                                UNPUBLISHED ORDER
                             Not to be cited per Circuit Rule 53


              United States Court of Appeals
                                  For the Seventh Circuit
                                  Chicago, Illinois 60604

                                         January 26, 2006

                                               Before

                              Hon. MICHAEL S. KANNE, Circuit Judge

                              Hon. ILANA DIAMOND ROVNER, Circuit Judge

                              Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1300

MARVIN BIEGHLER,                                        Appeal from the United States
                        Appellant-Plaintiff,            District Court for the
                                                        Southern District of Indiana,
       v.                                               Indianapolis Division

J. DAVID DONAHUE, Commissioner                          No. 06 C 136
of the Indiana Department of Correction,
ED BUSS, Superintendent                                 Larry J. McKinney,
of the Indiana State Prison, and                        Chief Judge.
UNKNOWN EXECUTIONERS,
                      Appellees-Defendants.


                                            ORDER

       Marvin Bieghler is scheduled to be executed by the State of Indiana after midnight on

January 27, 2006. Earlier today, the United States District Court for the Southern District of

Indiana denied Bieghler’s request (contained in a complaint filed under 42 U.S.C. § 1983) for a

stay of execution. This afternoon, Bieghler filed a notice of appeal and a request for a stay of

execution citing, among other things, the grant of certiorari issued by the United States Supreme
No. 06-1300                                                                                            2



Court on January 25, 2006, in Hill v. Crosby, No. 05-8794. Clarence Hill, the petitioner in that

case, raised the same Eighth Amendment claim that Bieghler raises here, and he did so at the

eleventh hour. Hill was denied relief by the United States Court of Appeals for the Eleventh

Circuit two days ago. See Case No. 06-10621 (11th Cir. Jan. 24, 2006). The grant of certiorari

in Hill was apparently not called to the attention of the district court when it acted this morning.

       We do not look favorably on eleventh hour requests for stays of execution. They are

often the product of dilatory motivation, a tactic which courts should never encourage. That,

plus the State’s offer (apparently rejected by Bieghler) to not oppose “a reasonable increase in the

dosage of the agents to be used in the injection,” augurs for denying Bieghler’s request.

Nevertheless, we cannot overlook the somewhat surprising grant of certiorari and stay of

execution by the Supreme Court in the Hill case. Although it’s possible that the precise issue

raised here by Bieghler may differ from the apparent procedural issue advanced by Hill (the

availability of § 1983 to his claim), we can’t comfortably be certain of that at this time. So today,

the Supreme Court’s action in Hill, and only that action, moves us to favorably entertain

Bieghler’s request.

       Accordingly, until further order of the court, the execution of Marvin Bieghler is

ORDERED STAYED.



       Kanne, Circuit Judge, dissenting.. The Supreme Court’s grant of a stay and certiorari in

Hill v. Crosby, 05-8794, 2006 WL 171583 (U.S. Jan. 25, 2006) (Kennedy, J.), will allow it to

answer the question left open in Nelson v. Campbell; namely, “whether civil rights suits seeking

to enjoin the use of a particular method of execution–e.g., lethal injection or electrocution–fall
No. 06-1300                                                                                           3



within the core of federal habeas corpus, or, rather whether they are properly viewed as

challenges to the conditions of a condemned inmate’s death sentence.” 541 U.S. 637, 643-44

(2004). The answer to this question is important, because if the claim is viewed as one of

habeas, as the Eleventh Circuit did in Hill, then the result is denial of the application because

such a claim cannot be redressed under 28 U.S.C. § 2254. See Hill v. Crosby, No. 06-10621,

2006 WL 163607,*1 (11th Cir. Jan. 24, 2006).          In this case, the parties and the district court

have assumed that the answer to the question posed in Hill is favorable to Bieghler, meaning it is

proper to consider Bieghler’s claims under § 1983. Therefore, we need not wait for the Supreme

Court’s decision in Hill. The district court considered Bieghler’s request for equitable relief and

found it lacking, largely because Bieghler waited until the day before his execution to make the

request. This ruling is consistent with the guidance provided by the Supreme Court in Nelson,

and I see no reason to disturb it. Nelson, 541 U.S. at 650 (“Given the State’s significant interest

in enforcing its criminal judgments, . . .there is a strong equitable presumption against the grant

of a stay where a claim could have been brought at such a time as to allow consideration of the

merits without requiring entry of a stay.”)

        I respectfully dissent.
