Clyde Smith, Jr. v. Gary Ljohnson, Executive Director, Texas Department of Criminal Justice

United States Court of Appeals
Fifth Circuit
F I L E D
February 14, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
06-70007
CLYDE SMITH, JR.,
Plaintiff-Appellant,
v.
GARY L JOHNSON, EXECUTIVE DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL
INSTITUTIONS DIVISION;
CHARLES O’REILLY, Senior Warden,
Huntsville Unit;
UNKNOWN EXECUTIONERS,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas, Houston Division
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
The plaintiff-appellant, Clyde Smith, Jr. (Smith), is
scheduled to be executed on February 15, 2006. Smith appeals the
district court’s dismissal of his suit seeking injunctive relief
pursuant to 42 U.S.C. § 1983. He alleged that the particular
method of execution used by Texas, lethal injection, causes

-- 1 of 4 --

1 Smith v. State, No. 71,800 (April 3, 1996) (unpublished).
2
excruciating pain during an execution in violation of the Eighth
Amendment. The district court dismissed the complaint with
prejudice, concluding that Smith had failed to provide a reasonable
justification for his delay in bringing the Eighth Amendment
challenge to method of execution. The district court expressly
recognized that it did not have to determine whether the Eighth
Amendment claim is cognizable under § 1983 because Fifth Circuit
precedent holds that Smith is not entitled to equitable relief due
to his dilatory filing.
The district court correctly 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, __ F.3d __, 2006 WL 291292
(5th Cir. Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572,
574 (5th Cir. 2005)). Further, we have made clear that waiting to
file such a challenge just days before a scheduled execution
constitutes unnecessary delay. Harris v. Johnson, 376 F.3d 414,
417-19 (5th Cir. 2004). Although Smith’s direct appeal has been
final for more than nine years,1 he did not file the instant
complaint until five days before his scheduled execution. Smith
“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

-- 2 of 4 --

3
at 417. Whether or not Smith properly states a claim under § 1983,
he is not entitled to the relief he seeks due to his dilatory
filing. Smith has been on death row for more than nine years but
decided to wait to challenge a 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. Nonetheless, Smith contends that he has not delayed in
bringing suit because his execution was not scheduled until
September 9, 2005. Smith concedes that our very recent ruling in
Neville, 2006 WL 291292, is “adverse” to his claim. Smith offers
no other reason for the delay. Neville controls and requires us to
affirm the district court’s dismissal of this claim.
Smith also asks this Court to stay the execution pending the
Supreme Court’s decision in Hill v. Crosby, 05-8794, 2006 WL 171583
(Jan. 25, 2006) (granting certiorari), a case also involving a
challenge to the method of execution. In Neville, we declined such
an invitation, explaining that Fifth Circuit precedent “remains
binding until the Supreme Court provides contrary guidance.” 2006
WL 291292 at *1 (citation omitted). Moreover, the questions
presented to the Supreme Court concern whether an Eighth Amendment
claim is cognizable under § 1983 or should be construed as a habeas
corpus petition under 28 U.S.C. § 2254. Our precedent has not
reached these questions; instead, we have denied equitable relief

-- 3 of 4 --

4
based on the dilatoriness of the filing.
Accordingly, for the above reasons, we AFFIRM the district
court’s dismissal of Smith’s complaint and DENY the motion for stay
of execution.

-- 4 of 4 --