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United States Court of Appeals
Fifth Circuit
F I L E D
Revised
June 30, 2004
Charles R. Fulbruge III
In the
Clerk
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
_________________________

Before SMITH, DENNIS, AND CLEMENT,
The district court, relying on Martinez v.
Circuit Judges.
Tex. Ct. of Crim. Appeals, 292 F.3d 417, 421
(5th Cir. 2002), determined that Harris's com-
PER CURIAM:
plaint had to be construed as a successive 28
U.S.C. § 2254 petition for a writ of habeas
The state defendants seek vacatur of a tem-
corpus, and dismissed the petition for failure to
porary restraining order ("TRO") that
seek this court's authorization before its filing.
prohibits the State of Texas from using a
Cf. 28 U.S.C. § 2244(b)(3)(A). In an
particular combination of chemicals during the
unpublished order, we reversed and remanded
execution of David Harris, scheduled for June
for reconsideration in light of the intervening
30, 2004.1 Agreeing with the state that Harris
decision in Nelson, 124 S. Ct. at 2122-25,
is not entitled to equitable relief because he has
which we interpreted as overturning
"delayed unnecessarily in bringing the claim,"
Martinez's categorical bar on § 1983 method-
Nelson v. Campbell, 124 S. Ct. 2117, 2126
of- execution suits. Harris v. Dretke, No.
(2004), we vacate the TRO and render judg-
04-70020, 2004 WL 1427042 (5th Cir. June
ment of dismissal.
23, 2004) (per curiam) (unpublished).
I.
On remand, the district court diligently
Harris was convicted of capital murder and
requested briefing and argument, then held
sentenced to death in April 1986. Eighteen
that Harris's complaint is cognizable under
years later, in April of the current year, he
§ 1983 because it challenges only the state's
sued under 42 U.S.C. § 1983 challenging the
discretionary choice of execution methods and
manner in which Texas intends to carry out
not the execution itself. The court also
that sentence. The claim was filed six weeks
decided that Harris had not unreasonably
after the denial of his first federal habeas pe-
delayed the filing of his claim and had
tition was finalized by the Supreme Court's
otherwise satisfied the standards for receiving
denial of his petition for a writ of certiorari,
a TRO. See, e.g., Hoover v. Morales, 164
see Harris v. Dretke, 124 S. Ct. 1503 (2004),
F.3d 221, 224 (5th Cir.1998).
and ten weeks before his scheduled execution.
II.
In Nelson, 124 S. Ct. at 2123-24, the Court
held that method-of-execution claims may be
1 Although a TRO would not normally be im-
brought in a § 1983 suit instead of a habeas
mediately appealable, see County, Mun.
petition, so long as the claim fits within certain
Employees' Supervisors' & Foremen's Union v.
limitations. Recognizing that a challenge to a
Laborers' Intern. Union of N. Am., 365 F.3d 576,
method of execution is not aptly described as
578 (7th Cir. 2004), we have jurisdiction over this
either a challenge to the validity of the death
appeal by virtue of the district court's certification
sentence (a paradigmatic habeas claim), or as
of a controlling question of law for interlocutory
a challenge to the conditions of the inmate's
review. Cf. 28 U.S.C. § 1292(b). We hereby
confinement (a paradigmatic § 1983 claim),
GRANT leave to take this interlocutory appeal
the court declined to "resolve the question of
under § 1292(b). To the extent, if any, that there
is still a jurisdictional issue, we treat the notice of
how to treat method-of-execution claims
appeal as a petition for writ of mandamus and
generally." Id. at 2125. Whatever the tipping
GRANT the petition.
2

point before a § 1983 method of execution
Instead, Harris makes four arguments to
claim becomes a broader challenge cognizable
explain the reasonableness of putting off his
only in habeas, it is apparent that one of the
claim until this time. None is persuasive.
animating principles is Nelson's requirement
that the § 1983 claim not unduly threaten the
First, Harris argues that he was not
state's ability to carry out the scheduled
dilatory, because it was not until March of this
execution. Id. at 2124-25.
year that the Supreme Court denied the cer-
tiorari petition in his habeas proceeding, and
To that end, Nelson's analysis focuses not
up until that point he had a reasonable
just on whether there are medically viable al-
expectation that he would receive habeas relief
ternatives to the challenged procedure, but al-
that would render his complaint unnecessary.
so on whether those alternatives are even open
In accepting this argument, the district court
to the executioners as a matter of state law.
remarked that "[t]here was no reason for him
Id. at 2123-24. Similarly, "the mere fact that
to attack the method of his execution before
an inmate states a cognizable § 1983 claim
that date."
does not warrant the entry of a stay as a matter
of right," id. at 2125-26, and "[a] court may
That argument is nothing more than a re-
consider the last-minute nature of an
statement of the very thing the plaintiff is not
application to stay execution in deciding
entitled to do under Gomez, 503 U.S. at
whether to grant equitable relief." Id. at 2126
654SSnamely, to wait until his execution is im-
(quoting Gomez v. United States Dist. Ct.,
minent before suing to enjoin the state's meth-
503 U.S. 653, 654 (1992) (per curiam).
od of carrying it out. The denial of certiorari
may well have cast the issue in a new and
III.
urgent light for Harris, but it also entitled the
We do not decide whether Harris properly
state to set a date for, and proceed with, his
states a claim under § 1983, because even if he
execution. The brief window of time between
does, he is not entitled to the equitable relief
the denial of certiorari and the state's chosen
he seeks. See Gomez, 503 U.S. at 654. Harris
execution dateSSin this case, four monthsSSis
has been on death row for eighteen years, yet
an insufficient period in which to serve a
has chosen only this moment, with his
complaint, conduct discovery, depose experts,
execution imminent, to challenge a procedure
and litigate the issue on the merits.
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
2
address his unique medical conditionSSHarris
(...continued)
cannot excuse his delaying until the eleventh
plaint is that the state is acting with deliberate
indifference by choosing to use only a short acting
hour on the ground that he was unaware of the
barbituate, sodium thiopental, to numb the pain
state's intention to execute him by injecting the
caused by a lethal dose of potassium chloride. His
three chemicals he now challenges.2
complaint further alleges that the second drug in-
troduced in the execution, pancuronium bromide, is
capable of negating the sedative and serves no
2 Briefly stated, the substance of Harris's com-
purposes except to leave him appearing serene
(continued...)
while suffering excruciating pain.
3

By waiting until the execution date was set,
Harris leaves little doubt that the real purpose
Harris left the state with a Hobbesian choice:
behind his claim is to seek a delay of his exe-
It could either accede to Harris's demands and
cution, not merely to effect an alteration of the
execute him in the manner he deems most ac-
manner in which it is carried out.
ceptable, even if the state's methods are not
violative of the Eighth Amendment; or it could
Second, and related, Harris argues that the
defend the validity of its methods on the
delay can be justified by the fact that he has
merits, requiring a stay of execution until the
spent the last eighteen years in continuous liti-
matter could be resolved at trial. Under
gation challenging the basis for his conviction
Harris's scheme, and whatever the state's
and sentence. In accepting this argument, the
choice would have been, it would have been
district court remarked that it could not
the timing of Harris's complaint, not its
"discern where in this chronological list of
substantive merit, that would have driven the
events Mr. Harris might have had `ample' time
result.
to make this § 1983 claim."
Indeed, on the facts of the present case, it is
That argument, respectfully, mistakes the
uncertain whether the state even has that much
fundamental reality that Harris's § 1983 claim,
of a choice. Harris's initial complaint failed to
to be considered viable at all, must seek a form
specify an adequate and acceptable alternative
of relief wholly apart from that which he
to the state's lethal execution procedures. It
pursued in his collateral attacks on the under-
was not until he filed papers on remand before
lying conviction and sentence. The fact that
the district court, five days before his exe-
Harris was challenging his conviction on direct
cution, that Harris finally specified precisely
and collateral appeal has no bearing on his
which alternatives he would find acceptable.
right to use § 1983 as a vehicle for challenging
Given that limited amount of response time, it
the conditions of his confinement, because the
is not evident that the state is even capable of
two claims can proceed parallel to one
carrying out the execution using these
another.
alternative methods.
To the extent Harris's argument is that he
That is an untenable position in which to
lacked the resources to pursue both claims at
place the state. For the entirety of his eighteen
once, this is belied by the fact that there were
years on death row, Harris knew of the state's
intention to execute him in this manner. It was
3
during that periodSSin which the execution
(...continued)
was not so much an imminent or impending
visional habeas relief, and November 2002, when
danger as it was an event reasonably likely to
this court vacated the district court's ruling and
occur in the futureSSthat he needed to file this
rendered judgment for the state. See Harris v.
Cockrell, 313 F.3d 238 (5th Cir. 2002). Exclusive
challenge.3 By waiting as long as he did,
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-
3 Arguably, there was a one year window in
viction or sentence. Whatever hope Harris had for
which this was not the case: between September
obtaining a reprieve, he had to equally face the dif-
2001, when the district court granted Harris pro-
ficult reality that the State could one day carry out
(continued...)
his sentence.
4

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

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).
6

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
7

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.
8

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.
9