Reese v. Livingston

United States Court of Appeals
Fifth Circuit
REVISED JUNE 26, 2006
F I L E D
June 20, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 06-70026
LAMONT REESE,
Plaintiff-Appellant,
versus
BRAD LIVINGSTON; 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 Northern District of Texas
Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Proceeding under 42 U.S.C. § 1983, Lamont Reese seeks a stay
of his execution scheduled for June 20, 2006. He attacks the
method of execution by injection as administered in Texas as cruel
and unusual punishment under the Eighth Amendment. The suit does
not challenge the conviction or sentence of death.
I
On December 8, 2000, following his conviction for capital
murder in the 371st Judicial District Court of Tarrant County,
Texas, Reese was sentenced to death. The Texas Court of Criminal
Appeals affirmed his judgment and sentence. Reese v. State, No.
23,989 (Tex. Crim. App. Nov. 6, 2002), cert. denied, Reese v.
State, 123 S. Ct. 2581 (2003). Reese filed a state petition for
habeas corpus on July 16, 2002, and a supplemental application on
January 31, 2003. The Texas Court of Criminal Appeals denied the
petition. Ex Parte Reese, Nos. 55,443-01 and 55,443-02 (Tex. Crim.
App. Apr. 30, 2003). Turning to the federal courts, Reese’s
application for COA was denied by this Court on May 4, 2004. See
Reese v. Dretke, No. 03-10839 (5th Cir. 2004) (unpublished), and
the Supreme Court denied certiorari on October 18, 2004. Reese v.
Dretke, 543 U.S. 944 (2004). Proceeding under 42 U.S.C. § 1983,
this suit was filed in the United States District Court, Northern
District of Texas, on May 25, 2006.
II
Reese seeks relief under 42 U.S.C. § 1983 from two claimed
violations from threatened injuries. First, Reese requests “a
permanent injunction prohibiting Defendants from injecting him with
three chemicals that (1) unnecessarily increase the risk of torture
during the execution; and (2) are superfluous and wholly
unnecessary to effect lethal injection. Second, [Reese] requests
that this Court enter an injunction prohibiting Defendants from
utilizing any invasive medical procedures to gain venous access for
the lethal injection, at least until and unless he is made aware
under what circumstances and standards those procedures will occur
and those standards are sufficient to protect [his] medical needs.”
2
III
The challenge to the chemical formulation used in the
execution, as well as a cut down procedure used to reach veins not
otherwise reachable, are the same as put forward in other cases ––
that persons are subjected to the high risk of unnecessary and
extreme pain and entail procedures that done at all ought be done
only by trained medical personnel. We will not pause to repeat
them.
IV
As for Hill’s request for a stay, the State responds that the
request is untimely and should be denied, pointing to decisions of
the Supreme Court in Hill v. McDonough, No. 05-8794 (June 12,
2006), and Nelson v. Campbell, 541 U.S. 637 (2003), as well as the
decisions of this court in Harris v. Johnson, 376 F.3d 414 (5th
Cir. 2004), and White v. Johnson, 429 F.3d 572 (5th Cir. 2005).
Reese contends that Harris and White have been undermined by the
Supreme Court’s decision in Hill.
We disagree. The question in Hill was whether a similar
challenge “must be brought by an action for a writ of habeas corpus
. . . or whether it may proceed as an action for relief under 42
U.S.C. § 1983.” Hill, at *3. Hill was not focused on the timing
of the filing, the question we face here. Even when properly
brought under § 1983, the Court did not retreat from the
requirements for obtaining a stay, stating that “inmates seeking
3
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.”
Hill, at *8. Further, the Court emphasized that “[t]he federal
courts can and should protect States from dilatory or speculative
suits . . . .” Id.
Moreover, it is significant that, while not passing on the
particular determination, the Court cited our decision in White v.
Johnson, 429 F.3d 572 (5th Cir. 2005), as one of “a number of
federal courts [that] have invoked their equitable powers to
dismiss suits . . . filed too late in the day.” Id. at *8. There,
we dismissed White’s similar challenge, filed several years after
his conviction became final on direct review, because he could have
brought the claim much earlier. See, e.g., Neville v. Johnson, 440
F.3d 221, 222 (5th Cir. 2006) (“A challenge to a method of
execution may be filed any time after the plaintiff’s conviction
has become final on direct review.”). Here, Reese’s conviction
became final in 2003, once the Texas Court of Criminal Appeals
affirmed his conviction and sentence and the Supreme Court denied
certiorari. See Reese v. State, No. 23,989 (Tex. Crim. App. Nov.
6, 2002), cert. denied, Reese v. State, 123 S. Ct. 2581 (2003).
Reese’s late claim is no different than the late claim in White,
and we are not persuaded that Hill has undermined the decisions of
4
this Court insisting upon a timely filing or that until Hill the
suit could not have been brought.
Further, the Court in Hill insisted that “[a] court
considering a stay must also 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.’” Hill at *8. Timely filing would have
afforded opportunity for developing facts and considered resolution
of the merits of the repeated charges being leveled against this
method of execution. Testimony in open court can cast away shadows
and allow a principled decision of the merit of the assertions of
all concerned –– rather than forcing courts to choose between
speculative assertions and “just trust me” responses. As we read
Hill, a plaintiff cannot wait until a stay must be granted to
enable it to develop facts and take the case to trial –– not when
there is no satisfactory explanation for the delay. We find this
suit with its request for equitable relief to be untimely.
The request for stay of execution is DENIED as untimely.
5