Harris v. Dretke, et al

United States Court of Appeals
Fifth Circuit
F I L E D
June 23, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 04-70020
_______________
DAVID RAY HARRIS,
Plaintiff-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION;
NEILL HODGES,
WARDEN;
UNKNOWN EXECUTIONERS,
Defendants-Appellees,
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 04-CV-1514
_________________________

-- 1 of 3 --

2
Before SMITH, DENNIS, AND CLEMENT,
Circuit Judges.
PER CURIAM:*
David Harris appeals the dismissal of his
suit, brought under 42 U.S.C. § 1983,
challenging the manner in which the State of
Texas intends to carry-out his execution by
lethal injection on the scheduled date of June
30, 2004. The district court, relying on Mar-
tinez v. Tex. Ct. of Crim. Appeals, 292 F.3d
417, 421 (5th Cir. 2002), construed the
complaint as a successive habeas corpus peti-
tion brought under 28 U.S.C. § 2254 and
dismissed it for failure to seek this court’s au-
thorization to file it. Cf. 28 U.S.C. § 2244-
(b)(3)(A). Agreeing with Harris that Nelson v.
Campbell, 124 S. Ct. 2117 (2004), is a change
in the law that undermines the basis for the
district court’s decision, we reverse and
remand for further proceedings.
The district court’s reliance on Martinez
was well placed at the time it dismissed
Harris’s complaint. In Martinez, 292 F.3d at
421, and several cases adhering to it,1 we
interpreted Gomez v. United States Dist. Ct.,
503 U.S. 653 (1992) (per curiam), as standing
for the proposition that a death row inmate
may not use § 1983 to challenge the manner in
which the State intends to carry out a sentence
of death. Such claims were thought to chal-
lenge the sentence itself, and as a result, could
be raised only in a § 2254 habeas petition. Cf.
Preiser v. Rodriquez, 411 U.S. 475, 489
(1973).
Nelson, 124 S. Ct. at 2122, refutes that in-
terpretation of Gomez, inasmuch as Nelson
states that the Court “ha[s] not yet had
occasion to consider whether civil rights suits
seeking to enjoin the use of a particular meth-
od of executionSSe.g. lethal injection or elec-
trocutionSSfall within the core of federal ha-
beas corpus or, rather, whether they are
properly viewed as challenges to the
conditions of a condemned inmate’s death
sentence.” Although Nelson leaves unsettled
“the difficult question of how to categorize
method-of-execution claims generally,” id. at
2123-24, it recognizes that some such claims
may be brought under § 1983 if they are
sufficiently narrow in scope. See id. at 2123-
25 (analyzing the claim by “focusing attention
on whether petitioner’s challenge . . . would
necessarily prevent Alabama from carrying out
its execution”).
Nelson therefore overrules the categorical
rule that was announced in Martinez, 292 F.3d
at 421, and relied upon by the district court in
this case. In its place, Nelson institutes a more
probing standard that seeks to determine
whether the complaint crosses the line between
(1) method-of-execution claims that call into
question only the manner and means of
execution (and thus may be brought under
§ 1983) and (2) claims that call into question
the validity of the execution itself (and thus
sound only in habeas). Id. at 2123-24.
The State argues that Nelson is distinguish-
able, and that even if it is not, the district
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
1 Hines v. Johnson, No. 03-21173, 83 Fed.
Appx. 592 (5th Cir.) (per curiam), cert. denied sub
nom. Zimmerman v. Johnson, 124 S. Ct. 1502
(2004); Bruce v. Johnson, No. 04-70001 (5th Cir.
2004) (per curiam) (unpublished); Panetti v. Dret-
ke, No. 04-70002 (5th Cir. 2004) (per curiam)
(unpublished).

-- 2 of 3 --

3
court’s dismissal can be upheld on several al-
ternative grounds. Because the court issued
its ruling before the state had an opportunity
to file responsive pleadings, all of its
arguments are newly raised on appeal. “We
consider an issue raised for the first time on
appeal only if it presents a purely legal
question and failure to address it would result
in grave injustice.” Kelly v. Foti, 77 F.3d 819,
822 (5th Cir. 1996). No such injustice exists
here, because the state has ample opportunity
to urge its contentions on remand, id., if the
district court acts expeditiously, as we assume
it will.
We therefore reverse and remand for
further proceedings in light of Nelson. We
express no opinion as to whether Harris’s
complaint falls within the permissible scope of
§ 1983 complaints recognized in Nelson, or
whether there is any merit to the state’s
alternative defenses, such as exhaustion.
We do not stay Harris’s execution, and in
his brief in this appeal he specifies that he
“does not . . . seek a stay of his execution.”
As recognized in Nelson, 124 S. Ct. at 2125-
26, “the mere fact that an inmate states a cog-
nizable § 1983 claim does not warrant the en-
try of a stay as a matter of right.” There
remain a number of procedural issues, see id.
at 2126, the resolution of which should not re-
quire the entry of a stay. We do, however, re-
quest the district court to give emergency at-
tention to this matter and enter an appealable
order that will enable this court to resolve any
pending matters in advance of the date set for
execution.
The judgment is REVERSED, and this mat-
ter is REMANDED for further proceedings.2
The mandate shall issue forthwith.
2 The parties have complied with our order for
expedited briefing, under which Harris would be
entitled to file a reply brief by June 25. In light of
the need for quick remand, and further because
Harris is receiving the relief he requests on appeal
(reversal and remand), the termination of briefing
at this time is warranted. See also 5TH CIR. R.
31.4.4 (stating that “[t]he court assumes that the
parties have had ample opportunity to present their
arguments in their initial briefs”).

-- 3 of 3 --