                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                      June 1, 2006
                            FO R TH E TENTH CIRCUIT              Elisabeth A. Shumaker
                                                                     Clerk of Court

    JOH N A LBERT BO LTZ,

             Plaintiff - Appellee,

    v.                                                 No. 06-6184
                                                 (D.C. No. CIV-06-587-F)
    (1) JUSTIN JONES, in his capacity as               (W .D. Okla.)
    Director of the Oklahoma D epartment
    of Corrections; (2) M AR TY
    SIRM ONS, in his capacity as W arden,
    Oklahoma State Penitentiary;
    (3) ERNEST GODLOVE, (4) D AVID
    HENNEKE, (5) TED LOGAN, (6) W .
    M AR K LU TTRULL, (7) RO BERT L.
    RAINEY, (8) ERNEST D. W ARE, and
    (9) BEVERLY YOUNG, in their
    capacities as members of the
    Oklahoma Board of Corrections, and
    (10)-(60) DOES 1-50, UNKNOW N
    EXECUTIONERS, in their capacities
    as Employees and/or Agents of the
    Oklahoma Department of Corrections,

             Defendants - Appellants.



                             OR D ER AND JUDGM ENT *


Before TA CH A, O’BRIEN, and TYM KOVICH, Circuit Judges.




*
  This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      The matter of John Albert Boltz’s impending execution by lethal injection

is once again before the court, this time for appellate review of a district court

order granting Boltz’s motion for a temporary restraining order (TRO) staying his

execution in conjunction with an action he filed this week under 42 U.S.C. § 1983

challenging the pharmaceutical means by which the execution will be

accomplished. Though the order is denominated a TRO rather than an injunction,

we have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). See Duvall v. Keating,

162 F.3d 1058, 1062 (10th Cir. 1998).

      W e review the district court’s order under an abuse of discretion standard.

See Bow ersox v. William s, 517 U.S. 345, 346 (1996); Hauser ex rel. Crawford v.

M oore, 223 F.3d 1316, 1321 (11th Cir. 2000). W e vacate the stay of execution

for reasons previously expressed in relevant portions of our order of M ay 26,

2006, in Boltz v. Sirmons, Appeal No. 06-6174, denying Boltz’s initial effort to

stay his execution in conjunction with a dispute over whether appointed counsel

would be compensated under 18 U.S.C. § 3599 (formerly 21 U.S.C. § 848(q)) for

assistance he might provide in a § 1983 action. Specifically, in light of (a) the

unlikelihood of success on the merits of the underlying action, both as to the use

of § 1983 to raise a constitutional challenge to the lethal injection procedure and

as to the constitutional challenge itself, (b) the State’s interest in the timely

effectuation of its final criminal judgments, (c) the public’s interest in the orderly

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administration of its criminal justice system free from belated efforts to derail it,

and (d) Boltz’s unnecessary delay in bringing this challenge, we conclude that a

stay of his execution is clearly inappropriate.

      The district court’s ruling on the motion to stay execution is REVERSED

and its temporary restraining order is VACATED. An active member of the court

called for a poll pursuant to Fed. R. App. P. 35, and en banc review was granted.

A majority of the en banc court joins in the panel’s disposition of this appeal.

Because Judges Lucero and H artz would hold that the district court did not abuse

its discretion they would affirm the district court’s order. W e advise the parties

that the court will not reconsider a decision with respect to en banc review. See

10th Cir. R. 35.1(C). The mandate shall issue forthwith.



                                                Entered for the Court

                                                Per Curiam




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