     Case: 14-70020      Document: 00512627272         Page: 1    Date Filed: 05/12/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-70020                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
ROBERT JAMES CAMPBELL,                                                      May 12, 2014
                                                                      Lyle W. Cayce
                                                 Plaintiff–Appellant,      Clerk
v.

BRAD LIVINGSTON, ET AL.,

                                                 Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:14-CV-1241


Before STEWART, Chief Judge, DENNIS and ELROD, Circuit Judges.
PER CURIAM:*
       Petitioner Robert James Campbell is scheduled to be executed in Texas
(the “State”) after 6:00 PM on Tuesday, May 13, 2014. Campbell moved for a
preliminary injunction or a temporary restraining order to prevent the State
from using its execution protocol until the State discloses more information
about the drug that it plans to use. The district court denied Campbell’s
motion.     Campbell now requests that this court grant him a preliminary
injunction and order the State to disclose information regarding the drug that



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 14-70020       Document: 00512627272         Page: 2     Date Filed: 05/12/2014



                                       No. 14-70020
will be used in Campbell’s execution. Campbell also filed a motion to stay on
his 42 U.S.C. § 1983 claim. 1 We AFFIRM the district court’s denial of the
preliminary injunction and DENY the motion to stay.
                                              I.
       Campbell was convicted of capital murder and sentenced to death for the
1991 rape and murder of Alexandra Rendon. The Texas Court of Criminal
Appeals affirmed Campbell’s conviction and sentence on direct appeal, and the
Supreme Court denied his petition for certiorari.               Campbell v. State, 910
S.W.2d 475 (Tex. Crim. App. 1995), cert. denied, 517 U.S. 1140 (1996).
Campbell’s state application for a writ of habeas corpus was denied by the
Texas Court of Criminal Appeals. Ex parte Campbell, No. 44,551-01 (Tex.
Crim. App. Mar. 8, 2000). Campbell then filed his federal habeas petition,
which the district court denied. Campbell v. Cokrell, No. H-00-3844 (S.D. Tex.
Mar. 20, 2003).       Both the district court and the Fifth Circuit declined a
certificate of appealability. Campbell v. Dretke, 117 F. App’x 946 (5th Cir.
2004). While his federal habeas application was still pending, Campbell filed
a second state habeas application raising an Atkins claim. The Texas Court of
Criminal Appeals dismissed the application as an abuse of the writ. Ex parte
Campbell, No. WR-44,551-02 (Tex. Crim. App. July 2, 2003).
       Campbell next sought leave to file a successive federal habeas
application raising an Atkins claim. The Fifth Circuit denied leave, holding
that Campbell failed to make a prima facie showing of mental retardation. In
re Campbell, 82 F. App’x 349 (5th Cir. 2003). In 2006, Campbell filed a third
state habeas application raising Brady and actual innocence claims. The Texas




       1This opinion only rules on the motion to stay with respect to Campbell’s § 1983 claim.
Campbell has also filed an Atkins claim and a corresponding motion to stay, which we do not
address here.
                                              2
    Case: 14-70020    Document: 00512627272     Page: 3   Date Filed: 05/12/2014



                                 No. 14-70020
Court of Criminal Appeals dismissed the application as an abuse of writ. Ex
parte Campbell, 226 S.W.3d 418, 425 (Tex. Crim. App. Apr. 25, 2007).
      In 2012, Campbell filed his fourth state habeas application, raising
alleged error in the jury charge. Ex parte Campbell, No. AP-76,907 (Tex. Crim.
App. Nov. 7, 2012). The Texas Court of Criminal Appeals looked past the state
procedural rule on successive state habeas applications and denied the claim
on the merits. The Supreme Court denied certiorari. Campbell v. Texas, 134
S. Ct. 53 (2013).
      On May 6, 2014, Campbell filed a Section 1983 complaint in the United
States District Court for the Southern District of Texas. He sought a TRO to
stay his execution and to have the State ordered to disclose information about
the lethal drug that would be used to execute him. On May 9, 2014, the district
court denied the motion. Campbell appeals.
                                      II.
      The Supreme Court recognized a narrow exception to the general rule
that prevents federal courts from granting stays where a state’s execution
procedures would not comport with the Constitution. See Baze v. Rees, 553
U.S. 35, 61 (2008). Filing a “§ 1983 [action] does not entitle the complainant
to an order staying an execution as a matter of course.” Hill v. McDonough,
547 U.S. 573, 583–85 (2006). Rather, “a stay of execution is an equitable
remedy that is not available as a matter of right, and equity must be sensitive
to the State’s strong interest in enforcing its criminal judgments without
undue interference from the federal courts.” Nelson v. Campbell, 541 U.S. 647,
649–50 (2004).
      To be entitled to a preliminary injunction, a movant must establish (1) a
likelihood of success on the merits; (2) a substantial threat of irreparable
injury; (3) that the threatened injury if the injunction is denied outweighs any
harm that will result if the injunction is granted; and (4) that the grant of an
                                       3
      Case: 14-70020   Document: 00512627272    Page: 4    Date Filed: 05/12/2014



                                 No. 14-70020
injunction will not disserve the public interest. Sells v. Livingston, No. 14-
70014, 2014 WL 1357039, at *2 (5th Cir. Apr. 7, 2014) (citing Janvey v. Alguire,
647 F.3d 585, 595 (5th Cir. 2011)).
                                      III.

       Campbell seeks information about the pentobarbital the TDCJ plans to
use during his scheduled execution, including the source of the drug, how it is
prepared, and who has tested it.       Campbell is scheduled to be executed
consistent with the TDCJ’s July 9, 2012, Execution Procedure. Texas has
disclosed that it plans to administer a five-gram dose of pentobarbital obtained
from a licensed compounding pharmacy within the United States. The specific
batch in question has been tested by an independent lab, has a potency of
108%, and is free of contaminants. The State of Texas has used pentobarbital
in the last ten executions. “The single-drug protocol is valid.” Id. (citing
Thorson v. Epps, 701 F.3d 444, 447 n.3 (5th Cir. 2012)).
       Campbell’s request is nearly identical to the request made in Sells,
where the inmates sought
       the source of the pentobarbital, documentation reflecting the
       purpose of the drug, the timing and means of storage of the drug,
       the date of manufacture/missing of the drug, any lot numbers
       which may exist, the raw ingredients used to make the drug and
       the source of same, the testing that was conducted on the drug and
       the results of that testing, and the laboratory and names of its
       personnel which conducted the testing.

Id.    The Sells court denied the inmates’ request because “[n]o appellate
decision had yet held that obtaining information about execution protocols was
a liberty interest, which meant that failing to disclose could not be a due-
process violation.” Id. at *3.
       A death row inmate is entitled to an injunction if he points to “some
hypothetical situation, based on science and fact, showing a likelihood of severe

                                       4
    Case: 14-70020       Document: 00512627272   Page: 5   Date Filed: 05/12/2014



                                  No. 14-70020
pain.” Whitaker v. Livingston, 732 F.3d 465, 468 (5th Cir. 2013). Campbell
speculates that there are unknowns regarding the drug to be used. “[M]ere
speculation is not enough.” Id. at 469. Pursuant to binding precedent, we
conclude that Campbell has not shown a likelihood of success on his
constitutional claims.
      We AFFIRM the district court’s denial of the preliminary injunction and
DENY the motion to stay.




                                        5
