     Case: 19-70007   Document: 00514891372     Page: 1   Date Filed: 03/27/2019




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


                                 No. 19-70007
                                                                       FILED
                                                                 March 27, 2019
                                                                  Lyle W. Cayce
PATRICK HENRY MURPHY,                                                  Clerk

                  Plaintiff-Appellant,

v.

BRYAN COLLIER, Executive Director, Texas Department of Criminal Justice;
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional
Institutions Division; BILLY LEWIS, Warden,

                  Defendants-Appellees.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before SMITH, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Patrick Murphy is scheduled for execution on March 28, 2019, for the
murder of police officer Aubrey Hawkins on December 24, 2000. His execution
date was set on November 29, 2018. Murphy complains that the state of Texas
permits only religious clerics who are employees of the Texas Department of
Criminal Justice (TDCJ) to be physically present in the execution chamber at
the time of an execution. He further complains that the TDCJ at present only
employs chaplains who are Christian or Muslim, while acknowledging that the
TDCJ contracts to bring chaplains and spiritual advisors of other religions into
the prison facilities. Under the state’s procedures, chaplains and spiritual
advisors who are not employees of the TDCJ may meet with an inmate on the
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                                 No. 19-70007
execution date prior to entering the execution chamber and they may watch
the execution from a viewing room, but they may not physically enter the
execution chamber itself.
      On March 20—eight days before his scheduled execution—Murphy
petitioned the Texas Court of Criminal Appeals for a writ of prohibition
seeking to prohibit his execution until the state allowed his preferred spiritual
advisor—a Buddhist priest—to be physically present in the execution chamber
at the time of execution. That petition was denied on March 25. On March
26—two days before his scheduled execution—Murphy filed a 42 U.S.C. § 1983
complaint and a motion for stay of execution with the federal district court,
again seeking to prohibit his execution until the state allows his preferred
spiritual advisor to be physically present in the execution chamber.         His
Section 1983 complaint alleged violations of the Establishment Clause, the
Free Exercise Clause, and the Religious Land Use and Institutionalized
Persons Act (RLUIPA). In a well-reasoned eleven-page Memorandum Opinion
and Order, the district court denied the motion for a stay of execution as
untimely. Murphy appeals the district court’s determination that he is not
entitled to a stay of execution, filing his appeal with this court on March 27—
one day before his scheduled execution.
      “[W]e review a district court’s decision to deny a stay of execution for
abuse of discretion.” Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013). “[A]
stay of execution is an equitable remedy. It is not available as a matter of
right, and equity 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). To be eligible for a stay of
execution, Murphy must demonstrate: (1) a likelihood of success on the merits;
(2) a substantial threat of irreparable injury; (3) that the threatened injury
outweighs any harm that will result if the stay is granted; and (4) that the stay
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                                  No. 19-70007
will not disserve the public interest. See Adams v. Thaler, 679 F.3d 312, 318
(5th Cir. 2012) (citing Nken v. Holder, 556 U.S. 418, 434 (2009)). However, “[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, 547 U.S. at 584 (internal citation and quotation marks omitted). See also
Gomez v. U.S. Dist. Court for N. Dist. of Cal., 503 U.S. 653, 654 (1992) (“A court
may consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.”). The Supreme Court recently
emphasized, yet again, the importance of timeliness when moving for a stay of
execution. See Dunn v. Ray, 139 S. Ct. 661, 661 (2019) (vacating a stay of
execution granted by a circuit court when the applicant waited until ten days
before the scheduled execution to file his claim).
      As the district court rightfully recognized, the proper time for raising
such claims has long since passed.       Murphy’s execution date was set on
November 29, 2018. By his counsel’s admission, he waited until February 28
to first request that the state allow Murphy’s preferred spiritual advisor to not
just meet with him prior to entering the chamber and watch from the viewing
room, but actually enter the execution chamber with him. He then waited until
March 20—eight days before the scheduled execution—to raise his First
Amendment and RLUIPA claims with the Texas Court of Criminal Appeals.
Those claims were not raised before the federal district court until March 26—
two days before the scheduled execution—and an appeal was not brought
before this court until March 27—the day before the scheduled execution.
      Murphy asserts that his allegations underlying this case are almost
identical to those recently addressed by the dissenting Justices in Ray. See
139 S. Ct. at 661–62 (Kagan, J., dissenting).        However, in making that
assertion, without having timely sought factual development of his allegations
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                                 No. 19-70007
and the state’s execution chamber procedures, Murphy fails to acknowledge at
least one significant difference.     Unlike the situation described by the
dissenting Justices in Ray, the policy of only permitting TDCJ-employed
chaplains into the execution chamber at issue in this case has been in place
since at least 2012 and is not ambiguous about presence in the execution
chamber as distinct from in the adjacent viewing area. The district court
determined that the policy is not confidential and that Murphy’s counsel is an
experienced death penalty litigator who knew, or should have known, about
the policy well before the weeks immediately preceding the scheduled
execution.    However, even if we were to accept Murphy’s current
representation that he and his counsel did not have access to the text of that
policy, his counsel was definitively notified of that provision by an email from
the TDCJ’s general counsel on March 5. Nonetheless, Murphy waited until
March 20 to raise any related claims before the Texas Court of Criminal
Appeals, and until March 26 to raise any such claims before the federal courts.
Such delays are unacceptable under the circumstances.
      This court also takes note, as did the district court, of the multiple
warnings that Murphy’s counsel has received in the past for filing last-minute
motions. See In re Dow, No. WR-57,060-03, 2010 WL 2332420 (Tex. Crim. App.
Jun. 9, 2010) (finding Dow failed to show cause for his untimely filing and
warning that further untimely filings could result in sanctions). See also In re
Dow, 481 S.W.3d 215 (Tex. 2015) (noting that the Texas Court of Criminal
Appeals held Dow in contempt for his untimely filings and barred him from
practicing before that court for one year).
      “In response to systemic abuses by prisoners bringing dilatory claims,
the federal courts—and this circuit in particular—have been forced to develop
extensive jurisprudence resisting those requests for long-available claims
presented, for the first time, on the eve of execution.” Ruiz v. Davis, 850 F.3d
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                                 No. 19-70007
225, 229 (5th Cir. 2017). See also 5th Cir. R. 8.10; Bible v. Davis, 739 F. App’x
766, 770 (5th Cir. 2018) (unpublished); Preyor v. Davis, 704 F. App’x 331, 344
(5th Cir. 2017) (unpublished); In re Edwards, 865 F.3d 197, 209–10 (5th Cir.
2017); In re Paredes, 587 F. App’x 805, 826 (5th Cir. 2014) (unpublished);
Sepulvado v. Jindal, 729 F.3d 413, 420–21 (5th Cir. 2013); Brown v.
Livingston, 457 F.3d 390, 391 (5th Cir. 2006); Reese v. Livingston, 453 F.3d
289, 290–91 (5th Cir. 2006); White v. Johnson, 429 F.3d 572, 573–74 (5th Cir.
2005). As such, the district court did not abuse its discretion and Murphy’s
motion for a stay of execution is DENIED.




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