Ex Parte O'Brien

laches, prejudice what about the party attorney, opposing the real plicant’s O’BRIEN. parte Ex Derrick Sean grave in this He has suffered scenario? allowing to assert No. WR-51264-03. injustice. By applicant so representation of deficient his claim of Texas. Appeals of Criminal en- virtually long after the relevant events origi- which was sures that evidence May asser- nally to rebut available longer exists. should not tions no We practice permits which inmates

condone many years after their convic-

to wait for (and attorneys’ files

tions final their discarded) likely to assert claims lost Houston, Burnett, for Grеene Catherine assistance of counsel. ineffective Appellant. presumption I would hold that there is a Wilson, Hous- Atty., Asst. District Roe credibility applicant of an who against the Austin, Paul, ton, Atty., State’s Matthew of counsel asserts ineffective assistance for State. in petition claim first raised when that four-year outside the corpus habeas ORDER attorney-grievance statute of limitations. rebutted, presumption This be but PER CURIAM. applicant provides unless an evidence for ha- subsequent application This is why timely could file a clаim or how he corpus applicant beas advances attorney’s he unable to his was discover claim, asserting that Eighth Amendment constitutionally conduct, deficient his bare pain during the adminis- might he suffer assertions should be deemed sufficient injec- during tration of chemicals claim for relief. Courts support tion. willing apply should the doctrine of mur convicted of Applicant was party-in-inter- laches behalf of the real 9, 1994. affirmed the April der on We reputation has competence est whose why O’Brien v. explained conviction sentence. been attacked and who has 1996). May 71,859 (Tex.Crim.App. no. sup- produce he is unable to evidence 16, 1997, filed his applicant On December port his own defense. for writ of application initial habeas deny applicant relief for these August to Article 11.071. On pursuant reasons, as well as those stated appli a supplemental filed order. Court’s corpus. habeas We de cation for writ of on his initial nied relief writ, dismissed, his an abuse application. Ex untimely WR-51,264-01, O’Brien, No. WR- parte February 51,264-02 (Tex.Crim.App. 2002). 15, 2006, we issued On apрlicant’s sec to review of the execution of ha- subsequent application ond corpus. beas We now subsequent have reviewed this execution a Florida death row inmate find and that it should be granted dis- and certiorari to address claims 15th, 2006, missed. order May Our similar to those in his raised successor — staying proceedings in this case is application. Crosby, See Hill v. U.S. lifted. -, 126 S.Ct. 163 L.Ed.2d 1144 (2006). questions on which the Su- COCHRAN, J., filed a preme Court granted in certiorari Hill v. P.J., KELLER, which statement in Crosby are: HERVEY, JJ„ KEASLER and joined. complaint brought 1. Whether a under §’ 42 U.S.C. a death-sentenced PRICE, filеd a dissenting J. statement prisoner, stay state who seeks to his HOLCOMB, J., joined. execution in pursue order to a challenge JOHNSON, J., dissenting filed a to the chemicals for carrying utilized out statement. execution, is properly recharacter- J., WOMACK, as petition ized a habeas corpus dissents. under § 28 U.S.C. 2254. COCHRAN, J., filed a concurring Whether, under this Court’s decision P.J., KELLER, statement in which Nelson, a to a challenge particular KEASLER, HERVEY, JJ., joined. plans the State to use during I respectfully concur in the court’s ac- execution process cog- a constitutes tion lifting applicant’s temporary stay of nizable claim under 42 U.S.C. execution. Because of the last-minute na- questions These do not address the merits ture of corpus filing, habeas a whether the chemicals used the Flori- majority grant of this Court voted to a injection protocol da or Texas lethal are stay to have sufficient time to assess both “unnecessary,” excruciating pain,” “cause procedural aspects the Eighth violate Amendment to the writ application and the merits States United Constitution. The case ad- claim. only procedural dresses a issue under the Applicant, who was convicted of thus, Rights Act, federal Civil there is no not, murder in does in this subse- to stay applicant’s pend- reason quent application, challenge right Texas’ ing Supreme Court’s resolution Hill. Indeed, execute him. he claims that he Furthermore, applicant has met the does not the method of his exe- Supreme granting Court standard injection. cution—lethal chal- His sole stay execution. lenge specific is to the chemicals Supreme A. Court Standard for Texas Department of Criminal Justice Granting Stay Litigate Eighth (TDCJ) injection protocol. uses in its lethal Injection Amendment Lethal Claims. He two contends that of these three chemi- cals, pancuronium potassium bromide and years ago, in v. Campbell, Two Nelson chloride, “unnecessary carrying out Supreme the standard set out his execution” and create a “unnecessarily granting stay bring of execution to risk that O’Brien will suffer excruciating equitable challenging action the methodol- pain during excessive administration (or chemical of an ogy protocol) inmate’s injection.” his lethal execution: execution], Applicant argues that granting the United States [of before Supreme stayed recently only Court has court district must consider tors, punish- such whether method the merits and likelihood of success on (1) contemporary from ment deviates parties, harms the but also the relative (2) of- society; norms and standards the inmate de- the extent to which prisoner and soci- dignity fends unnecessarily layed bringing (3) or unnecessary physical or inflicts ety; in- significant claim. Given the State’s cоntempo- “contrary to psychological pain enforcing judg- its criminal terest fac- decency.”3 These rary standards ments, strong equitable pre- is a there in- that punishments tors dictate stay grant of sumption against death, torture, “unnecessary clude slow brought a claim could have been where Thus, to pain.”4 infliction of and wanton to at such a time as allow consideration stay, must make a an inmate be entitled requiring entry of of the merits without injection pro- prima showing that the facie a stay.1 death, or torture, a fingering tocol causes Thus, Court, in Supreme even contrary con- pain wanton infliction of case, Hill an inmate to pending allows decency. temporary standards challenging the bring equitable an action repeatedly Supreme As the Court injection protocol, an in- lethal ‍​‌‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌​‌​​​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​‍chemical Eighth noted in the Amendment context to either a mate still would be entitled evolving decency, “[t]he standards of unless, equitable rehef under Nel- objective evi- reliable clearest most (such son, has shown fair likelihood he legis- contemporary values dence on the prima showing) facie of success country’s legisla- lation enacted claim, has not 5 of his and that he merits thirty-eight tures.” states Of unnecessarily it.2 delayed bringing ap- presently permit punishment, validity claim of assessing the of a proximately thirty-seven of them have punishment, injection primary “cruel and unusual” Su- as the adopted lethal every single fac- means of execution.6 Almost preme Court has considered various 637, 649-50, primary of the drafters Campbell, 1. v. U.S. note that the concern Nelson 541 2117, (cita- (2004) prosсribe and other 'bar- 'torturéis]’ was to 124 S.Ct. 158 L.Ed.2d 924 omitted). punishment”); In re methods of bar[ous]’ tions 930, 436, 447, Kemmler, S.Ct. 34 136 U.S. 10 Applicant appropriately 2. claim, Applicant’s simply put, is is most commonly used as fast-acting injection lethal by chemicals used TDCJ medical It given anesthesia. in small could painful cause a death. Applicant and, doses during operations, it because offers neither evidence—much less scienti- brain, rapidly generally reaches the data, fic or peer-reviewed medical journal causes unconsciousness within 30-45 sec- аrticles, affidavits, expert or controlled sci- onds. as a part When used of the lethal entific studies —nor law to support injection however, process, injected it is at scientifically based medical claim. But nu- approximately merous nine to ten times courts across this nation the medi- have re- jected claims similar to grams cal-anesthesia level.12 TDCJ uses 3 —some Rimmer, Cooper 7. See Eighth v. 358 at F.3d 659. 42 dismiss U.S.C. 1983 Amendment lethal-injection protocol). Webb, 8. See (collecting 750 A.2d at 457-58 cases). following deny Eighth cases See, Bredesen, е.g., v. Abdur'Rahman 181 challenges lethal-injection Amendment to the Johnson, (Tenn.2005); S.W.3d Reid 292 v. protocol Cooper, on the merits: 358 F.3d at (E.D.Va.2004); Supp 333 F. 2d 543 Sims v. Commonwealth, Wheeler v. 121 S.W.3d State, (Fla.2000); 754 657 v. So.2d State 173, State, (Ky.2003); Bieghler 186 v. 839 Webb, 128, (Conn. 252 750 A.2d 448 Conn. 691, (Ind.2005); N.E.2d 694-96 Abdur’Rahman 2000); (Del.Su Deputy, State 644 A.2d 411 v. Bredesen, 292, (Tenn. v. S.W.3d 181 309 per.1994). 2005); Johnson, 543, F.Supp.2d ‍​‌‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌​‌​​​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​‍Reid v. 333 (E.D.Va.2004); Snow, People 553 v. 30 See, State, e.g., Bieghler v. 839 N.E.2d 691 43, 271, 749, Cal.Rptr.2d Cal.4th 132 65 P.3d (Ind.2005); Beck, F.Supp.2d Boyd 404 v. 879 657, (2003); 800-01 Sims v. 754 So.2d Stewart, (E.D.N.C.2005); v. 133 LaGrand F.3d Webb, 128, (Fla.2000); 668 v. State 252 Conn. McCotter, (9th Cir.1998); 1253 v. Woolls 798 448, (2000); 750 A.2d 457 LaGrand v. Stew Lockhart, (5th Cir.1986); F.2d 695 Hill v. 791 art, 1253, (9th Cir.1998) (lethal 133 F.3d 1265 (E.D.Ark.1992); F.Supp. Cooper 1388 v. Rim Arizona). injection following cases mer, 655, (9th Cir.2004). 659 358 F.3d challenges dismissed Amendment lеthal-injection reaching without applica- Appendix Derrick O'Brien’s C to Beck, 879, Boyd the merits: v. (Texas Depart- tion for writ of habeas Johnson, (E.D.N.C.2005); 883-84 Aldrich v. ment Justice of Criminal Inter-Office Com- 159, (5th Cir.2004) (lethal injec O’Brien, dated munication to Derrick March Texas); Johnson, tion in Harris v. 376 F.3d 27, 2006). (5th Cir.2004) (lethal injection Texas). cases, following In the the issue re Woodford, 12. See ripe: Crosby, Beardslee v. 395 F.3d mains 546 U.S. Rutherford -, (9th Cir.2005) (Jan. (noting "[ajccording S.Ct. L.Ed.2d 1144 31, 2006) (granting stay expert, over pending of execution State's 99.999999999999% cert, Evans, disposition pet.); population be Anderson v. unconscious with- CIV-05-0825-F, *2, sixty Nо. 2006 WL at seconds from start of the adminis- *1-2, pentothal— 2006 U.S. grams Dist. LEXIS tration of five of sodium (W.D.Okla. Jan.ll, 2006) (denying surgical motion to which is 12.5 the normal dos- times inmate experiencing was condemned milliliters pentothal of sodium light large dose of sodi- pain. TDCJ dose “[t]his solution. states not ex- the inmate does thiopental, um adults.”13 considered any any with perience pain associated Second, an given the inmate is involuntary motor reactions. potential neuro- pancuronium bromide which bro- milligrams pancuronium Fifty cu- blocking agent, similar muscular causе dosage a lethal will mide is causes the rare.14 Pancuronium bromide respiration by death the cessation suffocate, stop lungs inmate to because minutes. protocol, two In this within time, drug’s moving. At the same would be the inmate probability person from prevents effect paralytic pan- effects physical conscious expres- facial manifesting sensation per- than of one curonium less 1/100 sion, movement, or As ex- speech.15 hand cent.16 by one court: plained Third, given inmate is involuntary suppresses Pancuronium chloride potassium chloride. Potassium or motor manifestations seizures through intensely goes burns during process. occur potassium veins toward the heart. When give heart, could it These motor manifestations causes a reaches chloride heart attack.17 perception witnesses false that ing age people "would be sufficient would render most uncon- California executions —and unconsciousness, hours”); period and even cause of 13 to induce scious for excess Johnson, itself, properly”); F.Supp.2d at if administered Evаns Reid v. 546-47. In death Reid, Saar, (D.Md.2006) F.Supp.2d explained: v. the court ("The grams agree dosage parties [3 that this drug, thiopental The [also first sodium pentothal], successfully of if adminis sodium pentothal] is known as sodium a barbitu- tered, being enough to human is drive grams rate sedative. of sodium thio- Two hours”); deep into unconsciousness for Ab pental approximately eight is five times Bredesen, at 181 S.W.3d -ur’Rahman v. dosage that would be used render (“Dr. injection agreed that an of two Heath gen- pound individual unconscious for grams pentothal would cause un sodium surgery. eral Within moments after 'very all but rare’ cases and consciousness in injection thiopental, of the sodium the in- injection grams that an of five of sodium mate will be The rendered unconscious. ”). certainly pentothal almost be fatal.’ ‘would slip condemned inmate will into uncon- same that ex- sciousness manner as from a vine used 14. Curare is a dried extract perienced by general surgery patient. poison by Indians to arrow South American regaining probability The con- inmate doctors, and, tips by as a muscle relaxant. ensuing sciousnеss within the ten minutes (http:// Dictionary Online Merriam-Webster percent. probability of one 3/1000 www.m-w.com/cgi-bin/dictionaiy ?book=Dic- regaining by min- the inmate consciousness (last va=curare) tionaiy & visited on percent. ute fifteen one 6/1000 2006). probability regaining con- the inmate twenty ris- sciousness within minutes never Woodford,395 F.3d at 1071. 15. Beardslee v. percent. light es one above 1/100 weight inordinately high dosage, the Johnson, at 547. 16. Reid v. peculiar par- physical attributes other negligible impact inmate will have a ticular Woodford, 395 at 17. Beardslee v. probabilities. on these Johnson, F.Supp.2d at "One Reid v. Id. milliequivalents potassium chlo- hundred Woodford, dose. Within moments after 13.Appendix C. ride is lethal See Beardslee injected, parties agreed been (noting potassium that chloride has F.3d at 1071 stop beating. Shortly dosage will pentothal that the sodium used dur heart of the inmate States) Applicant points widely to the fact that numer- across the United is consti- states, including Texas, tutionally ous have banned sound.19 blocking agents the use neuromuscular Applicant’s argument suggests that pancuronium such as bromide for use in work, pentothal the sodium does not or if general- animal euthanasia.18 These states injected it is or if improperly, dosage ly barbiturate, require single the use of a high soon, or if it too enough, wore off (which pentobarbitol such as sodium is a he could be time that conscious (of longer-acting pen- bromide) than injection barbiturate sodium pancuronium second tothal). given might great pain, Some sodium is and he would conclude that suffer pain pentobarbitol is a more but would masked because he humane sedative to move, speak, could or otherwise indi- conducting injections use in because suffering. cate his All of these are con- longer. lasts But has not possibilities, they ceivable but are based shown the massive dose of sodium upon the assumption pen- the sodium pentothal used TDCJ fails to ensure the tothal is ineffective or does not Moreover, inmate’s unconsciousness. be- a sufficiently long period cause of uncon- use, of its infrequent pentobarbitol cause (even though sciousness a fatal dos- analysis lacks the statе-of-the-art scientific age).20 regarding its dependability effects and pentothal. is available for sodium It judge Courts cannot the lethal

is not suggest Court’s function to solely speculation based as to medically acceptable more humane or exe- problems ‍​‌‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌​‌​​​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​‍might occur. mistakes protocol, Instead, cution whether they but determine lethal in- must examine the (and adopted jection today. the method protocol Appli- TDCJ used exists thereafter, activity require brain will cease. Within states either the use of sedative potas- pentobarbitol, three minutes after the sodium or adherence to the chloride, Veterinary sium the inmate will be brain dead.” American Medical Association Id. published Panel Euthanasia’s method. 18.Florida, 828.065; Johnson, §§ 828.058 and 19. See Reid v. at 547- Fla. Stat. 4-11-5.1; Maine, Georgia, § Ga.Code Ann. 1044; Maryland, § tit. Ann., Me.Rev.Stat. Law, 10-611; § Sims, Criminal Mas- (noting 20. See So.2d at 666 n. Ann., Md.Code sachusetts, 151A; § Mass. Gen. Laws ch. 140 dosage, ”[o]n that the issue of a defense ex- 4:22-19.3; N.j. Jersey, New New only milligram pert per admitted one that Ann. Stat. N.y. Agric. 374; York, § & Mkts Law Okla- kilogram weight necessary body of to in- homa, 501; § unconsciousness, tit. and Tennes- duce and that a barbiturate Okla Stat. see, § 44-17-303. that States per milligrams at five coma is induced kilo- Tenn.Code Ann. require particular Thus, the use of a method for weight. grams gram body two of euthanasia, implicitly (i.e., animal therefore milligrams) pentothal is a sodium blocking agents ban the use of neuromuscular rapid lethal dose and certain to cause loss of Connecticut, 22-344a; § are: (i.e., consciousness within 30 seconds in- Conn. Gen. Stat. Delaware, § Ann. tit. Illi- jection). that mus- expert The further stated Del.Code nois, 70/2.09; Kansаs, 510 III. paralysis milligram pancu- cle at .1 Comp. occurs Kan. Stat. 47-1718(a); § Kentucky, kilogram body weight. per ronium bromide Ky.Rev. Ann. Stat. Thus, 321.181(17) Regs. § fifty milligrams pancuronium bro- Ky. Stat. Ann. Admin. 5(1); Louisiana, necessary 16:090 section far to mide exceeds amount LaRev.Stat. 3:2465; Missouri, Finally, § complete paralysis. achieve muscle Ann. Mo.Rev.Stat. 578.005(7); Carolina, expert milliequi- § that South admitted 150 to 250 Ann. S.cCode 47-3-420; Texas, potassium § Health & valents of chloride would cause the Safety Code Tex. 821.052(a). injected frequently, stop quickly Most to into the in- these heart Ann. PRICE, J., dissenting statement no filed provided evidence that cant has HOLCOMB, J., joined. subject protocol is realistic TDCJ unnecessary suffering. The pain risk of 15, 2006, stayed the On this Court has reached Supreme Court Connecticut in order to applicant’s imminent execution conclusion: the same styles a what he allow time consider post-conviction application for subsequent premised argument defendant’s brought pursuant to writ of habeas presumptions: on a that series 5(a) 11.071, of the Texas Article Section adequately; will not be trained personnel pur- In his Code оf Criminal Procedure.1 ten dosage thiopental that sodium subsequent application, writ ported surgical times the dose will be suffi- three alleges particular plicant unconscious; cient render the inmate capital offend- drug executing for will not be adminis- agents and that Amend- ers Texas violates the proper sequence. tered in the time and punish- ment on cruel and unusual ban evidence, however, supports a con- my position long It has ments. been steps clusion that reasonable have been the criteria such a claim satisfies taken to eliminate human error.... We under Article agents may ... conclude 5(a).2 11.071,section correctly effectively, administered lifted Today the has O’Brien’s possibility and that “botched” stay, and has denied of execution to extremely remote under applicant a second who has raised claim protocol.21 O’Brien’s, identical to and who is sched- The risk of “cannot negligence accident evening. uled executed this her to be not be from and need eliminated the exe- statement, Judge ulti- Cochran prоcess” cution for that method to survive mately concludes constitutional review.22 Those courts allege failed facts sufficient to make out have considered the issue of the lethal prima establishing case facie injection drug protocol have found that But of Eighth Amendment violation. occurring of likelihood constitutional error course, question that is not the us. before “is so remote as to be nonexistent.”23 11.071, 5(a), Under Article Section the sum, is current applicant produce question has failed to before us whether the any or scientific a sce- claim has not and could not facts evidence that been have involving timely in a ini- unnecessary pain presented previously nario and suf- been fering post-conviction application tial be- by pro- the use of TDCJ’s chemical anything legal is cause the factual or basis for the speculation. tocol other than lift join previous in the decision to claim was unavailable when the therefore Court’s applicant filed. The temporary stay of execution and was alleged an applicant’s subsequent petition Eighth Amendment violation. dismissal showing support he in prima to facie Whether the facts has stated failing make would, true, if him to of that claim entitle possible merit. 23. Reid, push qualify as at 551. mate and that an IV "). ‘quickly.’ 11.071, 5(a). 1. Tex.Code Crim. Pro. art. Webb, 750 A.2d at 456. (Tex. Hopkins, parte See Ex S.W.3d J., Wood, (9th (Price, Crim.App.2004) dissenting to Campbell denial execution). Cir.1994). stay of relief, question in is the first instance mate vehicle for a condemned inmate to convicting resolve,3 court to in the bring us, issue before even at the 5(a) event we deсide the criteria of Section hour, eleventh surely we should address have been satisfied. All we are authorized on the merits. But it is incumbent upon to juncture at this decide is whether those us first decide to whether such a vehicle “unavailable,” facts previously were as that impetus does exist. That was the behind term 11.071, is in defined Article Section our granting applicant’s stay. (5)(e) of the Code of Criminal Procedure.4 instead, Today, the Court to rushes hand, On other may there abe (at judgment, apparently assuming least legitimate question challenge whether a to judging by Judge Cochran’s the lethal protocol actually consti- statement) applicant’s claim post-conviction tutes a application for writ all, legitimately before us as a subsequent habeas under Article 11.071, it may since not constitute a chal- post-conviction corpus, habeas but leaping lenge judgment to “a imposing a penalty premature to a respect conclusion with to death.”5 We originally granted Eighth merits Amendment is- cause, in my ‍​‌‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌​‌​​​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​‍understanding, Moreover, sue. rejecting the claim on ordеr to allow ourselves sufficient to time merits, (again the Court via Judge decide whether a claim appli- such as the Cochran) apparently concludes challenge cant’s to the lethal pro- plicant failed produce “has to facts may tocol even brought under Article support scientific evidence” to his claim. 11.071, whether, post-conviction if a unfair, It manifestly my estimation, to provision under that specific applicant fault failure proof for a appropriate, any extraordinary othеr opportunity without affording first him remedy may be applicant available for the present a hearing, evidence at present his challenge. It has long been through one the other mechanisms that practice of this to be bound presentation statute allows for of evi- by the pleading denomination of a for ex- dence, once is determined that facts relief, traordinary but to issue whatever true, which, alleged, have been enti- remedy may be appropriate light tle the It is relief.7 not clear pleading.6 substanсe of the injection protocol to me we Nobody doubts that whether Texas’s use Texas execute offenders drug protocol three violates the does not and unusual pun- constitute cruel is a troubling Amendment substantial and ishment. enough It evident from the question, perusal one even a casual applicant’s I pleadings might. Judge Cochran’s statement (as- reject claim the presently vexing demonstrates courts all it) country. over If legiti- affording there exists a can suming we reach without 660, State, 213, Simpson, parte e.g., See Ex S.W.3d at 6. See Houlihan v. 579 S.W.2d 3. ("We (Tex.Crim.App.2004) ("Nor 668-69 are not the (Tex.Crim.App.1979) at ... does court, convicting original and we not the are originally in form which the matter factfinders.”) presented control of writ the form disposed.”). matter (5)(e). § Crim. 11.071, Tex.Code Pro. art. 11.071, 9(a). Kerr, § 7. Tex.Code Crim. Pro. art. parte See Ex S.W.3d (Tex.Crim.App.2002) (quoting Tex.Code Crim. 11.071, 1). Pro. art. Catch-22; can- challenge evidentiary caught to sub- applicant an forum “immi- his heard until it is claim. not be raised or stantiate nent,” raised heard as yet must be and reasons, respectfully all of I For these is set. these as thе death date Thus soon lifting dissent order of can never be reviewed. important issues applicant’s stay of execution. the current Accepting arguendo JOHNSON, J., dissenting filed a not violate constitu- drugs mixture does statement. issue must still be protections, tional presents questions case what This about say proto- cannot that the addressed. We appropriate are for chal- legal procedures protocol A change. will never different col protocol. lenging execution guaran- constitutional may indeеd violate provisions Are the of Article 11.071 faced same will be then with the tees. We challenge proper vehicle to the constitu- today, they we face and will legal issues tionality of protocol the execution used be- unresolved and unresolvable still be If conducting execution Texas? challenges always such will be both cause not, proper what is the vehicle? unripe over-ripe. proper legal is the method What respectfully dissent. challeng- presenting regarding facts in con- ing execution used

ducting an execution Texas? procedural

Analogous issues in the federal Crosby,

system under review Hill v.

— U.S. -, L.Ed.2d S.Ct. decision). (2006)(argued pending pro underlying issue M.D., CLAYTON,

tocol is the same in this case as in Hill. Tom Charles a/k/a M.D., Clayton, T. Thomas a/k/a proper The issue of legal procedure Clayton, Appellant M. challenges protocols to execution must point. very be addressed at some We recently said, in an unpublished albeit WISENER, Appellee. Susan until opinion, ripe that a is not Doyle v. the execution is “imminent.” No. 12-03-00251-CV. No. 960 2006 WL Texas, Appeals Court of (Tex.Crim. Tex.Crim.App. LEXIS 925 Tyler. 10, 2006). “Immi- App., delivered mo- “likely nent” means to occur at 15, 2005. June ment; Ency- impending.” Webstеr’s Rehearing Sept. Overruled clopedic Unabridged Dictionary of (Gramercy Books English Language

1989). says concurrence set,

challenge is once a death date is ripe that.

although not said months in the future

Death dates are set If are “imminent” set.

and so when authoritative, positions are taken

both the Court

both notes (1890) ("Punishments are cruel L.Ed. 519 recently appeal held that a direct chal lingering they death when involve torture or lenge injection used in lethal chemicals execution, ”). ... modes But traditional ripe Texas was not because the defendant’s always hanging, involved the "such as have Doyle v. execution was not “imminent.” See pain and for the convicted possibility of terror 1235088, *4, 74,960, No. 2006 WL Lucas, 1048, Gray person.” v. 710 F.2d 1061 (Tex. Tex.Crim.App. 2006 LEXIS *10-11 (5th Cir.1983) (rejecting that execution claim 10, 2006) (not designated Crim.App., May by cyanide gas could last seven min- —which certainly ripe publication). Such claim extremely painful utes and —violated Ap set. review once an execution date is Amendment).. Eighth February plicant’s date was set on 302, 331, Penry Lynaugh, 492 U.S. 109 5. v. 3, He filed his 2006. 2934, (1989); v. 106 Atkins S.Ct. L.Ed.2d 256 10, 2006, days five his scheduled exe before 304, 2242, 312, Virginia, 122 S.Ct. 536 U.S. cution. Simmons, (2002); Roper v. 153 L.Ed.2d 335 36, 25, McKinney, 551, 589, 1183, Helling v. 509 U.S. 113 125 161 S.Ct. 543 U.S. 2475, (1993); J., (2005) (O'Connor, dissenting). see also S.Ct. 125 L.Ed.2d L.Ed.2d 1 297-98, 294, Seiter, v. 501 U.S. Wilson (9th Rimmer, 655, Cooper v. 2321, (1991). L.Ed.2d 271 S.Ct. 128, Webb, Cir.2004); State v. 252 Conn. (2000) Gamble, (summarizing n. 10 U.S. 97 S.Ct. A.2d Estelle states). (“It (1976) legislation in 34 suffices 50 L.Ed.2d one of those states uses the same after evidentiary three hearings,9 extensive oth- Moreover, ‍​‌‌​‌‌​​​​‌​​‌‌‌‌‌‌​‌​‌​​​‌​​‌​‌​‌​​‌​‌‌‌​‌‌​‌​​‍chemicals as TDCJ.7 am un- ers upon based the face of the pleading.10 able to find court has held that According to the TDCJ response general, specific or a plicant’s complaint, administrative the le- lethal-injection particular, vio- thal method used by TDCJ lates Amendment.8 based upon separate three chemicals. Applicant B. prima has not made a fa- First, given inmate “massive dose showing cie that his constitutional pentothal,” of sodium a barbiturate also claim is meritorious. known thiopental.11 as sodium drug This

Case Details

Case Name: Ex Parte O'Brien

Court Name: Court of Criminal Appeals of Texas

Date Published: May 17, 2006

Citation: 190 S.W.3d 677

Docket Number: WR-51264-03

Court Abbreviation: Tex. Crim. App.