                                                      United States Court of Appeals
                                                               Fifth Circuit

                      REVISED JUNE 26, 2006
                                                            F I L E D
                                                             June 20, 2006
              IN THE UNITED STATES COURT OF APPEALS
                                                        Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                     Clerk

                           No. 06-70026


                          LAMONT REESE,
                                          Plaintiff-Appellant,

                              versus

               BRAD LIVINGSTON; NATHANIEL QUARTERMAN,
         Director, Texas Department of Criminal Justice,
                 Correctional Institutions Division;
            CHARLES O’REILLY, Senior Warden, Huntsville
          Unit, Huntsville, Texas; UNKNOWN EXECUTIONERS,
                                          Defendants-Appellees.


          Appeal from the United States District Court
               For the Northern District of Texas



Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

     Proceeding under 42 U.S.C. § 1983, Lamont Reese seeks a stay

of his execution scheduled for June 20, 2006.        He attacks the

method of execution by injection as administered in Texas as cruel

and unusual punishment under the Eighth Amendment.    The suit does

not challenge the conviction or sentence of death.

                                I

     On December 8, 2000, following his conviction for capital

murder in the 371st Judicial District Court of Tarrant County,

Texas, Reese was sentenced to death.   The Texas Court of Criminal

Appeals affirmed his judgment and sentence.    Reese v. State, No.
23,989 (Tex. Crim. App. Nov. 6, 2002), cert. denied, Reese v.

State, 123 S. Ct. 2581 (2003).      Reese filed a state petition for

habeas corpus on July 16, 2002, and a supplemental application on

January 31, 2003.   The Texas Court of Criminal Appeals denied the

petition. Ex Parte Reese, Nos. 55,443-01 and 55,443-02 (Tex. Crim.

App. Apr. 30, 2003).        Turning to the federal courts, Reese’s

application for COA was denied by this Court on May 4, 2004.          See

Reese v. Dretke, No. 03-10839 (5th Cir. 2004) (unpublished), and

the Supreme Court denied certiorari on October 18, 2004.          Reese v.

Dretke, 543 U.S. 944 (2004).      Proceeding under 42 U.S.C. § 1983,

this suit was filed in the United States District Court, Northern

District of Texas, on May 25, 2006.

                                   II

     Reese seeks relief under 42 U.S.C. § 1983 from two claimed

violations from threatened injuries.          First, Reese requests “a

permanent injunction prohibiting Defendants from injecting him with

three chemicals that (1) unnecessarily increase the risk of torture

during   the   execution;   and   (2)   are   superfluous   and    wholly

unnecessary to effect lethal injection.        Second, [Reese] requests

that this Court enter an injunction prohibiting Defendants from

utilizing any invasive medical procedures to gain venous access for

the lethal injection, at least until and unless he is made aware

under what circumstances and standards those procedures will occur

and those standards are sufficient to protect [his] medical needs.”


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                                        III

     The   challenge      to    the    chemical   formulation    used   in   the

execution, as well as a cut down procedure used to reach veins not

otherwise reachable, are the same as put forward in other cases ––

that persons are subjected to the high risk of unnecessary and

extreme pain and entail procedures that done at all ought be done

only by trained medical personnel.              We will not pause to repeat

them.

                                         IV

     As for Hill’s request for a stay, the State responds that the

request is untimely and should be denied, pointing to decisions of

the Supreme Court in Hill v. McDonough, No. 05-8794 (June 12,

2006), and Nelson v. Campbell, 541 U.S. 637 (2003), as well as the

decisions of this court in Harris v. Johnson, 376 F.3d 414 (5th

Cir. 2004), and White v. Johnson, 429 F.3d 572 (5th Cir. 2005).

Reese contends that Harris and White have been undermined by the

Supreme Court’s decision in Hill.

     We disagree.         The question in Hill was whether a similar

challenge “must be brought by an action for a writ of habeas corpus

. . . or whether it may proceed as an action for relief under 42

U.S.C. § 1983.”        Hill, at *3.     Hill was not focused on the timing

of the filing, the question we face here.                   Even when properly

brought    under   §    1983,    the    Court   did   not   retreat   from   the

requirements for obtaining a stay, stating that “inmates seeking


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time to challenge the manner in which the State plans to execute

them must satisfy all of the requirements for a stay, including a

showing of a significant possibility of success on the merits.”

Hill, at *8.     Further, the Court emphasized that “[t]he federal

courts can and should protect States from dilatory or speculative

suits . . . .”    Id.

     Moreover, it is significant that, while not passing on the

particular determination, the Court cited our decision in White v.

Johnson, 429 F.3d 572 (5th Cir. 2005), as one of “a number of

federal courts [that] have invoked their equitable powers to

dismiss suits . . . filed too late in the day.”   Id. at *8.   There,

we dismissed White’s similar challenge, filed several years after

his conviction became final on direct review, because he could have

brought the claim much earlier.   See, e.g., Neville v. Johnson, 440

F.3d 221, 222 (5th Cir. 2006) (“A challenge to a method of

execution may be filed any time after the plaintiff’s conviction

has become final on direct review.”).     Here, Reese’s conviction

became final in 2003, once the Texas Court of Criminal Appeals

affirmed his conviction and sentence and the Supreme Court denied

certiorari.    See Reese v. State, No. 23,989 (Tex. Crim. App. Nov.

6, 2002), cert. denied, Reese v. State, 123 S. Ct. 2581 (2003).

Reese’s late claim is no different than the late claim in White,

and we are not persuaded that Hill has undermined the decisions of




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this Court insisting upon a timely filing or that until Hill the

suit could not have been brought.

     Further,   the    Court   in   Hill   insisted   that   “[a]   court

considering a stay must also apply ‘a strong equitable presumption

against the grant of a stay where a claim could have been brought

at such a time as to allow consideration of the merits without

requiring entry of a stay.’”    Hill at *8.   Timely filing would have

afforded opportunity for developing facts and considered resolution

of the merits of the repeated charges being leveled against this

method of execution.    Testimony in open court can cast away shadows

and allow a principled decision of the merit of the assertions of

all concerned –– rather than forcing courts to choose between

speculative assertions and “just trust me” responses.         As we read

Hill, a plaintiff cannot wait until a stay must be granted to

enable it to develop facts and take the case to trial –– not when

there is no satisfactory explanation for the delay.          We find this

suit with its request for equitable relief to be untimely.

     The request for stay of execution is DENIED as untimely.




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