       IN THE UNITED STATES COURT OF APPEALS
                FOR THE FIFTH CIRCUIT


                                    No. 19-70020
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
PATRICK HENRY MURPHY,                                       November 12, 2019
                                                                 Lyle W. Cayce
             Plaintiff - Appellee                                     Clerk

v.

BRYAN COLLIER, EXECUTIVE DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION;
BILLY LEWIS, Warden,

             Defendants - Appellants




                Appeal from the United States District Court
                     for the Southern District of Texas


Before DENNIS, ELROD, and HIGGINSON, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
     Five days ago, the Southern District of Texas granted a motion from
Texas death row inmate Patrick Henry Murphy seeking to stay his execution.
Officials of the Texas Department of Criminal Justice (TDCJ) now move in this
court to vacate the district court’s order so that Murphy may be executed
tomorrow, November 13, 2019. For the following reasons, the TDCJ’s motion
is DENIED.
                                 No. 19-70020
                                       I.
      Earlier this year, two days before his then-scheduled execution, Texas
death row inmate Patrick Henry Murphy, a Buddhist, filed the instant lawsuit
under 42 U.S.C. § 1983 and a motion for stay of execution in the Southern
District of Texas. He alleged that the State of Texas’s execution policy allowing
only TDCJ employees in the execution chamber violated the First Amendment
and the Religious Land Use and Institutionalized Persons Act (RLUIPA). At
the time of Murphy’s scheduled execution, all the TDCJ-employed chaplains
were Christian and Muslim, and execution protocol did not provide any
accommodation for inmates, such as Murphy, who wished for the presence of a
spiritual advisor of a different religion in the execution chamber. Under this
policy, Murphy alleged that Christian and Muslim death row inmates could
have a spiritual advisor of the same religion in the execution chamber with
them, while inmates of other religions, like Murphy, could not.
      The district court denied Murphy’s motion for a stay of execution as
untimely.   Murphy appealed to this court the day before his scheduled
execution, and we affirmed, explaining that “the proper time for raising such
claims has long since passed.” Murphy v. Collier, 919 F.3d 913, 915 (5th Cir.
2019).
      The Supreme Court granted Murphy’s motion for a stay mere hours
before Texas had planned to execute him. Justice Kavanaugh authored a
concurrence wherein he “conclude[d] that Murphy made his request to the
State in a sufficiently timely manner, one month before the scheduled
execution.” Murphy v. Collier, 139 S. Ct. 1475, 1476 n.* (2019) (Kavanaugh,
J., concurring). Justice Kavanaugh also offered “at least two possible equal-
treatment remedies available to the State going forward: (1) allow all inmates
to have a religious adviser of their religion in the execution room; or (2) allow


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inmates to have a religious adviser, including any state-employed chaplain,
only in the viewing room, not the execution room.” Id. at 1475.
                                      II.
      Five days after the Supreme Court’s order, the TDCJ revised its
execution procedure, implementing the second of Justice Kavanaugh’s
suggestions; its new policy prohibits the presence of any chaplain or spiritual
advisor in the execution chamber. About two weeks after the TDCJ revised its
policy, on April 18, 2019, Murphy filed an amended complaint in the district
court that incorporated arguments made in his earlier pleadings while adding
arguments directed to the changes in the new TDCJ policy. Murphy’s amended
complaint still alleged violations of the Establishment Clause, Free-Exercise
Clause, and RLUIPA, but the focus of the amended complaint shifted to the
interaction an inmate has with his spiritual advisor before entering the
execution chamber.
      The parties conducted discovery for several months, which revealed the
following: All inmates have access to their spiritual advisor during regular
business hours in the two and a half days leading up to the execution. On the
day of the execution, however, access is restricted. An inmate may only meet
with a non-TDCJ spiritual advisor in the holding area (generally referred to as
the “death house”) between 3:00 and 4:00 p.m. on the day of his execution. The
inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m.
Thereafter, only TDCJ personnel may interact with the inmate. The policy,
however, does not place any limitation on visits by TDCJ-employed clergy, who
appear to have access to an inmate until the moment he enters the execution
chamber.
      Murphy argued that the amended policy still favors some religions over
others because TDCJ-employed chaplains—who apparently are all Christian
or Muslim—have greater access to the condemned than non-TDCJ employee
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spiritual advisors. 1     Murphy urged that “the defect Justice Kavanaugh
identified in the Supreme Court’s March order has simply not been eradicated
by [the new TDCJ] policy” because “the disparate treatment of different
religions continues to exist in the holding area where a condemned inmate is
held in the hours before he is executed.”
      On July 19, the TDCJ and Murphy filed cross motions for summary
judgment. On August 12, before the district court ruled on these motions and
while the litigation was ongoing, the state trial court rescheduled Murphy’s
execution for November 13 at the State’s request. On November 4, while
awaiting the district court’s resolution of the dueling summary-judgment
motions, Murphy filed a motion for a stay of execution in the district court.
      On November 7, the district court denied both motions for summary
judgment and granted Murphy’s motion to stay his execution. In a thorough
14-page decision, the district court explained its reasons for granting a stay.
The district court explained that, in practice, the TDCJ policy allows chaplains
to “provide spiritual support only to inmates of certain faith groups.” TDCJ
argued in the district court that TDCJ clergy serve a primarily secular role in
the execution process, providing comfort and consolation to inmates facing
imminent execution. The district court found, however, that TDCJ clergy “may
serve as more to inmates of certain faiths.” TDCJ clergy indicated that they
would pray with Christian inmates during the time before their execution but
would not pray with a prisoner of a different faith if doing so did not accord
with the chaplain’s personal religious faith. The district court concluded that
“serious issues remain unresolved about the TDCJ-employed clergy’s mission


      1  Murphy’s amended complaint continued to allege that the absence of his spiritual
advisor in the death chamber violated his constitutional rights. We focus, however, on his
claim concerning the greater access to a spiritual advisor in the death house by inmates
sharing the same faith as TDCJ-employed clergy because that was the focus of the district
court’s analysis.
                                            4
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and how they will carry it out, specifically in relation to inmates not of their
faith.”   The district court also concluded that, at the litigation’s current
juncture, it was unclear why the State must accomplish its secular purpose of
calming and comforting inmates through a chaplain rather than a trained
professional “whose position does not carry with it the imprimatur of a specific
religion.”
      The district court also suggested the State’s procedure may not be the
least restrictive means of accomplishing its goals of maintaining security and
the confidentiality of the drug team, its proffered compelling state interest.
The court stated that “some alternative arrangement may be possible to
preclude interaction between outside clergy and the process of preparing for
an execution,” such as allowing the condemned inmate to “be held in a location
where his spiritual advisor would be unable to view the execution
preparations,” remedying the State’s security concerns.
      Ultimately, the district court concluded that “[t]he concerns raised by the
amended complaint’s focus on the pre-execution procedure are as compelling
as those in the original complaint.” “If Murphy were Christian, he would have
the benefit of faith-specific spiritual support until he entered the execution
chamber; as a Buddhist he is denied that benefit.”         Finding the State’s
justifications for the disparate treatment wanting based on the discovery thus
far, the district court determined that “[a] stay will allow the Court time to
explore and resolve serious factual concerns about the balance between
Murphy’s religious rights and the prison’s valid concerns for security.”
                                      III.
      The TDCJ appeals, arguing that the district court erred in granting
Murphy’s motion for a stay. “We review a district court’s grant of a stay of




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execution for abuse of discretion.” Adams v. Thaler, 679 F.3d 312, 318 (5th Cir.
2012).
       We conclude that the district court did not abuse its discretion in
granting Murphy’s stay. We agree with the district court’s implicit finding that
Murphy has a strong likelihood of success on the merits of his claim that the
TDCJ policy violates his rights by allowing inmates who share the same faith
as TDCJ-employed clergy greater access to a spiritual advisor in the death
house. 2
       The TDCJ argues that Murphy’s claim is untimely.                        We made the
mistake of agreeing with the TDCJ on this point in March based on Murphy’s
original complaint, in which he made his request for religious accommodations
to the State one month before his scheduled execution and filed his § 1983 suit
two days before his execution. The Supreme Court disagreed. 3 Here, the
TDCJ’s argument is even weaker than before, as Murphy raised his current
claim in April, before the State of Texas even scheduled his execution.




       2  Though the district court quoted Nken v. Holder, 556 U.S. 418, 434 (2009), and issued
a 14-page opinion analyzing Murphy’s claims, the TDCJ argues—and the dissent agrees—
that it is unclear whether the district court applied the proper standard because it did not
make an explicit finding that Murphy had a strong likelihood of success on the merits. Our
decision in Adams v. Thaler forecloses this line of attack. Even if the finding was not explicit,
“in granting the stay, the district court made an implicit determination that it was reasonably
likely that [Murphy’s petition] justified relief from judgment.” Adams v. Thaler, 679 F.3d
312, 318 (5th Cir. 2012). If the district court’s one-page order in Adams was detailed enough
to find that the petitioner there had a strong likelihood of success on the merits, the district
court’s 14-page opinion here is sufficient.
        The dissent also contends that once Murphy is in the execution room, he may view his
spiritual advisor in the witness room and may chant along with him. While the new TDCJ
policy allows a spiritual advisor in the witness room, the record does not reveal whether
Murphy and his spiritual advisor could “chant” or even communicate through this setup.
        3 While a majority of the Court did not give reasons for granting the stay, the grant

contains an implicit finding that Murphy’s claim was timely.
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       The dissent contends 4 that “the Supreme Court’s stay has no bearing on
whether claims raised after that stay grant are timely” because at the time of
the Supreme Court’s order, Murphy had yet to raise the holding-area claims
he brings in his amended complaint. We cannot agree that the Supreme
Court’s stay has no bearing on this case. In granting the stay of Murphy’s
execution in March, the Supreme Court ruled implicitly that Murphy’s claims
were timely. In his concurrence, Justice Kavanaugh made this finding explicit,
“conclud[ing] that Murphy made his request to the State in a sufficiently
timely manner, one month before the scheduled execution.” Murphy, 139 S. Ct.
at 1476 n.* (Kavanaugh, J., concurring) (emphasis added). 5 The Supreme
Court’s finding that this claim was timely bears directly on the timeliness of
Murphy’s current claim—if Murphy’s request was timely when made a month
before his scheduled execution, it is certainly timely when made before his
execution was even scheduled.
       Of course, “[a] court considering a stay must also apply 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.” Hill v. McDonough, 547 U.S. 573, 584 (2006). However, this is not
a case where Murphy filed a last-minute claim with his execution date looming.
Here, the State of Texas set a new execution date on August 12, 2019, four
months after Murphy filed his complaint. Therefore, Murphy brought his
claim “at such a time as to allow consideration of the merits without requiring
entry of a stay.” Id. It is the State of Texas that required entry of a stay by
seeking an execution date while the parties were in the midst of litigation in


       4  Because of the time-sensitive nature of this matter, we do not address every point
raised by our dissenting colleague.
        5 Justice Kavanaugh also authored a separate statement, joined by Chief Justice

Roberts, elaborating on his conclusion that Murphy’s claim was timely. See Murphy, 139 S.
Ct. at 1476-78 (statement of Kavanaugh, J.).
                                             7
                                       No. 19-70020
the district court and before the district court had adequate time to resolve the
claim.
       The TDCJ also argues that the district court abused its discretion in
granting the stay because Murphy’s claims are unexhausted and therefore
unlikely to succeed.        Again, the Supreme Court implicitly rejected this
argument in March. At every stage of the March 2019 proceedings, the TDCJ
argued that Murphy’s claims were unexhausted. The Supreme Court could not
have permitted Murphy’s case to proceed if it accepted the TDCJ’s exhaustion
argument. Because the Supreme Court has already rejected this argument,
we reject it as well. 6
                                             IV.
       The district court conducted a thorough examination of this case and
found that a stay was warranted. We find no error or abuse of discretion in its
analysis and agree that it should be allowed time “to explore and resolve
serious factual concerns about the balance between Murphy’s religious rights
and the prison’s valid concerns for security.” Murphy has a strong likelihood
of success on the merits of his claim. Taking strong direction from the Supreme
Court’s earlier decision staying Murphy’s execution, we decline to rush this




       6 The dissent also contends that Murphy has not shown a likelihood of success on the
merits because he fails to persuasively explain why his claims are not barred by the statute
of limitations. The TDCJ contends that a two-year limitations period applies to Murphy’s
claim and that it accrues on “the date direct review of an individual case is complete or the
date on which the challenged protocol was adopted.” See Walker v. Epps, 550 F.3d 407, 414-
15 (5th Cir. 2008). The district court found it had inadequate factual development and
briefing on this issue to evaluate the TDCJ’s argument, “particularly with regard to the pre-
execution access to spiritual advisors.” It is the TDCJ’s burden to establish that Murphy’s
claim is barred by the statute of limitations. See F.T.C. v. Nat'l Bus. Consultants, Inc., 376
F.3d 317, 322 (5th Cir. 2004). The district court declined to rule on this ground because the
TDCJ failed to sufficiently develop its claim; we should as well. Moreover, we note that at
the time direct review of Murphy’s case was complete, it was impossible for him to know
which spiritual advisors would be employed by TDCJ at the time of his execution.
                                              8
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significant inquiry.   For the foregoing reasons, IT IS ORDERED that
appellants’ motion to vacate the stay of execution is DENIED.




                                     9
                                    No. 19-70020
JENNIFER WALKER ELROD, Circuit Judge, dissenting:

      Because I believe Murphy did not demonstrate that he is likely to
succeed on his brand-new, untimely, and unexhausted claim regarding the
TDCJ’s pre-execution holding-area protocol, I would hold that the district court
abused its discretion in granting Murphy’s motion for stay of execution. I
would therefore grant TDCJ’s motion to vacate the stay.
      The basis of this brand-new claim is Murphy’s access to his spiritual
advisor during the time he is in the pre-execution holding area.                   It is
undisputed that on the day of execution, Murphy may visit with his spiritual
advisor, as well as family and friends, in the morning. Murphy again has in-
person access to his spiritual advisor from 3:00 p.m. to 4:00 p.m. After this
time, he has access to his spiritual advisor via telephone until 5:00 p.m. After
5:00 p.m., he is not allowed access to his spiritual advisor until he enters the
execution chamber—which is normally at 6:00 p.m.—at which time he may
view his spiritual advisor and may chant along with him. 1 The issue in this
case, then, boils down to a single hour.
                                           I.
      In 2000, while serving a 55-year sentence for aggravated sexual assault,
Murphy and six other inmates escaped from a Texas state prison. Murphy v.
Davis, 737 F. App’x 693, 695 (5th Cir. 2018). Roughly two weeks later, during
the robbery of a sporting goods store, the group killed police officer Aubrey
Hawkins when he arrived on the scene. Id. at 696–97. The escapees shot
Hawkins multiple times and drove over him after dragging him from his
vehicle. Id. Six of the seven were eventually captured, convicted of capital


      1Undisputed record evidence shows that persons standing in the front of the viewing
chamber are visible from the execution chamber through a large, clear window. Thus,
Murphy and his spiritual advisor may both engage in their one-word chant in each others’
view.
                                           10
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murder, and sentenced to death. Id. at 697. Murphy, too, was charged with
capital murder, convicted, and sentenced to death. Murphy v. State, No. AP-
74,851, 2006 WL 1096924, at *1 (Tex. Crim. App. Apr. 26, 2006). His direct
appeal and state habeas application failed. Ex parte Murphy, No. WR-63,549-
01, 2009 WL 1900369, at *1 (Tex. Crim. App. July 1, 2009). His federal habeas
claim failed as well. Murphy, 737 F. App’x at 699, 709.
      Murphy’s execution date was scheduled for March 28, 2019. Two days
prior, on March 26, Murphy filed a motion for stay of execution and a complaint
against TDCJ pursuant to 42 U.S.C. § 1983. Murphy v. Collier, 919 F.3d 913,
914 (5th Cir. 2019). The district court denied the stay because it was untimely,
and we affirmed. Id. at 915–16.
      On March 28, 2019, the day Murphy was to be executed, the Supreme
Court stayed his execution. Murphy v. Collier, 139 S. Ct. 1475, 1475 (2019).
In a brief order, the Court stated that Texas could not carry out Murphy’s
execution unless it permitted Murphy’s Buddhist spiritual advisor or another
Buddhist reverend to accompany Murphy in the execution chamber during the
execution. Id. Justice Kavanaugh wrote separately to explain that Texas could
remedy the issue either by allowing all inmates to have a religious advisor of
their religion in the execution chamber or by allowing all inmates to have a
religious advisor only in the viewing room and not in the execution chamber.
Id. at 1475–76 (Kavanaugh, J., concurring). Justice Alito, joined by Justices
Thomas and Gorsuch, dissented from the stay grant on the basis that Murphy
“egregiously delayed in raising his claims.” 2 Id. at 1485 (Alito, J., dissenting).
       Following the Supreme Court’s opinion, Texas revised its execution
procedure to permit only TDCJ-employed security personnel inside the


      2  In response, Justice Kavanaugh, this time joined by the Chief Justice, wrote
separately a second time to discuss his conclusion that Murphy’s claims were timely raised.
Murphy, 139 S. Ct. at 1476–78 (statement of Kavanaugh, J.).
                                            11
                                  No. 19-70020
execution chamber.      Subsequent to that change, Murphy amended his
complaint to challenge TDCJ’s pre-execution holding-area policy, which he
argues still favors Christians and Muslims by giving TDCJ chaplains greater
access to the condemned in the holding area prior to an execution.
      The district court granted Murphy’s motion for stay of execution. TDCJ
appeals and moves to vacate the stay. For the reasons that follow, I would
grant the motion.
                                        II.
      “[T]he courts of appeals shall have jurisdiction of appeals from . . .
[i]nterlocutory orders of the district courts of the United States . . . granting,
continuing, modifying, refusing, or dissolving injunctions.”           28 U.S.C.
§ 1292(a)(1). “Because a capital defendant’s request for a stay is a request for
the district court to enjoin the defendant’s execution,” we have jurisdiction over
this appeal.    Howard v. Dretke, 157 F. App’x 667, 670 (5th Cir. 2005)
(unpublished); see also Mines v. Dretke, 118 F. App’x 806, 812 (5th Cir. 2004)
(unpublished) (“[The plaintiff’s] request for a stay is, at its core, a request for
the district court to enjoin [the plaintiff’s] execution indefinitely. This court
has jurisdiction to review any decision by the district court to grant, continue,
modify, refuse or dissolve an injunction.”).
                                       III.
      “We review a district court’s grant of a stay of execution for abuse of
discretion.” Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012).
                         A. Execution-Chamber Policy
      The district court properly determined that TDCJ has “resolved” the
execution-chamber concerns which led to the Supreme Court’s stay. ECF No.
57 at 9. Murphy recognizes as much and does not present any substantive
argument on appeal that a stay of execution is appropriate on the basis of his
execution-chamber claims. His reference to these claims in the analysis section
                                        12
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of his brief is limited to a footnote wherein he asserts his belief that he “will
likely ultimately prevail on all of his claims.” Accordingly, there is no need to
address the execution-chamber policy further. 3
                       B. Pre-Execution Holding-Area Policy
       On appeal, Murphy states that his new “Establishment Clause claim . . .
pertaining to disparate treatment during the time before an inmate enters the
execution chamber . . . is the one the district court found to be compelling.”
That claim centers on the allegation that in-person visits with outside spiritual
advisors in the holding area must terminate by 4:00 p.m. on the day of the
execution, whereas TDCJ employees—including Christian and Muslim
chaplains—“have access to an inmate until the minute he enters the execution
chamber.”      ECF No. 22 at 13.            Murphy argues that this violates the
Establishment Clause. 4
       To merit a stay of execution, an applicant bears the burden of showing,
among other things, that he “has made a strong showing that he is likely to
succeed on the merits,” among other factors. Nken v. Holder, 556 U.S. 418, 434
(2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).                   “A court
considering a stay must also apply ‘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.’” Hill, 547
U.S. at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)); see also
Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (“A court




       3  Amicus raises issues related to Murphy’s execution-chamber claims. Like the
majority, we cabin our analysis to the issues addressed by the district court and the parties.
       4 Although amicus addresses Murphy’s RLUIPA claims, Murphy himself provides no

substantive argument that a stay of execution is merited on the basis of his RLUIPA claims.
His substantive argument is strictly limited to “the merits of [his] Establishment Clause
claim . . . pertaining to disparate treatment during the time before an inmate enters the
execution chamber.”
                                             13
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may consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.”).     Moreover, under the Prison
Litigation Reform Act of 1995 (PLRA), prisoners challenging prison conditions
“must now exhaust administrative remedies even where the relief sought . . .
cannot be granted by the administrative process.” Woodford v. Ngo, 548 U.S.
81, 85 (2006); Nelson v. Campbell, 541 U.S. 637, 643–50 (2004) (finding that
“method-of-execution challenges” are subject to the PLRA exhaustion
requirement).
       In his initial complaint, filed on March 26, 2019, Murphy did not
challenge TDCJ’s holding-area policy. Nor did he previously alert TDCJ that
he had any issue with the holding-area policy. And on his own admission, he
has never initiated any formal grievance procedure as to any of his religious
accommodation claims.
       For the first time in his amended complaint, filed April 18, 2019, Murphy
claimed that the TDCJ policy “continues to prefer certain religions over others
by giving Christian (and perhaps also Muslim) inmates greater access to
religious clerics of their faith” while in the pre-execution holding area. ECF
No. 22 at 12. The district court granted Murphy’s application for a stay on that
basis, finding that “[t]he concerns raised by the amended complaint’s focus on
the pre-execution procedure are as compelling as those in the original
complaint.” ECF No. 57 at 13.
       However, it is unclear whether the district court opinion analyzed
Murphy’s application under Nken. See 556 U.S. at 434. Although the district
court opinion quotes Nken, it never expressly finds that Murphy “has made a
strong showing that he is likely to succeed on the merits,” Nken, 556 U.S. at
434.   The district court opinion only states that “serious issues remain
unresolved” in Murphy’s case, that Murphy has offered “valid concerns,” that
“the facts are thin” and “[t]he record is not clear yet” as to certain key issues.
                                       14
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ECF No. 57 at 10–13. Murphy responds that, under this court’s decision in
Adams v. Thaler, 679 F.3d 312 (5th Cir. 2012), this court must simply assume
that “the district court made an implicit determination” that he was likely to
succeed on the merits. Id. at 318. Even if the court was to make such an
assumption, however: “in order to assess whether the district court properly
exercised its discretion in granting a stay, we determine whether [the
applicant] has shown a likelihood of success on the merits.” Id. at 318–19.
Here, I would determine that Murphy has not shown a likelihood of success on
the merits.
      First, and preliminarily, Murphy has not demonstrated a likelihood of
success on the merits because his new holding-area claim is untimely. The
TDCJ policy clearly states that spiritual advisor “visits shall occur between
3:00 and 4:00 p.m.,” which should have made it abundantly clear to Murphy
that he would not have physical access to his spiritual advisor after 4:00 p.m.
on his execution date. Even if, as he argued in his last appeal, Murphy did not
receive the text of the policy until March 5, 2019, see Murphy, 919 F.3d at 915–
16, an unacceptable delay nevertheless occurred before he filed his amended
complaint on April 18, 2019.
      Murphy argues that the Supreme Court’s grant of a stay of execution in
his previous appeal conclusively shows that his holding-area claim is timely.
The district court appears to have agreed, remarking in a passing footnote that
“the defendants argue that Murphy has not litigated with diligence, although
the Supreme Court’s earlier stay in this case suggests otherwise.” ECF No. 57
at 5 n.1. Murphy also argues that he only delayed bringing his holding-area
claim because TDCJ did not change its policy until April 2, 2019. Both of these
approaches miss the mark. Even if the Supreme Court’s grant of a stay of
execution—and fractured opinions respecting that stay—were taken as an
implicit conclusion that Murphy’s then-existing claims were timely, Murphy
                                      15
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was not pressing any holding-area claims at that time. Thus, the Supreme
Court’s stay has no bearing on whether claims raised after that stay grant are
timely. Moreover, although TDCJ changed its execution-chamber policy on
April 2, 2019, it did not change its holding-area policy. There is therefore no
reason for Murphy to have waited until after TDCJ’s April 2 revision to press
his holding-area Establishment Clause claim. Because Murphy’s holding-area
claim “could have been brought at such a time as to allow consideration of the
merits without requiring entry of a stay,” Hill, 547 U.S. at 584, I would hold
that the district court abused its discretion in granting the stay.
      Second, and also preliminarily, Murphy has not demonstrated a
likelihood of success on the merits because his new holding-area claim is also
unexhausted.      Murphy acknowledges the “mandatory” nature of the
exhaustion requirement for prison litigation, but again argues that the
Supreme Court’s grant of his stay application should be read as a conclusion
that his holding-area claim has been exhausted despite his failure to engage in
TDCJ’s grievance process. As a basis for such a conclusion, he points to his
late February and early March e-mails to TDCJ’s general counsel regarding
religious accommodations, asserting that these e-mails “satisfied the purpose
of exhaustion doctrine.” But even if e-mails could take the place of grievance
procedures—and even if the Supreme Court’s grant of a stay could be
interpreted as an implicit conclusion that Murphy’s then-existing claims were
exhausted—Murphy overlooks the fact that his e-mails only requested changes
to TDCJ’s execution-chamber policy. Because Murphy’s e-mails did not alert
TDCJ officials that he wanted changes to TDCJ’s holding-area policy, there is
no sense in which those e-mails “satisfied the purpose of exhaustion doctrine.”
      The district court opinion, perplexingly, acknowledged that “[t]he
Supreme Court has not recognized a futility exception to the [PLRA]
exhaustion requirement,” but nevertheless proceeded to find that Murphy
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satisfied the exhaustion rule because “[t]here is no indication in the record that
filing a prison grievance for review by a warden and then administrative staff
would be productive when they have no ability to change TDCJ execution
protocol.” ECF No. 57 at 5 n.1. Not only has the Supreme Court not recognized
a futility exception to the PLRA’s exhaustion requirement, it has affirmatively
held that prisoners must “exhaust administrative remedies even where the
relief sought . . . cannot be granted by the administrative process.” Woodford,
548 U.S. at 85. Therefore, regardless of whether the grievance process would
or would not have resulted in an accommodation acceptable to Murphy, I would
hold that the district court abused its discretion in granting his stay
application despite his failure to exhaust his holding-area claim.
      Third, Murphy has not demonstrated a likelihood of success on the
merits themselves. The standard for determining whether “a prison regulation
impinges on inmates’ constitutional rights” is whether the regulation “is
reasonably related to legitimate penological interests.” Turner v. Safley, 482
U.S. 78, 89 (1987). Murphy argues that we should apply strict scrutiny to his
Establishment Clause claim, rather than Turner. Binding circuit precedent
forecloses such an approach. See Brown v. Collier, 929 F.3d 218, 232 (2019)
(applying the Turner test “even where claims are made under the First
Amendment” (quoting O’Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987))).
      Specifically, under Turner, courts are to consider the following factors:
      First, is there a “‘valid, rational connection’ between the prison
      regulation and the legitimate governmental interest put forward
      to justify it”? Second, are there “alternative means of exercising
      the right that remain open to prison inmates”? Third, what
      “impact” will “accommodation of the asserted constitutional right
      . . . have on guards and other inmates, and on the allocation of
      prison resources generally”? And, fourth, are “ready alternatives”
      for furthering the governmental interest available?

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Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Turner, 482 U.S. at 89–90).
Again, the district court opinion inexplicably fails to actually apply these
factors to Murphy’s new Establishment Clause claim. I therefore analyze
Murphy’s claim on a blank slate.
      Here, TDCJ has offered a legitimate governmental interest—security—
that is rationally related to its holding-area policy.      As TDCJ explains,
execution days are frenetic. Record evidence discusses how executions often
prompt the arrival of a throng of media members, demonstrators, counter-
demonstrators, and various persons related to the condemned and the victim,
sometimes numbering in the hundreds. ECF No. 39-10. In addition to the
security concerns caused by the crowds, the entrance of spiritual advisors into
the facility poses special concerns. Record evidence also relates incidents
where “religious volunteers . . . attempted to bring illicit drugs, alcohol, and
other contraband” into the facility. ECF No. 39-19. TDCJ’s policy of restricting
physical access to inmates to 4:00 p.m. on the day of their execution is
rationally related to this interest. See Murphy, 139 S. Ct. at 1475 (“[T]here are
operational and security issues associated with an execution by lethal
injection. Things can go wrong and sometimes do go wrong . . . .”). For the
same reasons, an attempt to accommodate Murphy’s request to have his
outside spiritual advisor physically present with him up until he enters the
execution chamber would further tax TDCJ security resources at the time they
are already most challenged and further endanger TDCJ personnel.
      In addition, Murphy has several avenues for communication with his
spiritual advisor available. Undisputed evidence shows that Murphy may visit
with his spiritual advisor, as well as family and friends, in the morning of the
execution day. ECF 39-2 at 8. Moreover, he again has in-person access to his
spiritual advisor from 3:00 p.m. to 4:00 p.m. ECF No. 39-2 at 10. Then, he
may speak with his spiritual advisor on the phone until 5:00 p.m. See ECF No.
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38-13 at 28, 32–33. Finally, his spiritual advisor may stand in the viewing
room while Murphy is in the execution chamber, where he is clearly visible
through a large window. ECF No. 39-9 at 3–5. To the extent Murphy desires
to have his spiritual advisor’s physical presence in the small window of time
between 5:00 p.m. and the execution itself, he has not demonstrated that this
interest outweighs TDCJ’s compelling security interest. And Murphy does not
suggest any “ready alternatives” for furthering that compelling security
interest, instead simply asserting that TDCJ’s security resources are sufficient
to accommodate his spiritual advisor’s physical presence. This is far from “a
strong showing that he is likely to succeed on the merits.” Nken, 556 U.S. at
434. As a result, I would hold that the district court abused its discretion in
granting his application for a stay. 5
                                             IV.
       In conclusion, I would hold that the district court abused its discretion
when it granted a stay of execution. Murphy did not demonstrate that he is
likely to succeed on his brand-new, untimely, and unexhausted pre-execution
holding-cell claim. I therefore must dissent.




       5 Murphy has not shown a likelihood of success on the merits for an additional reason:
he fails to persuasively explain why his claims are not barred by the statute of limitations.
Claims brought under 42 U.S.C. § 1983 challenging execution procedures are subject to the
relevant state personal-injury limitations statute. See Walker v. Epps, 550 F.3d 407, 412–14
(5th Cir. 2008). The relevant statute here creates a two-year limitations period, see Tex. Civ.
Prac. & Rem. Code Ann. § 16.003(a), and the claim accrues on “the date direct review of an
individual case is complete or the date on which the challenged protocol was adopted,”
Walker, 550 F.3d at 414–15.
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