Tommie Collins Hughes v. GARY JOHNSON, Executive Director, Texas Department of Criminal Justice

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
March 14, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-70010
TOMMIE COLLINS HUGHES,
Petitioner-Appellant,
v.
GARY JOHNSON, Executive Director, Texas Department of
Criminal Justice; DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTION INSTITUTIONS DIVISION; CHARLES
O’REILLY, Senior Warden, Huntsville Unit Huntsville, Texas;
and UNKNOWN EXECUTIONERS,
Defendants-Appellees.
Appeal from the United States District Court for the
Southern District of Texas, Houston Division
No. 4:06-0678
Before JONES, Chief Judge, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
The plaintiff-appellant Tommie Collins Hughes (“Hughes”) is
scheduled to be executed on March 15, 2006. Hughes appeals the
district court’s dismissal of his suit seeking injunctive relief
pursuant to 42 U.S.C. section 1983. He alleged that the particular

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method of execution used by Texas, lethal injection, may cause
excruciating pain in violation of the Eighth Amendment. The
district court, citing Fifth Circuit precedent, dismissed the
complaint with prejudice, concluding that Hughes unnecessarily
delayed in bringing his Eighth Amendment challenge to the method of
execution. The district court expressly recognized that it did not
have to determine whether the Eighth Amendment claim is cognizable
under section 1983 because Fifth Circuit precedent holds that
Hughes is not entitled to equitable relief due to his dilatory
filing. Before this Court, Hughes requests a stay of execution.
Because we agree with the district court’s analysis, we affirm.
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 U.S. App.
LEXIS 3096 (5th Cir. Feb. 8, 2006) (citing White v. Johnson, 429
F.3d 572, 574 (5th Cir. 2005)), cert. denied, Neville v.
Livingston, 2006 U.S. LEXIS 1088 (Feb. 8, 2006). Furthermore, we
have made clear that waiting to file such a challenge shortly
before a scheduled execution constitutes unnecessary delay. Harris
v. Johnson, 376 F.3d 414, 417-19 (5th Cir. 2004), cert. denied,
Harris v. Dretke, 542 U.S. 953 (2004). Although Hughes’s direct

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1 Hughes v. State, 24 S.W.3d 833 (Tex. Crim. App. 2000),
cert. denied, Hughes v. Texas, 531 U.S. 980 (2000).
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appeal has been final for almost six years,1 he did not file the
instant complaint until 14 days before his scheduled execution.
Hughes had almost six years to file his suit, to seek discovery,
and to litigate his request for relief under section 1983. Hughes
“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.
Whether or not he properly states a claim under section 1983,
Hughes is not entitled to the relief he seeks due to his dilatory
filing. He has been on death row for more than seven years but
waited to challenge a procedure for lethal injection that has been
used by the Defendants 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, Hughes contends that he has not delayed in
bringing suit because his execution was not scheduled until
December of 2005. We reject this argument. This Court, in Harris,
explicitly stated that a challenge should be brought when the
conviction and sentence are affirmed on direct review and not when
the execution is “an imminent or impending danger.” Harris, 376
F.3d at 418; see also Neville, __ F.3d at __, 2006 U.S. App. LEXIS

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3096 at *1 (finding that a method-of-execution challenge may be
filed after the plaintiff’s conviction has become final on direct
review). Hughes’s death penalty conviction was affirmed in 2000.
Waiting until two weeks before his scheduled execution date
constitutes unnecessary delay. See Harris, 376 F.3d at 416.
Harris and Neville control and require us to affirm the district
court’s dismissal of this claim.
The district court properly considered Hughes’s attempts to
distinguish his case from prior cases, such as Neville, Smith v.
Johnson, 2006 U.S. App. LEXIS 3527 (5th Cir. Feb. 14, 2006), and
White, and found them unavailing. We agree. This case falls
squarely within the holdings of Neville, Smith, and White. Thus,
our precedent applies to Hughes’s case, and this Court must deny
his request to stay.
Hughes also contends that his execution should be stayed
pending the Supreme Court’s decision in Hill v. Crosby, a case also
involving a challenge to the method of execution. 126 S. Ct. 1189
(2006) (granting certiorari). In Neville, we declined such an
invitation, explaining that Fifth Circuit precedent “remains
binding until the Supreme Court provides contrary guidance.” __
F.3d at __, 2006 U.S. App. LEXIS 3096 at *3. Moreover, the Supreme
Court has denied certiorari in recent challenges to Texas’s lethal-
injection protocol. See, e.g., Smith, 2006 U.S. LEXIS 1090 (Feb.
15, 2006).

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Accordingly, based on the foregoing reasons, we AFFIRM the
district court’s dismissal of Hughes’s complaint and DENY Hughes’s
motion for a stay of execution.

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