Jones provides regarding his specific medical conditions falls short of distinguishing himself from Lee or from any other inmates, and it fails to demonstrate that the protocol will create a demonstrated risk of severe pain if applied to him.

Jones provided evidence in the form of testimony by Dr. Zivot. Dr. Zivot testified that Jones suffers or likely suffers from diabetes, hypertension, peripheral neuro-pathy, chronic pain, and sleep apnea. He expressed concern over Jones’s use of methadone and gabapentin, which are two medications prescribed to treat his medical conditions. Dr. Zivot explained that patients who take methadone and gabapentin will experience a decreased sensitivity to drugs like midazolam. As a result, he opined that there is a “real possibility” that the midazolam will be ineffective in rendering Jones insensate. R. Doc. 23, at 70-71. Dr. Zivot further opined that, because of Jones’s neuropathy, the consciousness check meant to ensure that the mi-dazolam worked as intended “may fail to be certain.” R. Doc. 23, at 71. Thus, he testified that, if the midazolam does not work as intended, the consciousness check does not reveal this, and the execution proceeds, then Jones’s death would be “as a consequence of suffocation where he is aware that he is suffocating,” which he opined would be “extremely painful and terrifying.” R. Doc. 23, at 71. In response, the State provided declarations of two experts asserting that Jones’s medical conditions would not inhibit or alter the desired effects of the midazolam.

We conclude that Dr. Zivot’s testimony that there is a “real possibility” that the midazolam will be ineffective and that the consciousness check “may fail to be certain” ultimately “falls short of demonstrating a significant possibility that [Jones] will show that the Arkansas protocol is ‘sure or very likely’ to cause severe pain and needless suffering” — especially in light of the declarations provided by the State’s experts. See McGehee, No. 17-1804, 854 F.3d at 494. Thus, the district court did not clearly err in finding that Jones failed to meet his burden in this regard. See In re Ohio Execution Protocol, No. 17-3076, — F.3d -, -, 2017 WL 1457946, at *7 (6th Cir. Apr. 25, 2017) (explaining that the Supreme Court in Glossip determined only that the district court “did not clearly err by finding that a particular group of petitioners failed to meet their burden at the preliminary-injunction stage to show that they were likely to succeed on their claim that use of midazolam was unconstitutional”).

C.

Third, the district court found that Jones failed to establish that there was a significant possibility that he could identify an alternative method of execution that is “feasible, readily implemented, and in fact significantly reduee[s] a substantial risk of severe pain.” See Glossip, 135 S.Ct. at 2737 (quoting Baze, 553 U.S. at 52, 128 S.Ct. 1520). This was not clear error. In McGe-hee, we clarified that “the State must have access to the alternative and be able to carry out the alternative method relatively easily and reasonably quickly.” No. 17-1804, 854 F.3d at 492-93. Applying this standard, we held that the inmates failed to meet their burden with respect to the two alternatives that Jones now identifies: a single dose of pentobarbital and the firing squad. Id. 854 F.3d at 493-94. We need not revisit these alternatives, as they were fully litigated in McGehee, and we concluded that they are not known and available alternatives. See id.; Turner v. U.S. Dep’t of Justice, 815 F.3d 1108, 1111 (8th Cir. 2016). And, contrary to Jones’s assertion, any subsequent statements that the ADC has made regarding whether it is legally authorized to disregard drug manufacturers’ restrictions on using drugs for lethal injections do not show that pento-barbital is available to the ADC. The evidence in McGehee showed that the ADC has been unable to obtain pentobarbital, regardless of whether the ADC may disregard manufacturers’ restrictions on what it may do with drugs that it successfully obtains. No. 17-1804, 854 F.3d at 493-94.

In an attempt to overcome this deficiency, Jones cites a concurring opinion in Bucklew to support the proposition that, because he raises an as-applied challenge, the requirement to identify an alternative method of execution simply does not apply to him. See 783 F.3d at 1129 (Bye, J., concurring) (“It is my position a death row inmate alleging an Eighth Amendment as-applied challenge need not plead' a readily available alternative method of execution.”). However, as the majority opinion in Bucklew made clear, an inmate raising an as-applied challenge still must identify a “feasible, readily implemented alternative that would significantly reduce the substantial risk of pain.” See id. at 1127 (quotations omitted). Therefore, the district court did not clearly err in finding that Jones failed to meet his burden in this regard, and it did not abuse its discretion in denying his motion for a preliminary injunction.

III.

Accordingly, we affirm the district court’s order and deny a stay of execution.

      . The Honorable Kristine G. Baker, United States District Judge for the Eastern District of Arkansas.

      . On appeal, Jones suggests that the district court clearly erred in failing to account for the time pressure that the execution schedule placed on his counsel. However, Jones did not present this time-pressure argument to the district court, and it is waived on appeal. See United States v. Rees, 447 F.3d 1128, 1130 (8th Cir. 2006). Moreover, as Jones admits, the district court was aware of counsel’s burden, having made factual findings regarding it in McGehee. Thus, even though Jones did not make this argument to the district court, we find no reason to believe that the district court failed to account for the time pressure placed on counsel before finding that Jones could have brought his claim earlier.

      . For the first time on appeal, Jones also points to sevoflurane gas as an alternative method of execution. Because he did not make this argument before the district court, it is waived. See Rees, 447 F.3d at 1130. In any case, we also rejected sevoflurane gas as an alternative method in McGehee, No. 17-1804, 854 F.3d at 493-94.


author: SIPPEL, District Judge.

text:
    Donald FENTRESS, Plaintiff-Appellant v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant-Appellee
    No. 16-1933
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 11, 2017
    Corrected: April 25, 2017
    Filed: April 25, 2017

      Eugene Gregory Wallace, Campbell University School of Law, Raleigh, NC, Stephanie Bartels Wallace, Bartels Law Firm, Jonesboro, AR, for Plaintiff-Appellant.
    Solomon Matthew Boyle, Special Assistant U.S. Attorney, Adrial B. McField, Special Assistant U.S. Attorney, Eric Bradford Tucker, Assistant Regional Counsel, Social Security Administration, Office of General Counsel Region VI, Dallas, TX, Stacey E. McCord, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Arkansas, Little Rock, AR, Michael McGaughran, for D efendant-App el-lee.
    Before SMITH and KELLY, Circuit Judges, and SIPPEL, District Judge.

      . Nancy A. Berryhill has been appointed to serve as Acting Commissioner of Social Security, and is substituted as appellee pursuant to Federal Rule of Appellate Procedure 43(c).

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

      . The Honorable Rodney W. Sippel, Chief Judge, United States District Court for the Eastern District of Missouri, sitting by designation.

   SIPPEL, District Judge.

Donald Fentress appeals the decision of the district court affirming the Commissioner’s partial denial of his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) benefits under the Social Security Act. See 42 U.S.C. §§ 401, 1381. The Commissioner found Fentress was not disabled from September 22, 2005 through August 23, 2012, but became disabled on August 24, 2012. Because the decision of the Commissioner is supported by substantial evidence on the record as a whole, we affirm.

I. Background

Fentress suffers from asthma, chronic obstructive pulmonary disease, high blood pressure, depression, hepatitis C, diabetes, liver damage, hepatomegaly, uveitis of the left eye, coronary artery disease, and degenerative disc disease. He applied for DIB and SSI benefits on July 27, 2006, alleging an onset date of September 22, 2005. After his claims were denied at the administrative level, Fentress sought review in district court, which remanded his claims to the Commissioner for further proceedings. Fentress then filed new applications for DIB and SSI benefits, alleging an onset date of September 30, 2009. These applications were consolidated with his initial applications, and on December 1, 2011, an administrative law judge (“ALJ”) denied all of Fentress’s claims. Fentress pursued an administrative appeal, and in November 2013, the Appeals Council remanded the case to the ALJ for further proceedings. On April 7, 2014, a different ALJ considered Fentress’s claims and issued a partially favorable decision, finding him disabled since August 24, 2012, but not disabled from September 30, 2009 through August 23, 2012.

On July 15, 2015, the Appeals Council reviewed Fentress’s case and issued its own opinion. After consideration of all of Fentress’s applications, the Appeals Council agreed with the ALJ that Fentress was disabled as of August 24, 2012, but concluded that he was not disabled from the initial onset date of September 22, 2005, through August 23, 2012.

Like the ALJ before it, the Appeals Council evaluated Fentress’s disability claims according to the five-step sequential evaluation process prescribed by the Social Security Regulations. See Goff v. Barnhart, 421 F.3d 785, 789-90 (8th Cir. 2005); 20 C.F.R. § 404.1520(a)-(g). At step four of the analysis, the Appeals Council determined that Fentress retained the residual functional capacity (“RFC”) to perform light work, with modifications. See 20 C.F.R. § 404.1545(a) (defining RFC as “the most [a claimant] can still do despite” his “physical or mental limitations”). In reaching its decision, the Appeals Council reviewed, and ultimately discounted, an opinion rendered by Fentress’s treating physician, Bradford Waters, M.D., that chronic pain and fatigue would prevent Fentress from working. The Appeals Council assigned little weight to the opinion of Dr. Waters as inconsistent with other substantial evidence in the record, including numerous unremarkable physical examinations, Fentress’s own denials of pain, and the opinion of a consulting physician, Bruce Randolph, M.D., who examined Fentress.

Based on the testimony of a vocational expert, the Appeals Council found that there were a significant number of jobs in the national economy which Fentress could perform with his modified light work RFC prior to August 24, 2012. Therefore, at step five of the analysis the Appeals Council concluded that Fentress was not disabled from his initial alleged onset date of September 22, 2005, through August 23, 2012, but was disabled as of August 24, 2012. This decision stands as the final decision of the Commissioner.

Fentress then sought review in the district court under 42 U.S.C. § 405(g). The district court affirmed the decision of the Commissioner. Fentress now appeals, arguing that the Commissioner erred in discounting the opinion of his treating physician and when formulating his RFC.

II. Discussion

“We review the district court’s decision upholding the denial of social security benefits de novo.” McDade v. Astrue, 720 F.3d 994, 997-98 (8th Cir. 2013). “We will uphold the [Commissioner’s] decision to deny benefits if that decision is supported by substantial evidence in the record as a whole.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). We consider both evidence that detracts from the Commissioner’s decision, as well as evidence that supports it, see Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011), but we will not reverse simply because some evidence supports a conclusion other than that reached by the Commissioner. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).

Fentress argues that the Commissioner erred in the determination that he could perform light work prior to August 24, 2012. The RFC assessment must be based on “all the relevant evidence in [the] case record.” 20 C.F.R. § 404.1545(a). In evaluating the RFC assessment, “we consider all of the evidence that was before the [Commissioner], but we do not reweigh the evidence, and we defer to the [Commissioner’s] determinations regarding the credibility of witnesses so long as such determinations are supported by good reasons and substantial evidence.” Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The record must include some medical evidence which supports the RFC. Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000).

Fentress contends that the Commissioner improperly discounted the opinion of Dr. Waters, who opined that Fen-tress was “unable to perform sustained gainful employment” due to pain and fatigue. At the time this opinion was rendered, Dr. Waters had only been treating Fentress for a few months. See 20 C.F.R. § 404.157(c) (length of treatment relationship one factor to consider when weighing doctor’s opinion). The Commissioner considered Dr. Waters’s opinion, but ultimately assigned it little weight as inconsistent with other, substantial evidence in the record. “A treating physician’s opinion should not ordinarily be disregarded and is entitled to substantial weight.” Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000). However, the Commissioner “may discount or even disregard the opinion of a treating physician where other medical assessments are supported by better or more thorough medical evidence.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (quoting Goff, 421 F.3d at 790). A physician’s opinion that a claimant is incapable of gainful employment is often not entitled to significant weight. Bradley v. Astrue, 528 F.3d 1113, 1116 (8th Cir. 2008).

Here, the Commissioner cited other, substantial evidence in the record that was inconsistent with Dr. Waters’s evaluation, including physical examinations during the same time period which showed normal muscle strength, range of motion, and no pain or weakness in extremities, as well as Fentress’s own contemporaneous reports denying problems with standing, walking, vision, weakness, dizziness, pain, or loss of motor skills. See Goff, 421 F.3d at 792 (lack of corroborating medical evidence is one factor to consider in evaluating subjective complaints of pain). In discounting Dr. Waters’s opinion, the Commissioner also cited the opinion of Dr. Randolph, who found after examination that Fentress’s extremities, strength, gait, and limb functions were normal and unimpaired. Diagnostic test results also demonstrated that Fentress’s symptoms were generally well-controlled when he abstained from illegal drug use and was compliant with treatment recommendations. See Wildman, 596 F.3d at 966 (claimant’s noncompliance with treatment recommendations may be taken into account when deciding whether to give treating physician’s opinion controlling weight). Fentress’s daily activities, which included fishing and dog training, were likewise inconsistent with Dr. Waters’s opinion regarding Fentress’s limitations. It is the function of the Commissioner to weigh conflicting evidence and to resolve disagreements among physicians. Kirby, 500 F.3d at 709.

After reviewing the entire record in this case and considering the objective test results, Fentress’s subjective reports and complaints of pain, as well as the opinions of treating and consulting physicians, the Commissioner concluded that Fentress was able to perform light work, with limitations, for a period of time before he became disabled under the Guidelines. The Commissioner did not simply adopt a light work RFC wholesale, but rather restricted Fentress’s RFC based on his credible limitations of record. For these reasons, we find the Commissioner’s determination to be within a reasonable “zone of choice.” See Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008).

While it is not surprising that, in an administrative record which exceeds 1,500 pages, Fentress can point to some evidence which detracts from the Commissioner’s determination, good reasons and substantial evidence on the record as a whole support the Commissioner’s RFC determination and the decision to discount Dr. Waters’s opinion. See Igo v. Colvin, 839 F.3d 724, 731 (8th Cir. 2016). “We may not reverse that decision simply because we would have reached a different conclusion than [the Commissioner] or because substantial evidence supports a contrary conclusion.” Id. at 728 (citing Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014)); Goff, 421 F.3d at 789 (“If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [Commissioner’s] findings, the court must affirm the [Commissioner’s] decision.” (citing Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001))).

III. Conclusion

Because the Commissioner’s decision to deny benefits prior to August 24, 2012, is supported by substantial evidence on the record as a whole, the judgment of the district court is affirmed.

      .The Honorable Joe J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas, to whom the case was referred for final disposition by consent of the parties pursuant to 28 U.S.C..§ 636(c).

      . The first step of the analysis requires the Commissioner to decide whether a claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(b). If he is not, the Commissioner moves on to the second step of the analysis, which requires her to assess whether a claimant has a severe impairment that “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If severe impairments are found, the Commissioner determines at the third step whether the claimant’s impairments meet or equal the criteria of a “listed impairment,” which is presumed to be disabling. 20 C.F.R. § 404.1520(d). If no listed impairments are found, the Commissioner assesses a claimant's residual functional capacity and considers whether a claimant can perform past relevant work. 20 C.F.R. § 404.1520(e)-(f). If he cannot, the Commissioner decides at the fifth and final step of the analysis whether the claimant is able to do any other work considering his residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(g). If he cannot, the claimant is disabled.

      . The Regulations define "light work” as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b).


author: WOLLMAN, Circuit Judge. SMITH, Circuit Judge,

text:
    Mark MOORE, Plaintiff-Appellant Michael Harrod; William Chris Johnson, Plaintiffs v. Mark MARTIN, in his official capacity as Secretary of State for the State of Arkansas, Defendant-Appellee
    No. 15-3558
    United States Court of Appeals, Eighth Circuit.
    Submitted: December 14, 2016
    Filed: April 26, 2017

      Counsel who presented argument on behalf of the appellant was James Carter Linger, of Tulsa, OK.
    Counsel who presented argument on behalf of the appellee was AJ Kelly, of Little Rock, AR.
    Before WOLLMAN, SMITH, and BENTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   WOLLMAN, Circuit Judge.

This appeal concerns certain Arkansas statutes that set the filing deadline for individuals who wish to appear on the general election ballot as independent candidates. Mark Moore, along with two other individuals, filed suit in federal district court against Mark Martin, in his official capacity as Arkansas Secretary of State, seeking a declaratory judgment that the filing deadline is unnecessarily early and thus violates the First and Fourteenth Amendments and 42 U.S.C. § 1983. The suit seeks to enjoin Martin from enforcing this deadline against Moore. Moore appeals from the district court’s orders that denied his motion for summary judgment, granted Martin’s motion for summary judgment, and denied Moore’s motion for reconsideration. We affirm in part and reverse in part.

I. Background

Under Arkansas law, a person seeking to include his or her name on the general election ballot as an independent candidate for any office other than President or Vice President of the United States must submit a petition to the Arkansas Secretary of State. Ark. Code Ann. § 7-7-103(a)(l). Petitions for statewide office must be signed by the lesser of three percent of the qualified electors of the state or ten thousand qualified electors. Id. § 7-7-103(b)(l)(B). Independent candidate petitions must be submitted during the same period as political party candidate petitions. This “party filing period” begins one week prior to the first day in March and ends the first day in March. Id §§ 7-7-103(a)(l), 7-7-203(c)(1). Petitions may not be circulated for signatures earlier than ninety days pri- or to the March 1 deadline. Id. § 7-7-103(b)(3)(B). The general election is held on the Tuesday following the first Monday in November. Id. § 7-5-102. For political party candidates, the general primary election is held on the second Tuesday in June and the preferential primary election is held three weeks earlier. Id. § 7-7-203(a)-(b). The Secretary and county clerks must certify to the county boards of election commissioners the names of all candidates to be placed on the general election ballot not less than seventy-five days before the general election. Id. § 7-5-203. Upon timely request, states must transmit absentee ballots to absent military voters and overseas voters at least forty-five days before an election for federal office. 52 U.S.C. § 20302(a)(8).

The Secretary must also process requests for inclusion on the ballot for nonpartisan offices, including judges and prosecuting attorneys. The general election for nonpartisan offices is held on the same day as the preferential primary election for partisan offices, and any runoff election is held on the same day as the November general election. Ark. Code Ann. § 7-10-102. A person may have his or her name placed on the ballot for nonpartisan office by paying a filing fee .during the party filing period or by submitting a petition, signed by a requisite number of electors, during a period beginning fifty-three days before the first day of the party filing period and ending forty-six days before the first day of the party filing period. Id. § 7-10-103(a)-(c). The Secretary must verify the sufficiency of a petition for nonpartisan office within forty-five days of its filing. Id. § 7-10-103(c)(l)(C).

Additionally, Arkansas election officials must process petitions for ballot initiatives. Eight percent of the qualified electors in Arkansas may propose a law, and ten percent may propose an amendment to the state’s constitution. Ark. Const. art. V, § 1. To appear on the November general election ballot, an initiative petition signed by the requisite number of voters must be filed with the Secretary not less than four months before the general election is to be held. Id. The Secretary must verify the sufficiency of an initiative petition within thirty days after it is filed and may contract with county clerks for assistance in verifying the petition signatures. Ark. Code. Ann. § 7-9-lll(a). If the Secretary finds a petition insufficient, within thirty days the petition sponsors must cure the deficiency (by gathering additional signatures, proving the validity of rejected signatures, or making the petition more definite) and submit a supplemental petition, the sufficiency of which the Secretary must verify within thirty days. Id. § 7-9-111(d). The Secretary must certify each verified initiative proposal to the county boards of election commissioners for inclusion on the ballot not less than seventy-five days before the general election. Id. § 7-5-204(a). If the Secretary has not verified the sufficiency of an initiative petition at least seventy-five days before the general election, or if an initiative petition is legally challenged, the Secretary must nevertheless transmit it to the county boards of election commissioners for inclusion on the ballot. Id. § 7-5-204(c)(l). If the Secretary subsequently declares the petition insufficient or if the initiative proposal is held to be legally invalid, no votes regarding the initiative proposal are counted or certified. Id. § 7-5-204(c)(2).

Moore is a registered Arkansas voter and claims that he was an independent candidate for Lieutenant Governor of Arkansas in the 2014 election. He sued Martin, alleging, as mentioned above, that the filing deadline for independent candidates violates the First and Fourteenth Amendments.

The parties filed cross-motions for summary judgment. The district court granted Martin’s motion and denied Moore’s motion. It rejected Martin’s arguments that the case was moot or unripe for review and that Moore lacked standing. It found that the March deadline for filing as an independent candidate placed a substantial burden on Moore’s rights; that Arkansas has a compelling interest in timely certifying candidates and initiatives to the general election ballot; and that the March deadline is narrowly tailored to serve this interest. In determining that the March deadline is narrowly tailored, the court relied on an affidavit submitted by the Arkansas Director of Elections, which states that the increased number of initiative petitions and candidates petitioning for inclusion on the ballot for nonpartisan office leaves Arkansas election officials with insufficient time to process the petitions using the previous May 1 submission deadline.

II. Discussion

We review de novo the district court’s order granting Martin’s motion for summary judgment and denying Moore’s motion for summary judgment. See Green Party of Ark. v. Martin, 649 F.3d 675, 679 (8th Cir. 2011). “The court §hall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. Proc. 56(a). The party moving for summary judgment bears the initial burden to “bring up the fact that the record does not contain” a genuine dispute of material fact “and to identify that part of the record which bears out his assertion.” Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988)). “[I]f the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent’s burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue.” Id. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by” either “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. Proc. 56(c)(1).

Ballot access restrictions implicate not only the rights of potential candidates for public office, but also the First and Fourteenth Amendment rights of voters to cast their ballots for a candidate of their choice and to associate for the purpose of advancing their political beliefs. Anderson v. Celebrezze, 460 U.S. 780, 786-88, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). “Constitutional challenges to specific provisions of a State’s election laws [ ] cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions.” Id. at 789, 103 S.Ct. 1564 (quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974)). Instead, we “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate,” then we “must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule,” determining not only “the legitimacy and strength of each of those interests” but also “the extent to which those interests make it necessary to burden the plaintiffs rights.” Id. “[W]e review the statute under a form of strict scrutiny referred to as the ‘compelling state interest test’ by first determining whether the challenged statute causes a burden of some substance on a plaintiffs rights, and if so, upholding the statute only if it is ‘narrowly drawn to serve a compelling state interest.’ ” Libertarian Party of N.D. v. Jaeger, 659 F.3d 687, 693 (8th Cir. 2011) (quoting McLain v. Meier, 851 F.2d 1045, 1049 (8th Cir. 1988)). In such cases, the State bears the burden of showing that the challenged statute is narrowly drawn to serve the State’s compelling interest. See Eu v. S.F. Cty. Democratic Cent. Comm., 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989).

Arkansas’s ballot access requirements for independent candidates have been repeatedly challenged. In Lendall v. Bryant, 387 F.Supp. 397, 400-03 (E.D. Ark. 1975) (per curiam) (Lendall I), a three-judge district court held unconstitutional the combined requirements' that an independent candidate’s petition be filed by the first Tuesday in April, which was also the filing deadline for political party candidate petitions, and be signed by fifteen percent of the qualified electors for the office. After Arkansas reduced that requirement to ten percent, and not more than two thousand signatures for district office or ten thousand signatures for statewide office, a three-judge district court held that the filing deadline, still the first Tuesday in April, was unconstitutional standing on its own. Lendall v. Jernigan, No. LR-76-C-184 (E.D. Ark. Aug. 20, 1976), aff'd mem., 433 U.S. 901, 97 S.Ct. 2963, 53 L.Ed.2d 1086 (1977) (Lendall II). Then in Lendall v. Jernigan, 424 F.Supp. 951, 958 (E.D. Ark. 1977) (Lendall III), the district court held that the petition requirement of ten percent of qualified electors, standing alone, was unconstitutional. In Lendall v. McCuen, No. LR-C-88-311 (E.D. Ark. Aug. 16, 1988) (Lendall IV), the court held that a one-time January 5 filing deadline, which accompanied a one-time March 8 date for the preferential primary, was unconstitutional in light of Lendall II’s disapproval of an April deadline. Finally, in Langguth v. McCuen, 30 F.3d 138 (unpublished table decision), No. 93-3413, 1994 WL 411736, at *1-2 (8th Cir. Aug. 9, 1994) (unpublished per curiam), our court upheld a deadline that required filing thirty days before the primary election, a signature requirement for statewide office of the lesser of three percent of qualified electors or ten thousand signatures, and a sixty-day period in which to gather signatures. Although we are mindful that these cases do not provide a “litmus-paper test,” Anderson, 460 U.S. at 789, 103 S.Ct. 1564, we note that a filing deadline earlier than the first Tuesday in April would require additional justifications to distinguish this case from Lendall II,

The district court correctly noted that the March 1 filing deadline for independent candidates imposes a burden “of some substance” on Moore’s First and Fourteenth Amendment rights and that Arkansas has a compelling interest in timely certifying independent candidates for inclusion on the general election ballot. We believe that the district court erred, however, in concluding that there was no genuine dispute of material fact whether the March 1 deadline is narrowly drawn to serve that compelling interest. The district court reasoned:

[I]n light of the increase in [candidates for nonpartisan offices] (mostly judges) filing petitions instead of paying filing fees as before and the increased number of initiative petitions[,] there is simply not enough time to process all of the petitions within the May 1st deadline. This fact coupled with the time consumed by ever increasing litigation over petitions has necessitated the [advancement] of the deadline to March 1st.

Secretary Martin’s evidence shows an increase in the number of candidates who petitioned for inclusion on the ballot for nonpartisan offices, resulting in an increase in the number of signatures that required verification. Those signatures were required to be verified by the end of February: in 2014, the deadline for submission of signature petitions for nonpartisan office was January 9, and thus, presumably, these petitions were verified by February 24, 2014. See Ark. Code Ann. § 7-10-103(c)(l)(C) (forty-five-day deadline for Secretary’s verification of signature petitions for nonpartisan office). Although advancing the deadline from May 1 to March 1 gives the Secretary two additional months in which to review independent candidate petitions, we question whether the increase in the number of nonpartisan petitions necessitated that change in dates in light of the fact that the Secretary is statutorily required to verify the nonpartisan petitions prior to the independent candidate petitions’ due date. The increase in nonpartisan petitions may have resulted in an increase in litigation regarding those petitions, which might interfere with the processing of independent candidate petitions, but the record is unclear as to any such effect. Accordingly, the increase in the number of nonpartisan petitions does not by itself establish the existence of a compelling interest that the March 1 deadline is narrowly tailored to serve.

Stronger evidence exists to suggest that the processing of initiative petition signatures might conflict with the processing of independent candidate petition signatures. The Director of Elections’ affidavit states, in part:

The deadlines for filing petition signatures [for candidates for nonpartisan offices, independent candidates, and new political parties] [were] “moved up” on the calendar — to earlier in the year — in order to facilitate election administration necessities, including the processing of so many initiative petition signatures during the 2012 election cycle that it was nearly impossible to finish the process within the statutory and constitutional guidelines, resulting in preliminary certification of [initiative petitions] that were later determined to be “stricken” from the ballot for one reason or another (after considerable litigation). Given the constitutional deadline for submission of initiative petition signatures, and the necessities of UOCAVA and MOVE compliance, all other petition signature requirements were advanced to earlier in the year so as to clear the calendar of petition signature processing and subsequent litigation, in advance of the constitutional initiative petition signature deadlines (which normally fall just before or just after the July 4 holiday).

Arkansas Code Annotated § 7-9-111 allows thirty days for the Secretary to verify initiative petitions, thirty days for petition sponsors to cure any deficiencies, and thirty days for the Secretary to review a thus-cured petition. Martin argues that the thirty-day cure period for defective petitions during which his office is required to meet the deadline for sending absentee ballots in practice means that he is left with only “a week to ten days to evaluate every single petition that comes in, many of them 50 or 60 or 70,000 signatures,” which “becomes nearly impossible, [as] it was in 2012.”

Moore contends that because independent candidates do not appear on the ballot until the November general election and because there are relatively few independent candidates, the former May 1 deadline did not create conflicts between the processing of independent candidate petitions and other signature petitions. He also argues that even if Arkansas were required to hire additional election workers to meet the statutory deadline, the cost increase would not justify the burden on independent candidates’ and voters’ constitutional rights. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 218, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986) (holding that the possibility of increased administrative costs would not justify a statute prohibiting a political party from opening its primary to voting by independents).

Notwithstanding the district court’s and the parties’ description of the issue for decision as being purely legal, we conclude that there exists a genuine factual dispute whether the verification of independent candidate petitions would conflict with the processing of other signature petitions under the former May 1 deadline. As mentioned earlier, it appears that the processing of nonpartisan-office petitions would not conflict with the processing of independent candidate petitions because the nonpartisan-office petition signatures are statutorily required to be verified before the end of February. The Director of Elections’ affidavit establishes that the processing of initiative petitions consumes a great deal of time between early July and late August. But on this record a number of other relevant facts are unclear. The record does not establish what periods of time, between the former May 1 deadline for independent candidate petitions and the early July deadline for initiative petitions, were available for the state to process independent candidate petitions. It does not establish when independent candidate petitions were in fact processed in the past, nor does it reveal whether during the 2014 election, following the move of the deadline from May 1 to March 1, independent candidate petitions were processed between those two dates. Also unclear are the amount of time required to process independent candidate petitions and the feasibility of temporarily hiring additional election workers. We conclude that the lack of a record establishing such underlying facts demonstrates the existence of a genuine dispute of material fact that precluded summary judgment.

Accordingly, the district court erred in granting Martin’s motion for summary judgment. It did not err in denying Moore’s motion for summary judgment, however, because of the existence of a factual dispute, which renders moot Moore’s motion for reconsideration. We thus affirm in part, reverse in part, and-remand the case for further proceedings consistent with the views set forth in this opinion.

SMITH, Circuit Judge,

dissenting.

I respectfully dissent. Arkansas’s election scheme requires independent candidates to file for candidacy at the same time political parties are required to file to be included in the general election. Ark. Code Ann. § 7-7-103(a)(l). Because the party-filing deadline shifts at the discretion of the General Assembly, the independent-candidate filing deadline shifts accordingly. For example, in 2014, this filing date was March 3, 2014 — 246 days before the general election. In 2016, this filing date was November 9, 2015 — 365 days before the general election. In McLain, we were troubled by a third-party filing deadline “more than 200 days before the November election.” 851 F.2d at 1049. The deadline here — 246 to 365 days- before the general election — is even more troubling.

“The Constitution requires that the access requirements as to both party-backed and independent candidates be reasonable.” McLain v. Meier, 637 F.2d 1159, 1165 (8th Cir. 1980). Restrictions on ballot access “may not go beyond what the state’s compelling interests actually require,” id. at 1163, and must be “narrowly drawn to serve [that] compelling state interest,” Jaeger, 659 F.3d at 693 (quoting McLain, 851 F.2d at 1049). The Arkansas independent-candidate filing deadline fails to meet these constitutional standards — it is neither actually required nor narrowly drawn.

Secretary Martin contends that this filing deadline is “actually required” because his office gets overwhelmed with the number of petitions for nonpartisan candidates and ballot initiatives. Yet, the nonpartisan petitions are certified in February, and the ballot initiatives are not due until July. Five months for certifying independent candidates is a substantial time period. The record reflects that no more than two independent candidates ran for state-wide office in Arkansas per election cycle in recent years. Using the former May 1 deadline, Secretary Martin would have two full months to process at most 20,000 signatures for independent candidates. See Ark. Code Ann. § 7-7-103(b)(l). Because the record does not demonstrate a legitimate conflict in the months of May and June for processing independent-candidate filings and other petitions, Secretary Martin has not shown that such an early filing deadline is actually required.

Additionally, Secretary Martin has not demonstrated how attaching the independent-candidate filing deadline to the party-filing deadline is “narrowly drawn.” See Jaeger, 659 F.3d at 693. In Council of Alternative Political Parties v. Hooks, the Third Circuit rejected a less-restrictive scheme in New Jersey that required third-party and independent candidates to file candidacy petitions in early April — the same day as the party-affiliated candidates. 121 F.3d 876, 879 (3d Cir. 1997). Alternative candidates had to file up to 800 signatures seven months before the general election. Id. at 878-79. In balancing the interests, the court determined that “requiring [independent candidates] to file their nominating petitions at the same early date as Democratic and Republican candidates” was unjustified. Id. at 881. “Requiring party candidates to comply with a March filing deadline permits a ‘reasonable time for processing the documents submitted by candidates and preparing the ballot’ for a June primary.... [But] ‘[n]either the administrative justification nor the benefit of an early filing deadline is applicable to an independent candidate.’” Wood v. Meadows, 207 F.3d 708, 711 (4th Cir. 2000) (citations omitted) (quoting Anderson, 460 U.S. at 800, 103 S.Ct. 1564). “[Although such laws appear to treat independent and party candidates similarly, they actually disadvantage independent candidates.” Id. Secretary Martin presents no justification for statutorily attaching the independent-candidate filing deadline to that of the political parties. Thus, this connection fails to be “narrowly drawn.”

The majority holds that we must remand because there is insufficient evidence regarding Secretary Martin’s inability to process independent-candidate petitions concurrently with the ballot initiatives. On summary judgment, however, if the non-moving party fails to make a sufficient showing of an element of his case that he has the burden of proving, then the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Secretary Martin had the burden of proving a genuine conflict existed between the processing of independent-candidate petitions and petitions for ballot initiatives. Because no evidence exists on the record that such an early deadline is necessary to process the independent-candidate petitions, Moore is entitled to judgment as a matter of law. See Gometz v. Culwell, 850 F.2d 461, 464 (8th Cir. 1988).

I respectfully dissent.

      . Plaintiff William Chris Johnson was voluntarily dismissed from the case, and Plaintiff Michael Harrod did not appeal from the district court’s judgment.

      .Prior to being amended in 2013, section 7-7-103(b)(l)(A) provided a May 1 deadline for an independent candidate to submit a petition with the requisite number of signatures. H.R. 2036, 89th Gen. Assemb., Gen. Sess., 2013 Ark. Acts 1356.

      . Prior to being amended in 2013, § 7-10-103(c) provided a later period for filing of petitions for nonpartisan office — beginning forty-six days before the first day of the party filing period and ending thirty-two days before the first day of the party filing period— and provided that the "Secretary of State, or the county clerk, as the case may be,” must verify the sufficiency of a petition for nonpartisan office within thirty days of its filing. H.R. 2065, 89th Gen. Assemb., Gen. Sess., 2013 Ark. Acts 1286.

      . Moore also alleged, in his affidavit opposing Martin’s motion for summary judgment, that he intends to run for Lieutenant Governor as an independent candidate in the 2018 general election.

      . We confine our analysis to Moore’s First Amendment rights and due process rights under the Fourteenth Amendment and do not separately consider his claim of an equal protection violation. See Anderson v. Celebrezze, 460 U.S. 780, 786 n.7, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).

      . The court also discussed the requirement that the signatures be gathered within a sixty-day period, but did not appear to base its holding on this requirement. Lendall v. Jernigan, 424 F.Supp. 951, 958 (E.D. Ark. 1977) (Lendall III).

      . Similarly, we perceive no error in the fact that the district court’s order did not mention the affidavit of Moore's purported expert witness, Richard Winger, which detailed the history and judicial treatment of ballot access requirements for independent candidates and new political parties, because it would not have informed the district court’s analysis in weighing Arkansas's interests against the burden on Moore's rights.

      . This refers to the earlier-mentioned requirement, upon timely request, to transmit absentee ballots to absent military voters and overseas voters at least forty-five days before an election. 52 U.S.C. § 20302(a)(8).

      . Martin and the district court noted that Moore presented no affirmative evidence to persuade the district court of his position. Because the record did not "in fact bear[ ] out [Martin’s] claim that no genuine dispute existed],” however, Moore was not required to provide affirmative evidence. See Counts v. MK-Ferguson Co., 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt. Pleasant v. Associated Elec. Coop., 838 F.2d 268, 273-74 (8th Cir. 1988)).

      . The evidence on the record suggests that Secretary Martin’s office is more than capable of handling such a task. In 2014, Secretary Martin processed 92 nonpartisan candidate petitions, containing 103,578 signatures, before the end of February. Further, Arkansas ballot initiatives must be processed within a period of 30 days, and these petitions can include up to 70,000 signatures.


author: ROSSITER, District Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Jermaine Allen FORD, Defendant-Appellant
    No. 16-2752
    United States Court of Appeals, Eighth Circuit.
    Submitted: April 4, 2017
    Filed: April 26, 2017

      Counsel who represented the appellant was Donovan Scott Robertson of Rock Island, IL.
    Counsel who represented the appellee was Clifford R. Cronk, AUSA, of Davenport, IA.
    Before WOLLMAN and LOKEN, Circuit Judges, and ROSSITER, District Judge.

      . The Honorable Robert F. Rossiter, Jr., United States District Judge for the District of Nebraska, sitting by designation.

   ROSSITER, District Judge.

Jermaine Ford appeals from the eighteen month prison sentence the district court imposed after revoking Ford’s supervised release. For the reasons stated below, we affirm Ford’s sentence.

1. BACKGROUND

On April 17, 2006, Ford pled guilty to one count of possessing marijuana with intent to distribute and one count of carrying a firearm in relation to a drug trafficking crime. On November 9, 2006, the district court sentenced Ford to 80 months in prison followed by three years of supervised release. The term of supervised release began upon Ford’s release from prison on April 26, 2011.

After Ford admitted he was not staying in his reported residence, the district court modified Ford’s conditions of supervision to include curfew supervision and alcohol testing for 120 days. Ford was later arrested for driving under the influence of alcohol (“DUI”) and the district court added 180 days of alcohol testing. Ford failed to comply with the alcohol testing and was also arrested for failure to appear in Illinois court for the DUI charge. The district court revoked Ford’s supervised release on February 15, 2013, and sentenced him to nine months in prison and two years of supervised release. Ford was released from prison and began the two years of his second supervised release term on October 24, 2013.

Ford’s second supervised release period included more incidents of noncompliance, including driving with a suspended license, testing positive for marijuana, and trespassing and causing criminal damage to property. Due to these infractions, the district court modified Ford’s conditions of supervised release and ordered him to serve 180 days in a halfway house.’ In April of 2015, probation officers found drugs and drug paraphernalia in Ford’s home and the district court ordered curfew supervision for up to 120 days.

On September 23, 2015, about one month before the end of Ford’s supervised release period, the government moved to revoke Ford’s supervised release for staying at a place other than his authorized residence and failing to advise the probation officer of his whereabouts. On December 28, 2015, while the first motion was pending, the government filed a second motion to revoke supervised release and petitioned the district court for an arrest warrant. The second motion and petition were based on Ford’s arrest in Illinois on the previous day for domestic battery.

The district court held a hearing on the government’s motion to revoke supervised release on June 8, 2016. The district court originally characterized the hearing as based on the second motion but later clarified the battery could not be a violation of supervised release because it occurred after the termination'of the supervised release period. The district court determined Ford committed a Grade C violation by failing to comply with the residence requirements of his supervised release. The advisory United States Sentencing Guidelines’ (“Guideline”) range for a Grade C violation with Ford’s criminal history was six to twelve months in prison. Taking the arrest for domestic assault into account as a sentencing factor under 18 U.S.C. § 3553(a), along with Ford’s past violations, the district court sentenced Ford to eighteen months in prison with no supervised release period to follow.

Ford appealed his sentence, alleging the district court abused its discretion by sentencing Ford to a period of imprisonment greater than the advisory Guideline range. Ford argues the district court committed procedural error by not adequately considering the Guideline range and placing too much emphasis on the battery. Ford also claims his sentence is substantively unreasonable.

II. DISCUSSION

Ford claims the district court did not properly take the advisory Guideline range into account and placed too much weight on his domestic assault. Ford “did not object at sentencing to the adequacy of the district court’s explanation or consideration of § 3553(a), so we review his objection on appeal for plain error.” United States v. Gray, 533 F.3d 942, 945 (8th Cir. 2008). As Ford conceded at the sentencing hearing, the district court could consider the assault as a sentencing factor under § 3553(a). The district court stated it was aware the advisory Guideline range was six to twelve months, but it specifically noted Ford’s risk to the community and increased the sentence to eighteen months. The district court did not err when it properly analyzed the § 3553(a) factors.

Ford also argues the sentence is substantively unreasonable. We review the substantive reasonableness of a sentence imposed after the revocation of supervised release under the abuse-of-discretion standard. United States v. Benton, 627 F.3d 1051, 1055 (8th Cir. 2010). Abuse-of-discretion analysis is appropriate even when the sentence exceeds the Guideline range. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Given Ford’s troubled history while on supervised release, and the domestic assault, the district court did not abuse its discretion in sentencing Ford to eighteen months in prison, which is within the statutory limits.

III. CONCLUSION

We affirm Ford’s sentence.

      . The Honorable James E. Gritzner, United States District Court for the Southern District of Iowa.

      . “The Court is not finding a violation based upon what happened to Ms. Rowe[J”

      . Because the original supervised release term was two years, the district court could not sentence Ford to more than two years in prison. 18 U.S.C. § 3583(e)(3).