           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         February 8, 2010
                                       No. 10-70002
                                                                      Charles R. Fulbruge III
                                                                              Clerk


HENRY W. SKINNER,

                                                  Plaintiff-Appellant,

versus

LYNN SWITZER,
District Attorney for the 31st Judicial District of Texas,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 2:09-CV-0281




Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 10-70002

       Henry Skinner, convicted of capital murder and sentenced to death,1 is ap-
pealing the dismissal of his complaint under 42 U.S.C. § 1983 in which he as-
serts that the defendant district attorney’s refusal to allow him access to biologi-
cal evidence for purposes of forensic DNA testing violates his Fourteenth
Amendment right to due process and his Eighth Amendment right to be free
from cruel and unusual punishment. The district court adopted the report and
recommendation of the magistrate judge and granted defendant’s motion to dis-
miss. This court affirmed on the basis of binding circuit precedent. Skinner v.
Switzer, No. 07-70017, 2010 WL 338018, at *1 (5th Cir. Jan. 28, 2010) (per curi-
am) (citing Kutzner v. Montgomery County, 303 F.3d 339 (5th Cir. 2002), as bind-
ing and Richards v. District Attorney’s Office, No. 09-10144, 2009 U.S. App.
LEXIS 26947 (5th Cir. Dec. 10, 2009) (per curiam) (unpublished), as persuasive).
       Execution is set for February 24, 2010. On February 1, 2010, Skinner
moved in the district court for a stay of execution pending appeal. On Febru-
ary 2, the district court dismissed the motion for want of jurisdiction.
       Skinner moves this court for an injunction prohibiting the Texas Depart-
ment of Criminal Justice from executing him until all appeals have been re-
solved. He acknowledges that the position he is taking is “squarely foreclosed
in this circuit by Kutzner” and “that, according to longstanding precedent and
practice of this Court, stays will not be granted for purposes of seeking relief
from the Supreme Court on an issue as to which Fifth Circuit law is settled
against the appellant, even when the Supreme Court has already granted certi-
orari on the same issue in another case” (citing Kelly v. Quarterman, 296 F.
App’x 381, 382 (5th Cir.), cert. denied, 129 S. Ct. 444 (2008)). Skinner relies on
the fact that the Supreme Court granted certiorari on the issue, but ultimately
did not decide it, in District Attorney’s Office v. Osborne, 129 S. Ct. 2308 (2009).

       1
        See Skinner v. Quarterman, 576 F.3d 214 (5th Cir. 2009), petition for cert. filed (Nov.
23, 2009) (No. 09-7784).

                                              2
                                No. 10-70002

     Skinner candidly “recognizes that it is unlikely that this Court will issue
the stay requested by this Motion.”       He properly raises the issue here,
nonetheless, to preserve it for possible Supreme Court consideration, citing
SUPREME COURT RULE 23.
     The motion, whether treated as a motion for stay of execution or a motion
for injunction, is DENIED. The mandate has already issued.




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