                                                                 United States Court of Appeals
                                                                          Fifth Circuit
                                                                        F I L E D
                      UNITED STATES COURT OF APPEALS
                                                                          July 19, 2006
                             FOR THE FIFTH CIRCUIT
                                                                     Charles R. Fulbruge III
                                                                             Clerk


                                   06-70032



     MAURICEO MASHAWN BROWN,

                                               Plaintiff-Appellant,

                                        v.

     BRAD LIVINGSTON, Executive Director,
     Texas Department of Criminal Justice;
     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
                      Southern District of Texas



Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

     The Plaintiff-Appellant, Mauriceo Brown, is scheduled to be

executed by lethal injection on July 19, 2006.              Brown appeals the

district    court’s    sua     sponte   dismissal     of   his   suit     seeking

injunctive relief pursuant to 42 U.S.C. § 1983.               He alleges that

the combination of drugs that Texas uses in administering the

lethal    injection    could    paralyze     him   while   leaving    him    fully
conscious of excruciating pain during the execution in violation of

the Eighth Amendment.        Brown seeks to enjoin the use of this

particular lethal injection protocol.

         Relying on Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004),

the district court held that Brown was dilatory in filing the

complaint and, thus, dismissed the case with prejudice.                  The

district court properly applied our precedent.

     This Court has held that “[a] challenge to a method of

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

has become final on direct review.”        Neville v. Johnson, 440 F.3d

221, 222-23 (5th Cir.) (citing White v. Johnson, 429 F.3d 572, 574

(5th Cir.), cert. denied, 126 S.Ct. 601 (2005)),          cert. denied, 126

S.Ct. 1192 (2006).     Further, we have made clear that waiting to

file such a challenge just days before a scheduled execution

constitutes    unnecessary   delay.       Harris,   376   F.3d   at   417-19.

Although Brown’s direct appeal has been final for seven years,1 he

did not file the instant complaint until six days before his

scheduled execution.    Brown “cannot excuse his delaying until the

eleventh hour on the ground that he was unaware of the state’s

intention to execute him by injecting the three chemicals he now

challenges.”   Harris, 376 F.3d at 417.      Brown has been on death row

for more than nine years but decided to wait to challenge a



     1
        Brown v. State, slip op. 72,852 (Tex. Crim. App. Feb. 17,
1999)(unpublished).

                                      2
procedure for lethal injection that has been used by the State

during his entire stay on death row.                See White, 429 F.3d at 574

(reaching the same conclusion when petitioner filed after six

years); see also Harris, 376 F.3d at 417.

     Although Brown recognizes our precedent, he argues that it is

in conflict with the Texas Court of Criminal Appeals’s holding that

lethal injection challenges are not ripe until an execution is

imminent.    Whatever significance the Court of Criminal Appeals’s

holding may have with regard to state court proceedings, it is

clear from our precedent that he could have proceeded with a

section 1983 civil complaint in federal court at any time after his

direct   appeal   became   final   in       1999.      The   Court   of   Criminal

Appeals’s holding with regard to ripeness is irrelevant to Brown’s

ability to proceed in federal district court on his section 1983

claim. Moreover, regardless of whether there is a conflict between

the precedent of this Court and the Court of Criminal Appeals, this

panel is bound by our precedent, which requires us to find the

instant suit dilatory. Brown offers no other reason to justify his

delay in filing suit.

     Accordingly, we AFFIRM the district court’s dismissal of

Brown’s complaint and DENY the request in his brief for this Court

to issue injunctive relief, which we treat as a request for stay of

execution.   The Clerk is directed to issue the mandate instanter.




                                        3
DENNIS, Circuit Judge, dissenting:



       Because I believe equity demands a more in-depth analysis of

the situation in this case in light of recent Supreme Court

jurisprudence, I respectfully dissent from the decision to deny a

stay of execution. I continue to be concerned about the tendency in

some   of   our   own   opinions   towards   mechanically       denying   stays

according only to the length of delay between execution setting and

the date of the petition, as noted in my dissent in Harris v.

Johnson, 376 F.3d 414, 419 (5th Cir. 2004). In Hill v. McDonough,

-- U.S. --, 126 S.Ct. 2096 (2006), the Supreme Court did not bar a

plaintiff’s 1983 action even though it was not filed until four

days prior to his execution. Instead, the Court reversed the

Eleventh    Circuit’s    judgment   that     the   suit   was   a   functional

equivalent to a successive habeas petition. Id. at 2103.             The Court

also reiterated that "a stay of execution is an equitable remedy”

and that there is "a strong equitable presumption" against granting

a stay where the claim could have been raised "'at such a time as

to allow consideration of the merits without requiring entry of a

stay.'” Hill, 126 S.Ct. at 2104, citing Nelson v. Campbell, 541

U.S. 637, 650 (2004). The Court made clear that “federal courts can

and should protect States from dilatory or speculative suits,” and

potentially also from “repetitive or piecemeal litigation” which

might raise similar concerns, but it did not address the method by



                                     -4-
which we may do so. Id. It did, however, make clear that a stay

under    these   circumstances   must    satisfy   all   the   traditional

requirements, such as proof of the likelihood of success on the

merits. Id. at 2104. It also did not give carte blanche approval to

any of the lower court decisions it referred to, but merely noted

that dilatoriness was a valid and significant problem that courts

are within their powers to address. Id.       I do not read the Court's

opinion as encouraging us to overlook all other considerations that

are called for in equity, which, after all, should be a recourse to

principles of justice and fairness to correct or supplement the law

as applied to particular circumstances. Consequently, equity in

cases of this nature requires courts to consider the particular

circumstances of each case and to examine them for whether or not

the challenge has been brought dilatorily or for improper purposes

(i.e., to delay the execution), and, if not, whether it should be

allowed to proceed.

     In this case, the district court and the majority have not

analyzed the case on the basis of the factors indicated in Hill,

including the likelihood of success on the merits.2 Accordingly, it

     2
      In deciding a stay of execution, we must consider four
factors: (1) whether the movant has made a showing of likelihood of
success on the merits, (2) whether the movant has made a showing of
irreparable injury if the stay is not granted, (3) whether the
granting of the stay would substantially harm the other parties,
and (4) whether the granting of the stay would serve the public
interest. Buxton v. Collins, 925 F.2d 816, 819 (5th Cir. 1991).
Hill cited as an example of these factors Barefoot v. Estelle, a
case approving of “the Fifth Circuit’s recent practice of requiring


                                   -5-
is difficult to determine quickly whether the result they reached

is congruent with the Supreme Court’s decisions in Nelson and Hill.

Further, it is now clear that a reevaluation and rethinking of our

prior decisions in the light of Nelson and Hill is appropriate.

Therefore, I respectfully dissent and would stay the execution in

this case pending briefing and oral argument for that purpose.




a showing of some prospect of success on the merits before issuing
a stay of execution,” 463 U.S. 880, 889 (1983), as well as Mazurek
v. Armstrong, 520 U.S. 968, 972 (1997), a case noting that the
movant must carry the burden of persuasion.


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