457 F.3d 390 | 5th Cir. | 2006
Lead Opinion
The Plaintiff-Appellant, Mauriceo Brown, is scheduled to be executed by lethal injection on July 19, 2006. Brown appeals the district court’s sua sponte dismissal of his suit seeking injunctive relief pursuant to 42 U.S.C. § 1983. He alleges that the combination of drugs that Texas uses in administering the lethal injection could paralyze him while leaving him fully
Relying on Harris v. Johnson, 376 F.3d 414 (5th Cir.2004), the district court held that Brown was dilatory in filing the complaint and, thus, dismissed the case with prejudice. The district court properly applied our precedent.
This Court has held that “[a] challenge to a method of execution may be filed any time after the plaintiffs conviction has become final on direct review.” Neville v. Johnson, 440 F.3d 221, 222-23 (5th Cir.) (citing White v. Johnson, 429 F.3d 572, 574 (5th Cir.), cert. denied, — U.S. -, 126 S.Ct. 601, 163 L.Ed.2d 502 (2005)), cert. denied, — U.S. -, 126 S.Ct. 1192, 163 L.Ed.2d 1146 (2006). Further, we have made clear that waiting to file such a challenge just days before a scheduled execution constitutes unnecessary delay. Harris, 376 F.3d at 417-19. Although Brown’s direct appeal has been final for seven years,
Although Brown recognizes our precedent, he argues that it is in conflict with the Texas Court of Criminal Appeals’s holding that lethal injection challenges are not ripe until an execution is imminent. Whatever significance the Court of Criminal Appeals’s holding may have with regard to state court proceedings, it is clear from our precedent that he could have proceeded with a section 1983 civil complaint in federal court at any time after his direct appeal became final in 1999. The Court of Criminal Appeals’s holding with regard to ripeness is irrelevant to Brown’s ability to proceed in federal district court on his section 1983 claim. Moreover, regardless of whether there is a conflict between the precedent of this Court and the Court of Criminal Appeals, this panel is bound by our, precedent, which requires us to find the instant suit dilatory. Brown offers no other reason to justify his delay in filing suit.
Accordingly, we AFFIRM the district court’s dismissal of Brown’s complaint and DENY the request in his brief for this Court to issue injunctive relief, which we treat as a request for stay of execution. The Clerk is directed to issue the mandate instanter.
. Brown v. State, slip op. 72,852 (Tex.Crim.App. Feb, 17, 1999)(unpublished).
Dissenting Opinion
dissenting:
Because I believe equity demands a more in-depth analysis of the situation in this case in light of recent Supreme Court jurisprudence, I respectfully dissent from the decision to deny a stay of execution. I continue to be concerned about the tendency in some of our own opinions towards mechanically denying stays according only to the length of delay between execution setting and the date of the petition, as noted in my diss.ent in Harris v. Johnson, 376 F.3d 414, 419 (5th Cir.2004). In Hill v. McDonough, — U.S. -, 126 S.Ct. 2096, 165 L.Ed.2d 44 (2006), the Supreme Court did not bar a plaintiffs 1983 action
In this case, the district court and the majority have not analyzed the case on the basis of the factors indicated in Hill, including the likelihood of success on the merits.
. In deciding a stay of execution, we must consider four factors: (1) whether the movant has made a showing of likelihood of success on the merits, (2) whether the movant has made a showing of irreparable injury if the stay is not granted, (3) whether the granting of the stay would substantially harm the other parties, and (4) whether the granting of the stay would serve the public interest. Buxton v. Collins, 925 F.2d 816, 819 (5th Cir.1991). Hill cited as an example of these factors Barefoot v. Estelle, a case approving of "the Fifth Circuit's recent practice of requiring a showing of some prospect of success on the merits before issuing a stay of execution,” 463 U.S. 880, 889, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), as well as Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997), a case noting that the movant must carry the burden of persuasion.