Brown v. Livingston

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
July 19, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-70032
MAURICEO MASHAWN BROWN,
Plaintiff-Appellant,
v.
BRAD LIVINGSTON, Executive Director,
Texas Department of Criminal Justice;
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice;
Correctional Institutions Division;
CHARLES O'REILLY, Senior Warden;
Huntsville Unit, Huntsville, Texas;
UNKNOWN EXECUTIONERS,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
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
conscious of excruciating pain during the execution in violation of
the Eighth Amendment. Brown seeks to enjoin the use of this
particular lethal injection protocol.
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 plaintiff’s 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, 126 S. Ct. 601 (2005)), cert. denied, 126
S. Ct. 1192 (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,1 he
did not file the instant complaint until six days before his
scheduled execution. Brown “cannot excuse his delaying until the
eleventh hour on the ground that he was unaware of the state’s
intention to execute him by injecting the three chemicals he now
challenges.” Harris, 376 F.3d at 417. Brown has been on death row
for more than nine years but decided to wait to challenge a
1
Brown v. State, slip op. 72,852 (Tex. Crim. App. Feb. 17,
1999)(unpublished).
2
procedure for lethal injection that has been used by the State
during his entire stay on death row. See White, 429 F.3d at 574
(reaching the same conclusion when petitioner filed after six
years); see also Harris, 376 F.3d at 417.
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.
3
DENNIS, Circuit Judge, 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 dissent in Harris v.
Johnson, 376 F.3d 414, 419 (5th Cir. 2004). In Hill v. McDonough,
-- U.S. --, 126 S. Ct. 2096 (2006), the Supreme Court did not bar a
plaintiff’s 1983 action even though it was not filed until four
days prior to his execution. Instead, the Court reversed the
Eleventh Circuit’s judgment that the suit was a functional
equivalent to a successive habeas petition. Id. at 2103. The Court
also reiterated that "a stay of execution is an equitable remedy”
and that there is "a strong equitable presumption" against granting
a stay where the claim could have been raised "'at such a time as
to allow consideration of the merits without requiring entry of a
stay.'” Hill, 126 S. Ct. at 2104, citing Nelson v. Campbell, 541
U.S. 637, 650 (2004). The Court made clear that “federal courts can
and should protect States from dilatory or speculative suits,” and
potentially also from “repetitive or piecemeal litigation” which
might raise similar concerns, but it did not address the method by
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which we may do so. Id. It did, however, make clear that a stay
under these circumstances must satisfy all the traditional
requirements, such as proof of the likelihood of success on the
merits. Id. at 2104. It also did not give carte blanche approval to
any of the lower court decisions it referred to, but merely noted
that dilatoriness was a valid and significant problem that courts
are within their powers to address. Id. I do not read the Court's
opinion as encouraging us to overlook all other considerations that
are called for in equity, which, after all, should be a recourse to
principles of justice and fairness to correct or supplement the law
as applied to particular circumstances. Consequently, equity in
cases of this nature requires courts to consider the particular
circumstances of each case and to examine them for whether or not
the challenge has been brought dilatorily or for improper purposes
(i.e., to delay the execution), and, if not, whether it should be
allowed to proceed.
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.2 Accordingly, it
2
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
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is difficult to determine quickly whether the result they reached
is congruent with the Supreme Court’s decisions in Nelson and Hill.
Further, it is now clear that a reevaluation and rethinking of our
prior decisions in the light of Nelson and Hill is appropriate.
Therefore, I respectfully dissent and would stay the execution in
this case pending briefing and oral argument for that purpose.
a showing of some prospect of success on the merits before issuing
a stay of execution,” 463 U.S. 880, 889 (1983), as well as Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997), a case noting that the
movant must carry the burden of persuasion.
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