                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-24


DARICK DEMORRIS WALKER,

                  Plaintiff – Appellant,

             v.

GENE   M.  JOHNSON,  Director,  Commonwealth  of  Virginia
Department of Corrections, Richmond, Virginia; GEORGE M.
HINKLE, Warden, Greensville Correctional Center, Jarratt,
Virginia; LORETTA K. KELLY, Warden, Sussex I State Prison,
Waverly, Virginia,

                  Defendants – Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:05-cv-00934-CMH-TR)


Submitted:    February 10, 2009              Decided:   May 13, 2009


Before WILLIAMS, Chief Judge, and TRAXLER and GREGORY, Circuit
Judges.


Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a separate concurring opinion.


Danielle Spinelli, Eric R. Columbus, Will L. Crossley, Jr.,
WILMER CUTLER PICKERING HALE & DORR, LLP, Washington, D.C., for
Appellant. Robert F. McDonnell, Attorney General, Richard C.
Vorhis, Senior Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

        On August 10, 2005, Darick Demorris Walker, a death row

inmate, filed this 42 U.S.C.A. § 1983 (West 2003) action in the

Eastern District of Virginia, challenging the constitutionality

of the lethal injection protocol that the State of Virginia will

use to execute him.               On September 11, 2006, the district court

granted     the          Defendants’      motion       for     summary       judgment      and

dismissed the case.               We held Walker’s appeal of the district

court’s ruling in abeyance pending resolution of the district

court    proceedings         on   remand     from       our    decision      in   Walker   v.

Kelly,    195       F.    App’x   169     (4th       Cir.    2006),   a   case    involving

Walker’s petition for a writ of habeas corpus.

     While we held this appeal in abeyance, the United States

Supreme Court decided Baze v. Rees, 128 S. Ct. 1520 (2008),

rejecting       a    challenge       to     the       State    of     Kentucky’s     lethal

injection protocol, and in Emmett v. Johnson, 532 F.3d 291 (4th

Cir. 2008), we upheld Virginia’s lethal injection protocol—the

same protocol at issue in this case—as constitutional within the

guidelines set forth in Baze.                         See Emmett, 532 F.3d at 308

(granting       summary       judgment      in       favor    of    the   defendants       and

concluding      that       “Virginia's      protocol         for    lethal   injection     is

substantially similar to that approved by the Supreme Court in

Kentucky”).



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       Both parties agree that we are bound by our decision in

Emmett, * and we therefore affirm the district court’s grant of

summary judgment in favor of the Defendants.                   We dispense with

oral       argument   because    the    facts   and   legal    contentions    are

adequately      presented   in    the    materials    before    the   court   and

argument would not aid the decisional process.

                                                                       AFFIRMED




       *
       Indeed, Walker admits that he submitted his appellate
brief only to preserve for further appellate review his argument
that Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008), was
wrongly decided.



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GREGORY, Circuit Judge, concurring:

     For   the   reasons     set   forth       in     my   dissent       in   Emmett    v.

Johnson,   532   F.3d     291,   308-12       (4th    Cir.    2008)      (Gregory,     J.,

dissenting),     I   believe      that    the        Emmett       majority    erred     in

summarily concluding that the Virginia legal injection protocol

is   substantially      similar     to        the    Kentucky       legal     injection

protocol   upheld    in    Baze    v.    Rees,       128     S.    Ct.   1520   (2008).

However, I am constrained by our precedent in Emmett, and thus I

must concur in the judgment in this case.




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