Harris v. Johnson, et al

United States Court of Appeals
Fifth Circuit
F I L E D
June 30, 2004
Charles R. Fulbruge III
Clerk
Revised
In the
United States Court of Appeals
for the Fifth Circuit
_______________
No. 04-70028
_______________
DAVID RAY HARRIS,
Plaintiff-Appellee,
VERSUS
GARY L. JOHNSON,
EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION;
NEILL HODGES,
WARDEN, HUNTSVILLE UNIT HUNTSVILLE, TEXAS;
UNKNOWN EXECUTIONERS,
Defendants-Appellants,
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________

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Before SMITH, DENNIS, AND CLEMENT,
Circuit Judges.
PER CURIAM:
The state defendants seek vacatur of a tem-
porary restraining order (“TRO”) that
prohibits the State of Texas from using a
particular combination of chemicals during the
execution of David Harris, scheduled for June
30, 2004.1 Agreeing with the state that Harris
is not entitled to equitable relief because he has
“delayed unnecessarily in bringing the claim,”
Nelson v. Campbell, 124 S. Ct. 2117, 2126
(2004), we vacate the TRO and render judg-
ment of dismissal.
I.
Harris was convicted of capital murder and
sentenced to death in April 1986. Eighteen
years later, in April of the current year, he
sued under 42 U.S.C. § 1983 challenging the
manner in which Texas intends to carry out
that sentence. The claim was filed six weeks
after the denial of his first federal habeas pe-
tition was finalized by the Supreme Court’s
denial of his petition for a writ of certiorari,
see Harris v. Dretke, 124 S. Ct. 1503 (2004),
and ten weeks before his scheduled execution.
The district court, relying on Martinez v.
Tex. Ct. of Crim. Appeals, 292 F.3d 417, 421
(5th Cir. 2002), determined that Harris’s com-
plaint had to be construed as a successive 28
U.S.C. § 2254 petition for a writ of habeas
corpus, and dismissed the petition for failure to
seek this court’s authorization before its filing.
Cf. 28 U.S.C. § 2244(b)(3)(A). In an
unpublished order, we reversed and remanded
for reconsideration in light of the intervening
decision in Nelson, 124 S. Ct. at 2122-25,
which we interpreted as overturning
Martinez’s categorical bar on § 1983 method-
of- execution suits. Harris v. Dretke, No.
04-70020, 2004 WL 1427042 (5th Cir. June
23, 2004) (per curiam) (unpublished).
On remand, the district court diligently
requested briefing and argument, then held
that Harris’s complaint is cognizable under
§ 1983 because it challenges only the state’s
discretionary choice of execution methods and
not the execution itself. The court also
decided that Harris had not unreasonably
delayed the filing of his claim and had
otherwise satisfied the standards for receiving
a TRO. See, e.g., Hoover v. Morales, 164
F.3d 221, 224 (5th Cir.1998).
II.
In Nelson, 124 S. Ct. at 2123-24, the Court
held that method-of-execution claims may be
brought in a § 1983 suit instead of a habeas
petition, so long as the claim fits within certain
limitations. Recognizing that a challenge to a
method of execution is not aptly described as
either a challenge to the validity of the death
sentence (a paradigmatic habeas claim), or as
a challenge to the conditions of the inmate’s
confinement (a paradigmatic § 1983 claim),
the court declined to “resolve the question of
how to treat method-of-execution claims
generally.” Id. at 2125. Whatever the tipping
1 Although a TRO would not normally be im-
mediately appealable, see County, Mun.
Employees’ Supervisors’ & Foremen's Union v.
Laborers’ Intern. Union of N. Am., 365 F.3d 576,
578 (7th Cir. 2004), we have jurisdiction over this
appeal by virtue of the district court’s certification
of a controlling question of law for interlocutory
review. Cf. 28 U.S.C. § 1292(b). We hereby
GRANT leave to take this interlocutory appeal
under § 1292(b). To the extent, if any, that there
is still a jurisdictional issue, we treat the notice of
appeal as a petition for writ of mandamus and
GRANT the petition.

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point before a § 1983 method of execution
claim becomes a broader challenge cognizable
only in habeas, it is apparent that one of the
animating principles is Nelson’s requirement
that the § 1983 claim not unduly threaten the
state’s ability to carry out the scheduled
execution. Id. at 2124-25.
To that end, Nelson’s analysis focuses not
just on whether there are medically viable al-
ternatives to the challenged procedure, but al-
so on whether those alternatives are even open
to the executioners as a matter of state law.
Id. at 2123-24. Similarly, “the mere fact that
an inmate states a cognizable § 1983 claim
does not warrant the entry of a stay as a matter
of right,” id. at 2125-26, and “[a] court may
consider the last-minute nature of an
application to stay execution in deciding
whether to grant equitable relief.” Id. at 2126
(quoting Gomez v. United States Dist. Ct.,
503 U.S. 653, 654 (1992) (per curiam).
III.
We do not decide whether Harris properly
states a claim under § 1983, because even if he
does, he is not entitled to the equitable relief
he seeks. See Gomez, 503 U.S. at 654. Harris
has been on death row for eighteen years, yet
has chosen only this moment, with his
execution imminent, to challenge a procedure
for lethal injection that the state has used for
an even longer period of time. Unlike the
plaintiff in NelsonSSwho challenged a
procedure that had been newly instituted to
address his unique medical conditionSSHarris
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.2
Instead, Harris makes four arguments to
explain the reasonableness of putting off his
claim until this time. None is persuasive.
First, Harris argues that he was not
dilatory, because it was not until March of this
year that the Supreme Court denied the cer-
tiorari petition in his habeas proceeding, and
up until that point he had a reasonable
expectation that he would receive habeas relief
that would render his complaint unnecessary.
In accepting this argument, the district court
remarked that “[t]here was no reason for him
to attack the method of his execution before
that date.”
That argument is nothing more than a re-
statement of the very thing the plaintiff is not
entitled to do under Gomez, 503 U.S. at
654SSnamely, to wait until his execution is im-
minent before suing to enjoin the state’s meth-
od of carrying it out. The denial of certiorari
may well have cast the issue in a new and
urgent light for Harris, but it also entitled the
state to set a date for, and proceed with, his
execution. The brief window of time between
the denial of certiorari and the state’s chosen
execution dateSSin this case, four monthsSSis
an insufficient period in which to serve a
complaint, conduct discovery, depose experts,
and litigate the issue on the merits.
2 Briefly stated, the substance of Harris’s com-
(continued...)
2(...continued)
plaint is that the state is acting with deliberate
indifference by choosing to use only a short acting
barbituate, sodium thiopental, to numb the pain
caused by a lethal dose of potassium chloride. His
complaint further alleges that the second drug in-
troduced in the execution, pancuronium bromide, is
capable of negating the sedative and serves no
purposes except to leave him appearing serene
while suffering excruciating pain.

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By waiting until the execution date was set,
Harris left the state with a Hobbesian choice:
It could either accede to Harris’s demands and
execute him in the manner he deems most ac-
ceptable, even if the state’s methods are not
violative of the Eighth Amendment; or it could
defend the validity of its methods on the
merits, requiring a stay of execution until the
matter could be resolved at trial. Under
Harris’s scheme, and whatever the state’s
choice would have been, it would have been
the timing of Harris’s complaint, not its
substantive merit, that would have driven the
result.
Indeed, on the facts of the present case, it is
uncertain whether the state even has that much
of a choice. Harris’s initial complaint failed to
specify an adequate and acceptable alternative
to the state’s lethal execution procedures. It
was not until he filed papers on remand before
the district court, five days before his exe-
cution, that Harris finally specified precisely
which alternatives he would find acceptable.
Given that limited amount of response time, it
is not evident that the state is even capable of
carrying out the execution using these
alternative methods.
That is an untenable position in which to
place the state. For the entirety of his eighteen
years on death row, Harris knew of the state’s
intention to execute him in this manner. It was
during that periodSSin which the execution
was not so much an imminent or impending
danger as it was an event reasonably likely to
occur in the futureSSthat he needed to file this
challenge.3 By waiting as long as he did,
Harris leaves little doubt that the real purpose
behind his claim is to seek a delay of his exe-
cution, not merely to effect an alteration of the
manner in which it is carried out.
Second, and related, Harris argues that the
delay can be justified by the fact that he has
spent the last eighteen years in continuous liti-
gation challenging the basis for his conviction
and sentence. In accepting this argument, the
district court remarked that it could not
“discern where in this chronological list of
events Mr. Harris might have had ‘ample’ time
to make this § 1983 claim.”
That argument, respectfully, mistakes the
fundamental reality that Harris’s § 1983 claim,
to be considered viable at all, must seek a form
of relief wholly apart from that which he
pursued in his collateral attacks on the under-
lying conviction and sentence. The fact that
Harris was challenging his conviction on direct
and collateral appeal has no bearing on his
right to use § 1983 as a vehicle for challenging
the conditions of his confinement, because the
two claims can proceed parallel to one
another.
To the extent Harris’s argument is that he
lacked the resources to pursue both claims at
once, this is belied by the fact that there were
3 Arguably, there was a one year window in
which this was not the case: between September
2001, when the district court granted Harris pro-
(continued...)
3(...continued)
visional habeas relief, and November 2002, when
this court vacated the district court’s ruling and
rendered judgment for the state. See Harris v.
Cockrell, 313 F.3d 238 (5th Cir. 2002). Exclusive
of that time frame, there were seventeen years in
which Harris was faced with overcoming substan-
tial obstacles in proving an infirmity in his con-
viction or sentence. Whatever hope Harris had for
obtaining a reprieve, he had to equally face the dif-
ficult reality that the State could one day carry out
his sentence.

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extensive periods in which his habeas case was
stayed pending the outcome of related cases
before the Supreme Court, as well as by the
flurry of last-minute habeas filings Harris has
managed to make in parallel to the present
suit. There is no convincing reason why Har-
ris could not have brought this claim at any
point during his eighteen-year stay on death
row, had he but felt the urgency to do so.
Third, Harris argues that the claim was pre-
viously unavailable to him because of the pro-
cedural rule this court established in Martinez,
292 F.3d at 421. He therefore reasons that the
claim was unavailable to him until the decision
in Nelson opened the door for § 1983 method-
of-execution claims. Harris makes this
argument despite the fact that he filed suit well
over a month before Nelson was decided, and
despite the fact that the plaintiff in Nelson was
similarly barred by circuit precedent at the time
he filed his suit. So long as there remains the
possibility of en banc reconsideration and
Supreme Court review, circuit law does not
completely foreclose all avenues for relief.
Even if we bought the premise of Harris’s
argumentSSthat Martinez rendered his claim
procedurally unavailableSSwe could not ac-
cept, as a co nclusion, that it excuses his late
filing. Martinez was rendered in 2002, so it
provides no explanation, let alone excuse, for
Harris’s refusal to bring this claim for the
overwhelming amount of his lengthy stay on
death row.
Finally, Harris argues that the claim was
previously factually unavailable to him because
it relies on standards of decency thatSShe
allegesSShave only recently evolved to the
point o f finding lethal injection
unconstitutionally cruel.4 Taken to its logical
conclusion,Harris’s argument is that an Eighth
Amendment method-of-execution claim can
never be considered dilatory, because the con-
demned has an interest in awaiting the day
when, he hopes, society comes to share his
view of capital punishment, and his complaint
once filed will be viewed in light of society’s
most recent progress along that path.
The incentives Harris identifies do not pro-
vide an excuse for delaying his suit.
Undoubtedly, the plaintiff in Gomez, 503 U.S.
at 653, stood a stronger chance of successfully
challenging California’s use of the gas chamber
in 1992, than he did at the time of his
conviction and sentence in 1979, but that fact
did not entitle him to delay until the eleventh
hour. Id. at 654. Although we have ample
4 Harris also maintains that the complaint was
previously factually unavailable to him because he
relies, in part, on a veterinary study that was
released in 2001, and on a statute Texas enacted in
2003 to limit the methods by which animals can be
euthanized. See TEX. HEALTH & SAFETY CODE, §
821.052(a). Nevertheless, Harris’s own filings
demonstrate that the substance of his complaint has
been factually available for the entirety of his term
on death row.
Specifically, most of the similar statutes Harris
relies upon were enacted before or shortly after his
conviction and sentence. See, e.g., OKLA. STAT.,
Tit. 4, § 5-1 (enacted in 1981); FLA. STAT. §§
828.058 and 828.065 (enacted in 1984); MASS.
GEN. LAWS, § 140:151A (enacted in 1985); ME.
REV. STAT. ANN., Tit. 17, § 1044 (enacted in
1987); N.J.S.A. 4:22-19.3 (enacted in 1987); N.Y.
AGRIC. & MKTS. § 374 (enacted in 1987). In ad-
dition, of the eight instances Harris cites in which
Texas’s lethal injection procedures have
encountered some form of difficulty, seven took
place in 1992 or earlier.

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reason to doubt whether societal standards of
decency have evolved to the point at which
Harris claims them to be,5 he could have
chosen to take advantage of the legal
procedures offered by a similarly mature and
tolerant society just a few years ago. Had he
done so, Harris would have had an opportunity
to proceed to an adjudication of his claims on
the merits. Having chosen instead to litigate
this issue in the final days before the state
carries out his execution, his suit can serve no
purpose but to further delay justice that is
already eighteen years in the making.
Accordingly, we VACATE the temporary
restraining order and DISMISS Harris’s
complaint.
5 See, e.g., Cooper v. Rimmer, 358 F.3d 655,
658-59 (9th Cir. 2004) (rejecting an Eighth
Amendment challenge to a lethal injection protocol
similar to Texas’s); State v. Webb, 252 Conn. 128,
750 A.2d 448 (2000) (same); Sims v. State, 754
So.2d 657 (Fla. 2000) (same).

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DENNIS, Circuit Judge, dissenting:
I dissent for the reasons assigned by the district judge. In my
opinion, the district court’s order of June 29, 2004 convincingly
addresses and refutes the arguments set forth in the panel majority
opinion. Because time is of the essence I will not belabor those
points, but I reserve the right to file additional reasons later.
In this case, there is a convergence of: (1) Texas’s disturbing
refusal to disclose any reliable information regarding the
unpublished non-statutory lethal injection protocol it proposes to
use in this case or to reveal whether it has any alternative
protocol which it would not be prevented from using by Harris’s
§1983 claim; (2) a recent significant increase in medical evidence
that using ultra-short acting barbiturates such as sodium
thiopental in conjunction with a neuromuscular blocking agent such
as pancuronium bromide is an inhumane method of killing a living
being; and, (3) the May 24, 2004 Supreme Court decision in Nelson
v. Campbell, 124 S. Ct. 2117 (2004), which, for the first time,
permits an inmate to bring a §1983 challenge to an aspect or
adjunct of a state’s lethal injection execution procedure if the
§1983 action does not necessarily prevent the state from carrying
out the execution. Also, the Court in Nelson did not address, but
left open the broader question of how to treat method-of-execution
claims generally.
Because of this convergence, and the reasons assigned by the

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district court, it appears to me that the district court did not
abuse its discretion in granting Harris’s request for a temporary
restraining order. I would deny the state’s motion to vacate the
temporary restraining order and uphold the district court’s order.

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DENNIS, Circuit Judge, additional dissenting reasons:
Harris did not wait until the eleventh hour to file his claim.
Harris has never been given a copy of the protocol by which he will
die. Texas does not publish or otherwise disclose its execution
protocol for security purposes. Thus, there would have been no
better opportunity to obtain the protocol at an earlier date than
he has now.
It is unrealistic to require Harris to be concerned with the
particular secret protocol that Texas would use until he knew the
relevant time period during which the protocol would be used on
him. Texas asserts that it has not changed its protocol since it
began using the lethal injection method. But how was Harris to
know at an earlier date in this case what the secret protocol was
or whether the state would change it in the future? Had he filed
a §1983 claim any earlier it likely would have been dismissed as
unripe or for lack of standing.

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