                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                           F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                              August 15, 2007

                                                                        Charles R. Fulbruge III
                                                                                Clerk
                                 No. 07-70030
                             USDC No. 3:07-CV-421


KENNETH PARR,

                                               Petitioner,

versus

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                               Respondent.

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

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Kenneth    Parr   is     a   Texas   death    row    inmate    scheduled      for

execution on August 15, 2007 after 6 p.m. (CDT).                   Parr raises two

claims in his application for habeas relief before this court: one,

that neither he nor his counsel were present for the setting of his

execution   date      in     violation    of     the     Fourteenth     and     Sixth

Amendments;1    and        two,   that    Texas’s        method    of    execution,

     *
      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this opinion should not be published and is not precedent except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.
     1
      Parr also alleges that the process by which his execution
date was set violate state law. State law claims are not
cognizable in federal habeas proceedings and we do not consider
them. 28 U.S.C. § 2254(a); Young v. Dretke, 356 F.3d 616, 628
(5th Cir. 2004).
                             No. 07-70030
                                  -2-

specifically its “three-drug cocktail,” will violate his Eighth

Amendment rights.

     Parr’s application is procedurally barred because the TCCA

dismissed his claims based on an adequate and independent state

ground, namely abuse of the writ, Tex. C.C.P. art. 11.071 § 5.

Emery v. Johnson, 139 F.3d 191, 196 (5th Cir. 1998).       Parr has not

argued that any of the exceptions to this doctrine, namely cause

and prejudice or a fundamental miscarriage of justice, Harris v.

Reed, 489 U.S. 255, 265 (1989), apply, and we do not find any

indication that Parr could demonstrate either of these exceptions.

     Even if we were to consider the merits of Parr’s claims, we

are confident that he is not entitled to relief.            Parr is not

entitled to relief on his first claim because setting the execution

date is not a part of the sentencing proceeding under clearly

established federal law as determined by the Supreme Court, which

has never considered this claim.       See Belyeu v. Johnson, 82 F.3d

613, 615 (5th Cir. 1996) (“The setting of the date for execution is

not a critical part of the sentencing proceedings, but is rather a

ministerial act implementing the judgment earlier entered.”); see

also 28 U.S.C. § 2254(d).

     Parr’s second claim, that Texas’s lethal injection scheme

violates   the   Eighth   Amendment,   is   dismissed   because   of   his

unnecessary delay in bringing the claim.         White v. Johnson, 429

F.3d 572, 574 (5th Cir. 2005); Harris v. Johnson, 376 F.3d 414, 418
                              No. 07-70030
                                   -3-

(5th Cir. 2004) (“By waiting as long as he did, [Petitioner] leaves

little doubt that the real purpose behind his claim is to seek a

delay of his execution, not merely to effect an alteration of the

manner in which it is carried out.”).                 Parr has not shown a

justifiable reason why he waited until eight days before his

execution to challenge the manner of execution.                See Reese v.

Livingston,   453   F.3d   289,   291   (5th   Cir.    2006)   (holding   that

dilatory filing will not be excused unless there is a “satisfactory

explanation for the delay”). Additionally, this is a second habeas

claim because the operative facts were available to Parr at the

time his conviction became final, Neville v. Johnson, 440 F.3d 221,

222 (5th Cir. 2006), and we do not grant permission to file a

second or successive habeas claim.

     In light of the above determinations, there are no grounds for

a stay of execution in this case.        Therefore, Parr’s motion for a

stay of execution is denied.       His application for a COA regarding

his writ of habeas corpus is denied as to both arguments he raised

in the district court, and his motion for habeas corpus is denied.
