                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                                                                   March 27, 2006
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                 Charles R. Fulbruge III
                                                                       Clerk
                        _______________________

                              No. 06-70012
                        _______________________


                        KEVIN CHRISTOPHER KINCY,
                                                Petitioner-Appellant,

                                  versus

     BRAD LIVINGSTON, Executive Director, Texas Department of
  Criminal Justice; DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
   CRIMINAL JUSTICE, CORRECTION INSTITUTIONS DIVISION; CHARLES
   O’REILLY, Senior Warden, Huntsville Unit Huntsville, Texas;
                     and UNKNOWN EXECUTIONERS,
                                             Defendants-Appellees.



            Appeal from the United States District Court
                 for the Southern District of Texas
                          No. 4:06-CV-00689


Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.

PER CURIAM:*

           Plaintiff-Appellant Kevin Kincy (“Kincy”) is scheduled to

be executed on March 29, 2006.       Kincy appeals the district court’s

dismissal of his suit for injunctive relief pursuant to 42 U.S.C.

§ 1983.    He alleges that the method of execution used by Texas,



     *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
lethal injection, may cause excruciating pain in violation of the

Eighth and Fourteenth Amendments.           The district court, citing

Fifth   Circuit    precedent,     dismissed     Kincy’s   complaint     with

prejudice,   concluding    that     Kincy     unnecessarily   delayed    in

challenging the method of execution.          The district court did not

determine whether Kincy’s Eighth or Fourteenth Amendment claims are

cognizable under § 1983 because circuit precedent holds that Kincy

is not entitled to equitable relief due to his dilatory filing.

Before this court, Kincy requests a stay of execution.         Because we

agree with the analysis of the district court, we AFFIRM its

dismissal of Kincy’s complaint and DENY his request for a stay.

          Kincy has been on death row for over ten years.               His

sentence and conviction became final on April 21, 1998, nearly

eight years ago.   Still, Kincy did not bring the instant challenge

to the method of his execution until twenty-seven days prior to his

scheduled execution.

          The district court correctly applied our precedent. This

court has held on numerous occasions that “[a] challenge to a

method of execution may be filed at any time after the plaintiff’s

conviction has become final on direct review.” Neville v. Johnson,

__ F.3d __, 2006 U.S. App. LEXIS 3096 (5th Cir. Feb. 8, 2006)

(citing White v. Johnson, 429 F.3d 572, 574 (5th Cir. 2005)), cert.

                                     2
denied, Neville v. Livingston, 2006 U.S. LEXIS 1008 (Feb. 8, 2006);

Smith v. Johnson, __ F.3d __, 2006 U.S. App. LEXIS 3527 (5th Cir.

Feb. 14, 2006)(quoting Neville).                  We have also made clear that

waiting to    file    such    a   challenge         shortly     before   a    scheduled

execution    constitutes     unnecessary           delay.       Harris   v.     Johnson,

376 F.3d 414, 417-19 (5th Cir. 2004), cert. denied, Harris v.

Dretke, 542 U.S. 953 (2004).            Kincy had nearly eight years in which

he could have litigated his claim for relief under § 1983; he

therefore “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.”                         Harris,

376 F.3d at 417.

            Regardless whether he now states a claim under § 1983,

Kincy is not entitled to the relief he seeks due to his dilatory

filing.   He has been on death row for over ten years but waited to

challenge a procedure for lethal injection that has been used by

Appellees    during   his    entire      stay      on   death    row.     See     Smith,

2006 U.S. App. LEXIS 3527 at *3 (reaching the same conclusion when

petitioner    filed   after       nine    years);       White,    429    F.3d    at   574

(reaching the same conclusion when petitioner filed after six

years); see also Harris, 376 F.3d at 417. Kincy’s contentions that

imminence    of   execution        is    a       prerequisite     for    standing,     a

                                             3
requirement for ripeness, and a prerequisite for entitlement to

prospective injunctive relief are contradicted by the holdings of

Neville and White, discussed supra. Further, in Harris, this court

explicitly stated that a challenge should not be brought when the

execution is “an imminent or impending danger.”             Harris, 376 F.3d

at 418; see also White, 429 F.3d at 574 (A “last-minute challenge

to the method of execution is improper.”).              Kincy’s decision to

delay his filing until twenty-seven days before his scheduled

execution constitutes unnecessary delay.           See Harris, 376 F.3d at

416.       Harris and Neville control and require us to affirm the

district court’s dismissal of this claim.

              The district court properly considered Kincy’s attempts

to distinguish his case from prior cases, such as Smith, Neville,

White, and Harris, and found them unavailing.1            We agree, noting,

as did the district court, that the instant case falls squarely

within the holdings of the aforementioned cases and compels denial

of a stay.




       1
            The fact that Kincy challenges the state of Texas’s “cut down”
procedure in addition to objecting to the chemicals used in the lethal injection
process does not meaningfully distinguish his case from the above cited cases.
A prisoner delays unreasonably in waiting until the last minute to bring any
method of execution challenge that could have been brought after his conviction
and sentence became final.

                                       4
            To the extent that Kincy contends his execution should be

stayed pending the Supreme Court’s decision in Hill v. Crosby,

__ U.S. __, 126 S. Ct. 1189 (2006)(granting certiorari), we decline

to do so.    In Neville, we explained that Fifth Circuit precedent

“remains    binding   until    the    Supreme   Court   provides    contrary

guidance.” __ F.3d at __, 2006 U.S. App. LEXIS 3096 at *3.

Moreover,   the   Supreme     Court   has   denied   certiorari    in   recent

challenges, filed after the Hill certiorari grant, to Texas’s

lethal injection protocol.       See, e.g., Smith, 2006 U.S. LEXIS 1090

(Feb. 15, 2006).

            For the foregoing reasons, we AFFIRM the district court’s

dismissal of Kincy’s complaint and DENY Kincy’s motion for a stay

of execution.




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