     Case: 12-70003     Document: 00511751300         Page: 1     Date Filed: 02/08/2012




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

                                                                            FILED
                                                                         February 8, 2012

                                       No. 12-70003                        Lyle W. Cayce
                                                                                Clerk

EDWIN HART TURNER,

                                                  Plaintiff-Appellee
v.

CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; EMMITT L SPARKMAN, Superintendent, Mississippi
State Penitentiary at Parchman,

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                                   (3:12-CV-64)


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Edwin Hart Turner is scheduled to be executed by the State of Mississippi
on February 8, 2012. Seeking to delay his execution, Turner filed a motion for
a temporary restraining order and a preliminary injunction in the district court.
Turner’s motion was based upon a claim that the Mississippi Department of
Corrections had infringed upon his constitutional right of access to the courts.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 12-70003       Document: 00511751300         Page: 2   Date Filed: 02/08/2012



                                       No. 12-70003

The district court, finding that Turner had satisfied the requirements for a
temporary restraining order, granted his motion and halted his execution for 14
days, until February 20, 2012. The State appealed and filed a motion to vacate
the temporary restraining order. For the following reasons, the State’s motion
to vacate the stay of execution is GRANTED.
              I. FACTUAL AND PROCEDURAL BACKGROUND
      Edwin Hart Turner (“Turner”) was convicted of two counts of capital
murder and sentenced to death in February 1997. After pursuing, and failing
to receive, state habeas relief, Turner turned to the federal courts for habeas
corpus relief on the basis of ineffective assistance of counsel. In his federal
habeas proceedings, Turner based his ineffective assistance claim on an
argument that his counsel failed to properly research and present expert
evidence on his longstanding mental illness, which might have mitigated his
death sentence. In February 2010, the U.S. District Court for the Northern
District of Mississippi denied Turner’s petition for a writ of habeas corpus.
Turner v. Epps, No. 4:07CV77-WAP, 2010 WL 653880 (N.D. Miss. Feb. 19, 2010);
Turner v. Epps, No. 4:07CV77-WAP, 2010 WL 1529244 (N.D. Miss. Apr. 15,
2010). The Fifth Circuit denied Turner a certificate of appealability in February
2011. Turner v. Epps, 412 F. App’x 696, 704–06 (5th Cir. 2011). The Supreme
Court denied Turner’s petition for certiorari on January 9, 2012, and the State1
moved to schedule Turner’s execution date.
      On January 17, 2012, prior to the scheduling of his execution, Turner filed
a motion with the Mississippi Supreme Court to secure a psychiatric evaluation
by Dr. Donna Schwartz-Watts (“Schwartz-Watts”) and both a PET scan and an
fMRI scan, all at his own expense. He did so pursuant to the Mississippi




      1
          We refer to defendants–appellants as the State.

                                              2
   Case: 12-70003   Document: 00511751300      Page: 3   Date Filed: 02/08/2012



                                  No. 12-70003

Department of Correction’s (“MDOC”) Standard Operating Procedure 20-01-01
(“SOP”), which provides:
      Any physician, psychologist, sociologist or any other persons
      obtained by an offender’s attorney of record to interview, evaluate
      or otherwise consult with the offender must submit to the normal
      protocol for attorney of record visits with the exception that a court
      order must be obtained prior to setting up the visit.
Turner offered two reasons for seeking access to the evaluation and testing.
First, he contended that such access would support a post-conviction petition
that the Eighth and Fourteenth Amendments bar the execution of individuals
with severe mental disorders or disabilities which, at the time of their offenses,
impair the abilities of such individuals (a) to appreciate the nature,
consequences, or wrongfulness of their conduct; (b) to exercise rational judgment
in relation to their conduct; and (c) to conform their conduct to the requirements
of the law. Second, Turner asserted that expert access would support a petition
for executive clemency. Turner also posited that his constitutional right of
access to the courts guaranteed a right to expert access and testing.
      On January 26, 2012, the Mississippi Supreme Court denied Turner’s
motion for expert access. The court explained that “[a]s Turner’s requests relate
to any eventual petition for clemency from the Governor, the Court finds the
power to grant reprieves and pardons is vested exclusively in the Governor . . .
and any request for testing as it relates to a clemency request should be
dismissed without prejudice. Turner may pursue relief from the Executive
Branch.” Furthermore, as Turner had “failed to exhibit a violation of any federal
or state constitutional or statutory right,” the court concluded that no further
testing or expert evaluation was required in his case. The court also rejected
Turner’s successive motion for post-conviction relief, explaining that Turner had
previously been examined by mental health professionals and failed in two
previous appeals based on the disproportionality of the death sentence given his


                                        3
   Case: 12-70003       Document: 00511751300          Page: 4    Date Filed: 02/08/2012



                                       No. 12-70003

alleged mental illness. The court further denied Turner’s request that it extend
the reasoning of Atkins v. Virginia, 536 U.S. 304 (2002), and Roper v. Simmons,
543 U.S. 551 (2005), to bar the execution of capital petitioners with “severe
mental disorders.” The Mississippi Supreme Court then set Turner’s execution
for February 8, 2012.
       Pursuant to Federal Rule of Civil Procedure 65, Turner filed for a
temporary restraining order (“TRO”) and a preliminary injunction in the U.S.
District Court for the Southern District of Mississippi to halt his execution
pending the resolution of a § 1983 claim regarding the SOP.3 In support of his
motion, Turner made four arguments against the SOP: (1) that it violates
various state and federal statutes governing both post-conviction and executive
clemency applications; (2) that the denial of access to experts in support of a
post-conviction application for relief violates the Due Process Clause of the
Fourteenth Amendment; (3) that the denial of access to experts in support of an
executive clemency petition violates the Due Process Clause of the Fourteenth
Amendment; and (4) that the denial of access to experts violates the Eighth
Amendment’s prohibition on cruel and unusual punishment.
       The district court granted Turner’s request for a TRO and halted his
execution for a period of 14 days, until February 20, 2012, and explained that
prior to that date, it would convene the parties for a conference to determine
whether to extend the injunction. The district court found that Turner had
satisfied the four required elements for the issuance of a TRO.4 The district

       3
        Turner also requested additional relief, including that the State be enjoined from
enforcing the SOP, that the State grant Turner access to experts prior to any decisions
regarding executive clemency and successive post-conviction relief, and that the State grant
Turner access to neuro-imaging tests to be conducted in aid of his applications for both
executive clemency and post-conviction relief.
       4
         See Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011) (A temporary restraining
order requires: “1) a substantial likelihood of success on the merits, (2) a substantial threat
of irreparable injury if the injunction is not issued, (3) that the threatened injury if the

                                              4
   Case: 12-70003       Document: 00511751300         Page: 5     Date Filed: 02/08/2012



                                       No. 12-70003

court “ha[d] no difficulty in finding that the second, third, and fourth prongs . . .
favor[ed] Turner.” The court explained that “an execution achieved through
(what Turner purports to be) an unconstitutional act is a harm that far
outweighs any harm incurred by a delay of Turner’s execution.”
       With respect to the first element, the court found merit in Turner’s
argument that Mississippi’s regulation had denied him the right of access to the
courts. The court framed the issue as “whether the State . . . violated the United
States Constitution by requiring that Turner obtain a court order before he can
be seen by a medical professional in anticipation of litigation.”
       The court concluded that Turner did have a “constitutional right of access
to the courts” based on his request “for prison officials to provide a tool—namely
access to Dr. Schwartz-Watts—in order to attack his death sentence
collaterally.”    The district court also rejected the notion that the SOP is
reasonably related to legitimate penological interests, explaining that the State
“ha[d] not enunciated any practical, security-related result of requiring lawyer-
obtained doctors to secure a court order, and [that] th[e] Court likewise [was]
unable to conceive of one.”
       The district court also dismissed other arguments offered by the State.
First, the district court rebuffed the State’s claim that the three-year statute of
limitations on Turner’s § 1983 claim began when he became an MDOC inmate.
Second, the district court concluded that previous efforts to litigate Turner’s
mental illness were irrelevant because Turner’s action was not a collateral
attack on his sentence, but a § 1983 claim seeking to remove a barrier to
pursuing evidence that might permit Turner to attack his sentence or pursue a
request for clemency.


injunction is denied outweighs any harm that will result if the injunction is granted, and (4)
that the grant of an injunction will not disserve the public interest.”).


                                              5
   Case: 12-70003        Document: 00511751300           Page: 6      Date Filed: 02/08/2012



                                         No. 12-70003

       The State timely filed a notice of appeal and moved to vacate Turner’s stay
of execution.
                                     II. DISCUSSION
A. Jurisdiction
       A circuit court normally has no authority to review a TRO. Faulder v.
Johnson, 178 F.3d 741, 742 (5th Cir. 1999). However, circuit courts do have the
authority to review preliminary injunctions pursuant to 28 U.S.C. § 1292(a)(1)
(permitting interlocutory review of orders “granting, continuing, modifying,
refusing or dissolving injunctions”). Thus, when a “district court’s [granting] of
[a] TRO ha[s] the same practical effect as the granting of a preliminary
injunction, it is immediately appealable under 28 U.S.C. § 1292(a)(1).” Jones v.
Belhaven Coll., 98 F. App’x 283, 284 (5th Cir. 2004); see also Belo Broad. Corp.
v. Clark, 654 F.2d 423, 426 (5th Cir. 1981) (“In certain circumstances the denial
of a requested TRO can be considered denial of a preliminary injunction.”).5
       In determining whether a district court has ordered a TRO or preliminary
injunction:
       The label appended by the requesting party or the judge is not
       conclusive as to its proper characterization. The central inquiry
       goes to the nature and scope of the hearing that precedes the denial
       of the motion. The denial of a so-called temporary restraining order
       is properly appealable when entered after a hearing in which all
       interested parties had an opportunity to participate, thus allowing
       for full presentation of relevant facts.
Belo Broad. Corp, 654 F.2d at 426. As the Supreme Court has explained, in
cases “where an adversary hearing has been held, and the court’s basis for
issuing the order strongly challenged, classification of the potentially unlimited



       5
         The rationale for this position is clear, as “[a] district court, if it were able to shield
its orders from appellate review merely by designating them as temporary restraining orders,
rather than as preliminary injunctions, would have virtually unlimited authority over the
parties in an injunctive proceeding.” Sampson v. Murray, 415 U.S. 61, 86–87 (1974).

                                                 6
   Case: 12-70003    Document: 00511751300      Page: 7    Date Filed: 02/08/2012



                                  No. 12-70003

order as a temporary restraining order seems particularly unjustified.”
Sampson v. Murray, 415 U.S. 61, 87 (1974).
      In the capital context, at least two sister circuits have found TROs halting
executions to be, in effect, preliminary injunctions and subject to appellate
review. In Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007), a Tennessee
inmate filed a complaint challenging the state’s execution procedures and was
granted a temporary restraining order until a hearing scheduled for 10 days
after the grant of the TRO. Id. at 901. The Sixth Circuit held that it had
jurisdiction to review the district court’s decision, concluding that “the [district
court’s] order has the practical effect of an injunction, which simultaneously
operates to stay Workman’s long-delayed execution and to give us authority to
review it.” Id. at 904 (internal quotation marks and citation omitted). Under
similar circumstances and with similar reasoning, the Tenth Circuit also held
that it had jurisdiction to review a district court’s granting of a TRO based on an
inmate’s § 1983 claim challenging Oklahoma’s execution procedures. Boltz v.
Jones, 182 F. App’x 824, 824–25 (10th Cir. 2006).
      Given that the district court took evidence in the form of affidavits,
received written submissions from counsel, and heard oral arguments on this
matter, as well as the fact that the district court’s TRO would delay Turner’s
execution beyond its scheduled date, we conclude that the district court’s order
is a preliminary injunction, rather than a TRO. Consequently, the panel has
jurisdiction to review the district court’s decision pursuant to 28 U.S.C.
§ 1292(a).
B. The Nature of Turner’s Claim
      The State argues that Turner’s lawsuit was not cognizable under § 1983
and rather amounted to a successive habeas petition, over which the district
court lacked jurisdiction. We assume without deciding that Turner’s lawsuit can
be brought pursuant to § 1983.

                                         7
   Case: 12-70003    Document: 00511751300      Page: 8    Date Filed: 02/08/2012



                                   No. 12-70003

      In Skinner v. Switzer, 131 S. Ct. 1289 (2011), the Supreme Court
considered, inter alia, whether “a convicted [Texas capital] prisoner seeking
DNA testing of crime-scene evidence [could] assert . . . a claim in a civil rights
action under 42 U.S.C. § 1983, or [whether the] claim [was] cognizable in federal
court only when asserted in a petition for a writ of habeas corpus under 28
U.S.C. § 2254[.]” Id. at 1293. The Supreme Court concluded that Skinner could
bring his claim as a § 1983 suit. The Court explained that its precedents held
that “[w]hen ‘a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,’     . . . § 1983 is not an available
remedy. . . . ‘But if . . . the plaintiff’s action, even if successful, will not
demonstrate the invalidity of [his conviction or sentence], the [§ 1983] action
should be allowed to proceed . . . .’” Id. at 1298 (quoting Heck v. Humphrey, 512
U.S. 477, 487 (1994)) (alterations in original). Drawing on this precedent, the
Court observed that Skinner’s “[s]uccess in his suit for DNA testing would not
‘necessarily imply’ the invalidity of his conviction. While test results might
prove exculpatory, that outcome [would be] hardly inevitable; . . . [the] results
might prove inconclusive or they might further incriminate Skinner.” Id.
      Skinner appears to be controlling in Turner’s case. But we need not decide
that. We can and will assume that Turner’s case may properly proceed under
§ 1983; for the reasons stated below, we conclude that his claim lacks a
substantial likelihood of success on the merits.
C. Standard of Review
      A preliminary injunction is an “extraordinary remedy” that should only
issue if the movant establishes:
      (1) a substantial likelihood of success on the merits, (2) a substantial
      threat of irreparable injury if the injunction is not issued, (3) that
      the threatened injury if the injunction is denied outweighs any
      harm that will result if the injunction is granted, and (4) that the
      grant of an injunction will not disserve the public interest.


                                         8
   Case: 12-70003    Document: 00511751300     Page: 9     Date Filed: 02/08/2012



                                  No. 12-70003

Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). While “the standard to
be applied by the district court in deciding whether a plaintiff is entitled to a
preliminary injunction is stringent, the standard of appellate review is simply
whether the issuance of the injunction, in the light of the applicable standard,
constituted an abuse of discretion.” Doran v. Salem Inn, Inc., 422 U.S. 922,
931–32 (1975). Despite this deferential standard, “a decision grounded in
erroneous legal principles is reviewed de novo.”         Byrum, 566 F.3d at 445
(internal quotation marks and citation omitted). As to each element of the
district court’s preliminary injunction analysis, the district court’s findings of
fact “are subject to a clearly-erroneous standard of review,” while conclusions of
law “are subject to broad review and will be reversed if incorrect.” White v.
Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (internal quotation marks and
citation omitted).
D. The Right of Access
      Turner claims that the SOP infringed his right of access to the courts, as
it prevented him from collecting evidence to support either a successive habeas
petition or an application for clemency.         We find that Turner has not
demonstrated a substantial likelihood of success on this claim.
      “Prisoners have a constitutional right of access to the courts that is
‘adequate, effective, and meaningful.’” Terry v. Hubert, 609 F.3d 757, 761 (5th
Cir. 2010) (quoting Bounds v. Smith, 430 U.S. 817, 822 (1977)). However, this
right “guarantees no particular methodology but rather the conferral of a
capability—the capability of bringing contemplated challenges to sentences or
conditions of confinement before the courts.” Lewis v. Casey, 518 U.S. 343, 354
(1996). Thus, in the context of prison library systems for example, the Supreme
Court has explained that an inmate must “demonstrate that the alleged
shortcomings in the library or legal assistance program hindered his efforts to
pursue a legal claim.” Id. at 351. This makes clear that an inmate who brings

                                        9
  Case: 12-70003    Document: 00511751300      Page: 10   Date Filed: 02/08/2012



                                  No. 12-70003

a § 1983 claim based on his right of access to the courts must be able to show
that the infringing act somehow defeated his ability to pursue a legal claim.
That is, “[a] prisoner must show he incurred an actual injury in order to prevail
on a denial of access claim.” Toppins v. Day, No. 02-31016, 2003 WL 21757342,
at *5 (5th Cir. June 26, 2003) (citing Lewis, 518 U.S. at 350–52); see also Bounds,
430 U.S. at 825 (“The inquiry is . . . whether . . . [various] forms of legal
assistance are needed to give prisoners a reasonably adequate opportunity to
present claimed violations of fundamental constitutional rights to the courts.”).
The right of access does not create “an abstract, freestanding right,” but exists
to vindicate other rights. Lewis, 518 U.S. at 351.
      The relevant question, then, is what kind of a legal claim Turner would
pursue with his expert access. The district court’s opinion has little to say on
this, other than noting that access to Schwartz-Watts and further neurological
testing would permit Turner to “attack his death sentence collaterally.” But the
Supreme Court has made explicit that the right of access requires that a
prisoner show an actual injury and an actual legal claim. Lewis, 518 U.S. at
350–52.
      Turner raises no viable legal claims. Turner does not claim that he is
mentally retarded, Atkins v. Virginia, 536 U.S. 304 (2002), that he is insane,
Ford v. Wainwright, 477 U.S. 399 (1986), or that he was under the age of 18 at
the time of his offense, Roper v. Simmons, 543 U.S. 551 (2005). Rather, he
argues that the Constitution bars the execution of “individuals with severe
mental disorders or disabilities, which, at the time of the offense, impaired
[their] ability (a) to appreciate the nature, consequences or wrongfulness of
[their] conduct; (b) to exercise rational judgment in relation to [their] conduct;
or (c) to conform [their] conduct to the requirements of the law.” He cites no




                                        10
  Case: 12-70003       Document: 00511751300          Page: 11     Date Filed: 02/08/2012



                                       No. 12-70003

legal authority for this proposition,6 and, in fact, we have repeatedly rejected
requests to hold that generalized allegations of mental illness bar execution. See
Ripkowski v. Thaler, 438 F. App’x 296,303 (5th Cir. 2011) (“The Supreme Court
has never held that mental illness removes a defendant from the class of persons
who are constitutionally eligible for a death sentence.”); In re Neville, 440 F.3d
220, 221 (5th Cir. 2006). Accordingly, even if Turner received access to his
experts and even if these experts were able to conclusively prove that Turner fell
into the category of individuals he describes, he would still have no
constitutional right not to be executed.
       The district court’s reliance on Ivey v. Harney, 47 F.3d 181 (7th Cir. 1995),
is unpersuasive in this regard. The critical quote from that case—“[p]risoners
have constitutional rights of access to the courts, and as a prison must permit
legal mail to come and go, so it must permit lawyers and physicians access to the
prisoner”—is dicta, devoid of any citation to precedent and embedded in a longer
discussion of hypotheticals that buttress Judge Easterbrook’s final conclusion
that a court may not order a jailor to transport a prisoner outside the facility to
acquire evidence in a suit to which the jailor is not a party. Id. at 186. But even
more problematically, the claim at issue in that case—a § 1983 claim based on
a slip and fall in the prison showers—was not legally impossible to show; it was
merely a factually difficult case to prove. Id. at 182, 186. That is nearly the
antipode of Turner’s situation, where no amount of the evidence Turner seeks
can create a viable claim for collateral relief.




       6
          Indeed, this three-part test is not Mississippi’s definition of insanity. Mississippi
adheres to the M’Naghten standard for determining whether a defendant is insane. “To be
deemed insane under the M’Naghten test, the defendant must be laboring under such defect
of reason from disease of the mind as (1) not to know the nature and quality of the act he was
doing or (2) if he did know it, that he did not know that what he was doing was wrong.” Nolan
v. State, 61 So. 3d 887, 895 (Miss. 2011) (internal quotation marks and citation omitted).

                                              11
  Case: 12-70003         Document: 00511751300       Page: 12     Date Filed: 02/08/2012



                                      No. 12-70003

      Indeed, Turner seeks access to Schwartz-Watts and neurological testing
to establish a basis for successive habeas relief. But such relief would be barred
at both the state and federal levels. Turner exhausted his direct appeals when
the Mississippi Supreme Court, after affirming both his convictions and his
sentence, denied his petition for rehearing on March 31, 1999. The Mississippi
Supreme Court also denied Turner post-conviction relief and denied his motion
for a rehearing on this issue on April 26, 2007.                Under Mississippi law,
successive motions for post-conviction relief are barred unless the prisoner falls
into one of several exceptions. MISS. CODE ANN. § 99-39-23(6). Turner, even
equipped with his desired evidence, would fall into none of these exceptions. He
has not filed a motion indicating that he has become mentally ill subsequent to
his death sentence, MISS. CODE ANN. § 99-19-57(2)(a), nor is it clear he is even
“mentally ill” under the prevailing statutory definition.7                 Turner cannot
“demonstrate either that there has been an intervening decision of the Supreme
Court of either the State of Mississippi or the United States which would have
actually adversely affected the outcome of his conviction or sentence.” MISS.
CODE ANN. § 99-39-23(6). Finally, even if the evidence Turner seeks was “not
reasonably discoverable at the time of trial,” he has not alleged and could not
show that this evidence “is of such nature that it would be practically conclusive
that, if it had been introduced at trial, it would have caused a different result in
the conviction or sentence.” Id. (emphasis added). Indeed, Turner’s mental


      7
          The definition is:
      For the purposes of this subsection, a person shall be deemed to be a person
      with mental illness if the court finds that the offender does not have sufficient
      intelligence to understand the nature of the proceedings against him, what he
      was tried for, the purpose of his punishment, the impending fate that awaits
      him, and a sufficient understanding to know any fact that might exist that
      would make his punishment unjust or unlawful and the intelligence requisite
      to convey that information to his attorneys or the court.
MISS. CODE ANN. § 99-19-57(2)(b).

                                             12
  Case: 12-70003        Document: 00511751300     Page: 13    Date Filed: 02/08/2012



                                      No. 12-70003

illness and whether it mitigates his death sentence has been thoroughly litigated
in both the federal and state court systems. See Turner v. State, 953 So. 2d 1063,
1073–74 (Miss. 2007); Turner v. Epps, No. 4:07CV77-WAP, 2010 WL 653880, at
*10–18 (N.D. Miss. Feb. 19, 2010); Turner v. Epps, No. 4:07CV77-WAP, 2010 WL
1529244, at *2–4 (N.D. Miss. Apr. 15, 2010); Turner v. Epps, 412 F. App’x 696,
704–06 (5th Cir. 2011). This extensive legal history means that Turner cannot
show that any further interviews or testing would be have been “practically
conclusive” in affecting his sentence. Thus, Turner cannot demonstrate that his
evidence would permit him to file a successive state motion for post-conviction
relief.
          Turner is also barred from seeking federal habeas relief. Turner was
previously denied a certificate of appealability by our court, Turner, 412 F. App’x
at 706, meaning that any future habeas petitions he might bring would be
successive. AEDPA makes clear that a claim presented in a successive habeas
corpus application that was not presented in a prior application shall be
dismissed unless:
          (A) the applicant shows that the claim relies on a new rule of
          constitutional law, made retroactive to cases on collateral review by
          the Supreme Court, that was previously unavailable; or
          (B)(I) the factual predicate for the claim could not have been
          discovered previously through the exercise of due diligence; and
          (ii) the facts underlying the claim, if proven and viewed in light of
          the evidence as a whole, would be sufficient to establish by clear and
          convincing evidence that, but for constitutional error, no reasonable
          factfinder would have found the applicant guilty of the underlying
          offense.
28 U.S.C. § 2244(b)(2). The burden would be on Turner to demonstrate that he
falls into one of these two categories. See Mathis v. Thaler, 616 F.3d 461, 467
(5th Cir. 2010). He can make neither showing. He points to no new Supreme



                                           13
  Case: 12-70003    Document: 00511751300      Page: 14   Date Filed: 02/08/2012



                                  No. 12-70003

Court law that supports his claim that severe mental defects suffice to make a
prisoner ineligible for a death sentence.
      Moreover, § 2244(b)(2) only permits a successive habeas petition where the
petitioner produces new evidence casting doubt on whether he is “guilty of the
underlying offense.” We have concluded that this provision does not extend to
evidence casting doubt on the validity of a prisoner’s sentence. See In re Webster,
605 F.3d 256 (5th Cir. 2010), cert. denied, Webster v. United States, 131 S. Ct.
794 (2010). In Webster, a prisoner asked “for another chance to argue that he is
mentally regarded and therefore ineligible for the death penalty,” on the basis
of newly discovered documentary evidence that he contended would show that
no reasonable factfinder could conclude that he is not retarded. Id. at 257.
Interpreting 28 U.S.C. § 2255—the federal analog to § 2244—the panel
concluded that “a petitioner cannot bring a successive claim under § 2255(h)(1)
where he does not assert that the newly discovered evidence would negate his
guilt of the offense of which he was convicted, i.e., capital murder.” Id. The
panel also explained that because its interpretation was based on the “plain
language” of § 2255, its decision applied with equal force to § 2244(b)(2)(B)(ii).
Id. at 257–58 & n.2. Webster makes clear that Turner’s acquisition of mitigating
evidence would not avail him in seeking federal habeas relief; any claim he
might have is therefore foreclosed by the plain language of § 2244.
      Thus, even if Turner had full and unfettered access to the evidence he
desires, it cannot provide him with the relief he ultimately seeks—an
opportunity to void his death sentence in either state or federal court. “Success”
on his right of access claim would, therefore, be meaningless and Turner
therefore cannot demonstrate a substantial likelihood of success on the claims
that underlies the TRO.
E. Clemency



                                        14
  Case: 12-70003    Document: 00511751300       Page: 15   Date Filed: 02/08/2012



                                  No. 12-70003

      A second issue is whether Turner’s right of access permits him to seek
expert assistance in “laying a foundation for a request for clemency.” Turner
claims that his lack of access to experts threatens his “due process right of access
to the clemency system of the State of Mississippi.” It is clear that some
minimal due process safeguards do apply to clemency procedures. See Ohio
Adult Parole Auth. v. Woodard, 523 U.S. 272, 288–89 (1998) (O’Connor, J.,
concurring) (plurality opinion). But these requirements really are minimal, as
Justice O’Connor explained: “Judicial intervention might, for example, be
warranted in the face of a scheme whereby a state official flipped a coin to
determine whether to grant clemency, or in a case where the State arbitrarily
denied a prisoner any access to its clemency process.” Id. at 289 (emphasis
added). Turner has not made any argument that the SOP or the Mississippi
clemency procedure falls below this threshold. He “d[oes] not provide evidence
that he would be denied access to the [clemency] process or evidence that the
decision will be made arbitrarily.” Roach v. Quarterman, 220 F. App’x 270, 275
(5th Cir. 2007); see also Faulder v. Tex. Bd. of Pardons & Paroles, 178 F.3d 343,
344–45 (5th Cir. 1999). As Turner’s lack of access to experts does not bar him
from seeking clemency, he has not properly stated a due process violation.
      Moreover, both Turner and the district court misread the Mississippi
Supreme Court’s statements regarding clemency. The state supreme court
explained, “[a]s Turner’s requests relate to any eventual petition for clemency
from the Governor, the Court finds that the power to grant reprieves and
pardons is vested exclusively in the Governor [by the state constitution] and that
any request for testing as it relates to a clemency request should be dismissed
without prejudice. Turner may pursue relief from the Executive Branch.” This
does not create the “Catch 22” that Turner envisions where first the Governor
must decide whether a pre-clemency evaluation should proceed, but applicants
must seek a court order from the state courts, in order to access experts for the

                                        15
  Case: 12-70003    Document: 00511751300       Page: 16   Date Filed: 02/08/2012



                                  No. 12-70003

evaluation, which then redirect the applicant back to the Executive Branch.
Rather, the Mississippi Supreme Court made clear, consistent with Fifth Circuit
precedent, that “pardon and commutation decisions are not traditionally the
business of courts and . . . are subject to the ultimate discretion of the executive
power.” Faulder, 178 F.3d at 344. This decision, however, does not foreclose to
Turner the possibility of applying for clemency, even if it does potentially result
in a less effective and compelling clemency petition. However, neither the
district court nor Turner have indicated that there is a due process right to a
more effective or compelling clemency application. And without such a right,
there is no requirement that the State grant Turner access to experts.
F. Remaining Preliminary Injunction Requirements
      The district court said little regarding the remaining three requirements
for a preliminary injunction. See Byrum, 566 F.3d at 445. Although the second
factor clearly favors Turner, the district court did not give appropriate weight
to the third and fourth factors, and specifically the State’s interests in carrying
out the execution as scheduled and the public’s interest in the matter. A stay of
execution is an equitable remedy, and such a remedy “must be sensitive to the
State’s strong interest in enforcing its criminal judgments without undue
interference from the federal courts.” Hill v. McDonough, 547 U.S. 573, 584
(2006) (citing Nelson v. Campbell, 541 U.S. 637, 649–50 (2004)). Indeed, the
Supreme Court has recognized that “[i]nmates file [§ 1983] actions intending to
forestall execution,” id. at 581, and has emphasized that “[t]he federal courts can
and should protect States from dilatory or speculative suits . . . .” Id. at 585.
Accordingly, “[a] court considering a stay must . . . 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.’” Id. at 584 (quoting Nelson, 541 U.S. at 650). These considerations



                                        16
  Case: 12-70003   Document: 00511751300     Page: 17   Date Filed: 02/08/2012



                                No. 12-70003

further weigh against staying Turner’s execution and indicate that the district
court abused its discretion in granting the preliminary injunction.
                            III. CONCLUSION
      For the foregoing reasons, the State’s Motion to Vacate the Stay of
Execution is GRANTED.




                                      17
  Case: 12-70003    Document: 00511751300     Page: 18    Date Filed: 02/08/2012



                                  No. 12-70003


HAYNES, Circuit Judge, dissenting:


      I respectfully dissent. Although the request before this court was styled
as a “motion to vacate stay of execution,” it is an appeal from a temporary
restraining order ("TRO") and seeks an order vacating the TRO; thus, I conclude
that we lack jurisdiction over this appeal.
      Generally, neither the grant nor denial of a TRO is immediately
appealable. See In re Lieb, 915 F.2d 180, 183 (5th Cir. 1990). Here, the decision
to grant the TRO was not, as the majority opinion concludes, the equivalent of
granting a preliminary injunction (which is immediately appealable) because the
order confined the period to fourteen days. Compare Fed. R. Civ. P. 65(b) (noting
that a TRO expires, by its terms, within 14 days of issuance), with Fed. R. Civ.
P. 65(a) (providing no time for expiration of a preliminary injunction); cf.
Sampson v. Murray, 415 U.S. 61, 86 (1974) (noting that "a temporary restraining
order continued beyond the time permissible under Rule 65 must be treated as
a preliminary injunction, and must conform to the standards applicable to
preliminary injunctions"). Here, unlike Sampson, the district court's TRO did
not extend beyond the time permissible under Rule 65. Indeed, the State itself
argued to the district court that it was unprepared for a preliminary injunction,
and all agreed that the matter before the court was solely brief, temporary relief
in the form of a TRO. Under these facts, the district court’s ruling was not a
preliminary injunction masquerading as a TRO, and we lack jurisdiction.       See
Harris v. Johnson, 376 F.3d 414, 415 n. 1 (5th Cir. 2004) (a death penalty case
in which the court stated that a “TRO would not normally be appealable” but
found jurisdiction because the district court certified the issue under 28 U.S.C.
§1292(b)); Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999) (a death penalty



                                       18
  Case: 12-70003     Document: 00511751300       Page: 19    Date Filed: 02/08/2012



                                   No. 12-70003

case holding: "It is well settled that this court has no appellate jurisdiction over
the denial of an application for a temporary restraining order.")
      Additionally, contrary to other Fifth Circuit opinions that have reviewed
the denial of a TRO when a party's substantial rights have been irreparably
injured, see United States v. Wood, 295 F.2d 772, 778 (5th Cir. 1961), the State
of Mississippi's substantial rights have not been irreparably injured by the
district court’s order which, at most, has the effect of postponing Turner's
execution for fourteen days. As Turner argued: “A state cannot avoid review of
the constitutionality of its procedures by creating [an] artificial crisis through its
discretionary scheduling orders.” I would dismiss this appeal for want of
appellate jurisdiction and await an appealable order to address the merits of
Turner’s claim for relief.




                                         19
