     Case: 14-70014   Document: 00512587418     Page: 1   Date Filed: 04/07/2014




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


                                 No. 14-70014
                                                                         FILED
                                                                      April 7, 2014
                                                                    Lyle W. Cayce
TOMMY LYNN SELLS; RAMIRO HERNANDEZ,                                      Clerk

                                         Plaintiffs - Appellees
v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice, WILLIAM STEPHENS, Director, Texas Department of Criminal
Justice, Correctional Institutions Division, JAMES JONES, Senior Warden,
Huntsville Unit, and UNKNOWN EXECUTIONERS,

                                         Defendants - Appellants




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


Before SOUTHWICK, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:
      The district court on April 2, 2014, enjoined the State of Texas from
executing Tommy Lynn Sells or Ramiro Hernandez.           The State appealed.
Another panel of this court reversed the injunction as to Sells.                As to
Hernandez, we REVERSE the district court’s order and GRANT the motion to
vacate the stay of execution.
                                BACKGROUND
      In 2000, Hernandez was convicted and sentenced to death in Texas state
court for murdering Glen Lich. Hernandez was employed by Glen Lich and
had been living in a cabin on the Lich property as part of his compensation.
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The evidence at trial established that on October 14, 1997, Hernandez knocked
on the door of the Lich’s house and Glen went outside with him. Lera Lich,
Glen’s wife, saw them walk away from the house.             A short time later,
Hernandez returned to the door of the main house and entered. Lera noticed
he had blood on his hands and face and a knife in his hand. Hernandez held
the knife to Lera’s neck and sexually assaulted her twice. Hernandez then
made a phone call, tied Lera to the bed with towels he had torn up, and covered
her head with a blanket. Hernandez asked for the keys to Lera’s vehicle, went
outside and started the vehicle, but turned the ignition off a few minutes later.
He went back into the house, made more calls, and sexually assaulted Lera
again. Hernandez continually threatened to harm Lera’s mother, who was in
another room asleep. Hernandez then fell asleep on the bed with Lera. She
escaped as he slept, ran to a neighbor’s house, and called law enforcement.
      Two deputies arrived at the Lich home to find Hernandez still sleeping
in Lera’s bed. They arrested him and found Glen’s body on the ground behind
a shed on the property.      The medical examiner testified Glen had been
bludgeoned with a crow bar and his death caused by traumatic injury to the
head and brain. DNA analysis showed the blood on Hernandez’s hands and
pants was consistent with that of Glen Lich.
      Hernandez was indicted, convicted after a jury trial of capital murder,
and sentenced to death. He appealed his conviction and sentence and sought
habeas relief in both state and federal courts. See Hernandez v. Stephens, 537
F. App’x 531, 533-34 (5th Cir. 2013) (detailing the procedural history of
Hernandez’s case starting with his conviction).
      On April 1, 2014, Hernandez and another death-row inmate, Tommy
Lynn Sells, filed a Section 1983 complaint in the United States District Court
for the Southern District of Texas. They sought a TRO to stay their imminent
executions. They also sought to have the State ordered to disclose information
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                                 No. 14-70014
about the lethal drugs that would be used to execute them. On April 2, the
district court granted a temporary injunction, required the disclosure under an
acceptable protective order and a stay of execution until after disclosure.
      The State immediately appealed the order as to both death-row inmates.
As to Sells, another panel of this court vacated the stay of execution and
reversed the preliminary injunction. Sells v. Livingston, No. 14-70014, USDC
No. 4:14-CV-832 (5th Cir. Apr. 2, 2014, revised April 4, 2014). The Supreme
Court denied a stay and Sells was executed on April 3. See Sells v. Stephens,
No. 13-8284 (Apr. 3, 2014) (order denying cert.).


                                DISCUSSION
      This panel is not bound by the Sells panel’s decision because it was not
a published opinion. We are, though, convinced by its reasoning. The claims
of both inmates were brought in a common complaint under Section 1983, and
ruled upon by the district court in a single order. No distinctions between the
two inmates relevant to the issues before us have been argued by anyone.
      We review a preliminary injunction for abuse of discretion. Janvey v.
Alguire, 647 F.3d 585, 591-92 (5th Cir. 2011). The determinative issue before
both panels is whether this preliminary injunction and stay of execution
granted to Hernandez and Sells was based on a showing of “a substantial
likelihood of success on the merits” and that the balance of harms tip in their
favor. See Tamayo v. Stephens, No. 14-70003, 2014 WL 241744, at *3 (5th Cir.
Jan. 22, 2014) (citing Adams v. Thaler, 679 F.3d 312, 318 (5th Cir. 2012) (stay
of execution), and Janvey, 647 F.3d at 595 (preliminary injunction)). The
elements a plaintiff must establish to secure a preliminary injunction are a
likelihood of success on the merits, a substantial threat of irreparable injury,
that the threatened injury outweighs any harm that will result if the injunction


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is granted, and that the injunction will not disserve the public interest.
Janvey, 647 F.3d at 595.
      The information both inmates seek, as the Sells panel described it, is
      the source of the pentobarbital, documentation reflecting the
      purchase of the drug, the timing and means of storage of the drug,
      the date of manufacture/mixing of the drug, any lot numbers which
      may exist, the raw ingredients used to make the drug and the
      source of same, the testing that was conducted on the drug and the
      results of that testing, and the laboratory and names of its
      personnel which conducted the testing.

Sells, No. 4:14-CV-832, at *4. Further, the Sells panel explained what the
State has already disclosed:
      The State has . . . provided [that] the execution will be carried out
      consistent with the Texas Department of Criminal Justice’s
      Execution Procedure established on July 9, 2012, and
      implemented in the seven most recent executions. Under this
      procedure, the TDCJ will administer a five-gram dose of
      pentobarbital obtained from a licensed compounding pharmacy
      within the United States. The batch from which the dose will be
      taken has been tested by an independent laboratory. That test
      revealed that it has a potency of 108%, and is free of contaminants.

      Hernandez is scheduled to be executed in accordance with execution
procedures promulgated by the TDCJ on July 9, 2012, and known by counsel.
The State of Texas has used pentobarbital in thirty executions, and other
states have used the drug. The single-drug protocol is valid. Thorson v. Epps,
701 F.3d 444, 447 n.3 (5th Cir. 2012).
      The district court interpreted a recent decision of this court to require
that the inmates be provided the requested information. See Whitaker v.
Livingston, 732 F.3d 465 (5th Cir. 2013). In that decision we held that there
must be some proof, not just hypothetical possibilities, that the execution
process was constitutionally defective:


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                                  No. 14-70014
      They must offer some proof that the state’s own process—that its
      choice of pharmacy, that its lab results, that the training of its
      executioners, and so forth, are suspect. Plaintiffs have pointed to
      only hypothetical possibilities that the process was defective.

Id. at 468. The district court here decided that the State must provide the
information needed to determine whether the showing under Whitaker could
be made. The district court held that only upon receiving further details about
the drugs could specific objections to the execution process be articulated.
      The Sells panel reversed. It determined that Whitaker did not create
disclosure requirements but had held “no more than petitioner had failed to
show a likelihood of success that his 14th and 8th Amendment rights would be
violated.” Sells, No. 14-70014, at *5. We agree. Our interpretation of Whitaker
is guided by the holdings of a slightly earlier decision of this court.        See
Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013), cert. denied, — S. Ct. —,
2014 WL 284957 (Apr. 7, 2014). There, an inmate argued the State must
disclose its execution protocol in order for the court to determine whether the
protocols satisfied his due process rights. Id. at 418. The court disagreed
because the assertion of a necessity for disclosure “does not substitute for the
identification of a cognizable liberty interest.” Id. at 419. No appellate decision
had yet held that obtaining information about execution protocols was a liberty
interest, which meant that failing to disclose could not be a due-process
violation. Id. at 419-20.
      A death-row inmate is entitled to an injunction if he points to “some
hypothetical situation, based on science and fact, showing a likelihood of severe
pain.” Whitaker, 732 F.3d at 468. Hernandez speculates that because the
State has a new source of compounded pentobarbital, there are unknowns
regarding possible contamination and improper compounding.                 “[M]ere



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                                 No. 14-70014
speculation is not enough.” Id. at 469. Hernandez has failed to demonstrate a
likelihood of success on the merits.
      We GRANT the motion to vacate the stay and REVERSE the preliminary
injunction.




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