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Neville v. Johnson

Robert James NEVILLE, Plaintiff-Appellant, v. Gary JOHNSON, Etc., Et Al., Defendants-Appellees

Neville v. Johnson, 440 F.3d 221 (5th Cir. 2006)
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Court
Court of Appeals for the Fifth Circuit · U.S. Courts of Appeals
Decided
February 8, 2006
Docket
No. 06-70005
Judges
Garza, Demoss, Clement
Citations
440 F.3d 2212006 WL 2912922006 U.S. App. LEXIS 3096

Opinion — Per Curiam

PER CURIAM:

Robert James Neville appeals the dismissal of his action seeking injunctive relief and a stay of execution under 42 U.S.C. § 1983 . He alleged that a particular lethal injection protocol as well as related procedures violate the Eighth and Fourteenth Amendments of the Constitution. The district court dismissed Ne-ville’s action because he was dilatory in filing his action for equitable relief. We AFFIRM.

A challenge to a method of execution may be filed any time after the plaintiffs conviction has become final on direct review.

White v. Johnson, 429 F.3d *223 572, 574 (2005). Neville’s death penalty conviction was affirmed by the Texas Court of Criminal Appeals in 1999. Ne-ville then waited until two days before his scheduled execution to file a method of execution challenge with the district court. He, therefore, “‘delayed unnecessarily in bringing his claim.’ ”

Harris v. Johnson, 376 F.3d 414, 416 (5th Cir.2004) (quoting Nelson v. Campbell, 541 U.S. 637, 650 , 124 S.Ct. 2117 , 158 L.Ed.2d 924 (2004)).

A cognizable § 1983 claim “ ‘does not warrant the entry of a stay as a matter of right.’ ”

See White, 429 F.3d at 573 (quoting Nelson, 541 U.S. at 649 , 124 S.Ct. 2117 ). Rather, this “court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”

Id.

In addition, the court may consider the last-minute nature of all types of equitable requests, including permanent injunctions.

See id.

at 574. This court “ ‘must take into consideration the State’s strong interest in proceeding with its judgment and ... attempts at manipulation.’ ”

Id.

(quoting Nelson, 541 U.S. at 649 , 124 S.Ct. 2117 ) (alteration in original).

Neville offers no excuse for delaying his claim until the last minute, and, therefore, we find it improper to grant the equitable relief he seeks. Although the Supreme Court has granted a writ of certiorari in Hill v. Crosby, — U.S. -, 126 S.Ct. 1189 , 163 L.Ed.2d 1144 (2006), “our precedent ... remains binding until the Supreme Court provides contrary guidance.”

In re: Elizalde, No. 06-70002 (5th Cir. Jan. 31, 2006) (citations omitted). Therefore, we AFFIRM the district court’s dismissal of Neville’s claims.

How later courts describe this case

Explanatory parentheticals written by citing courts — 8 in all; the most informative distinct ones are shown.

Cited by 30 cases

View all citing references →
2006: 72007: 102008: 42009: 42010: 22015: 22018: 120062026peak 2007 · 10

Relies on it most ⓘ

  1. Smith v. Johnson440 F.3d 262 (5th Cir. 2006)
  2. Hughes v. Johnson170 F. App'x 878 (5th Cir. 2006)
  3. Richard Wade Cooey, II v. Ted Strickland, Governor Terry J. Collins, Director E.C. Voorhies, Warden479 F.3d 412 (6th Cir. 2007)
  4. Kincy v. Livingston173 F. App'x 341 (5th Cir. 2006)
  5. Walker v. Epps550 F.3d 407 (5th Cir. 2008)
  6. Bishop v. Epps287 F. App'x 371 (5th Cir. 2008) · Dissent

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Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Nelson v. Campbell, 541 U.S. 637 (2004) 831
Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) 53
Hill v. Crosby, 546 U.S. 1158 (2006) 18

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