                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                       F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                      February 14, 2006
                            FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk


                                   06-70007



     CLYDE SMITH, JR.,

                                                 Plaintiff-Appellant,

                                        v.

     GARY L JOHNSON, EXECUTIVE DIRECTOR,
     TEXAS DEPARTMENT OF CRIMINAL JUSTICE;
     DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT
     OF CRIMINAL JUSTICE, CORRECTIONAL
     INSTITUTIONS DIVISION;
     CHARLES O’REILLY, Senior Warden,
     Huntsville Unit;
     UNKNOWN EXECUTIONERS,

                                                 Defendants-Appellees.



         Appeal from the United States District Court for the
             Southern District of Texas, Houston Division




Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     The       plaintiff-appellant,     Clyde     Smith,   Jr.    (Smith),       is

scheduled to be executed on February 15, 2006.             Smith appeals the

district court’s dismissal of his suit seeking injunctive relief

pursuant to 42 U.S.C. § 1983.            He alleged that the particular

method    of    execution   used   by   Texas,    lethal   injection,      causes
excruciating pain during an execution in violation of the Eighth

Amendment.   The   district    court       dismissed   the   complaint    with

prejudice, concluding that Smith had failed to provide a reasonable

justification for his delay in bringing the Eighth Amendment

challenge to method of execution.            The district court expressly

recognized that it did not have to determine whether the Eighth

Amendment claim is cognizable under § 1983 because Fifth Circuit

precedent holds that Smith is not entitled to equitable relief due

to his dilatory filing.

     The district court correctly applied our precedent.                 This

Court has held that “[a] challenge to a method of execution may be

filed any time after the plaintiff’s conviction has become final on

direct review.”    Neville v. Johnson, __ F.3d __, 2006 WL 291292

(5th Cir.    Feb. 8, 2006) (citing White v. Johnson, 429 F.3d 572,

574 (5th Cir. 2005)).   Further, we have made clear that waiting to

file such a challenge just days before a scheduled execution

constitutes unnecessary delay.         Harris v. Johnson, 376 F.3d 414,

417-19 (5th Cir. 2004).       Although Smith’s direct appeal has been

final for more than nine years,1 he did not file the instant

complaint until five days before his scheduled execution.                Smith

“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


     1
         Smith v. State, No. 71,800 (April 3, 1996) (unpublished).

                                       2
at 417.    Whether or not Smith properly states a claim under § 1983,

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

filing.    Smith has been on death row for more than nine years but

decided to wait to challenge a procedure for lethal injection that

has been used by the State during his entire stay on death row.

See White, 429 F.3d at 574 (reaching the same conclusion when

petitioner filed after six years); see also Harris, 376 F.3d at

417.      Nonetheless, Smith contends that he has not delayed in

bringing    suit   because   his   execution   was    not   scheduled   until

September 9, 2005.     Smith concedes that our very recent ruling in

Neville, 2006 WL 291292, is “adverse” to his claim.            Smith offers

no other reason for the delay.      Neville controls and requires us to

affirm the district court’s dismissal of this claim.

       Smith also asks this Court to stay the execution pending the

Supreme Court’s decision in Hill v. Crosby, 05-8794, 2006 WL 171583

(Jan. 25, 2006) (granting certiorari), a case also involving a

challenge to the method of execution. In Neville, we declined such

an invitation, explaining that Fifth Circuit precedent “remains

binding until the Supreme Court provides contrary guidance.”             2006

WL 291292 at *1 (citation omitted).             Moreover, the questions

presented to the Supreme Court concern whether an Eighth Amendment

claim is cognizable under § 1983 or should be construed as a habeas

corpus petition under 28 U.S.C. § 2254.              Our precedent has not

reached these questions; instead, we have denied equitable relief


                                      3
based on the dilatoriness of the filing.

     Accordingly, for the above reasons, we AFFIRM the district

court’s dismissal of Smith’s complaint and DENY the motion for stay

of execution.




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