Filed: Mar. 27, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D March 27, 2006 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 06-70012 _ KEVIN CHRISTOPHER KINCY, Petitioner-Appellant, versus BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTION INSTITUTIONS DIVISION; CHARLES O’REILLY, Senior Warden, Huntsville Unit Huntsville, Texas; and UNKNOWN EXECUTIONERS, Defendants-A
Summary: United States Court of Appeals Fifth Circuit F I L E D March 27, 2006 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk _ No. 06-70012 _ KEVIN CHRISTOPHER KINCY, Petitioner-Appellant, versus BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTION INSTITUTIONS DIVISION; CHARLES O’REILLY, Senior Warden, Huntsville Unit Huntsville, Texas; and UNKNOWN EXECUTIONERS, Defendants-Ap..
More
United States Court of Appeals
Fifth Circuit
F I L E D
March 27, 2006
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_______________________
No. 06-70012
_______________________
KEVIN CHRISTOPHER KINCY,
Petitioner-Appellant,
versus
BRAD LIVINGSTON, Executive Director, Texas Department of
Criminal Justice; DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTION INSTITUTIONS DIVISION; CHARLES
O’REILLY, Senior Warden, Huntsville Unit Huntsville, Texas;
and UNKNOWN EXECUTIONERS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:06-CV-00689
Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit
Judges.
PER CURIAM:*
Plaintiff-Appellant Kevin Kincy (“Kincy”) is scheduled to
be executed on March 29, 2006. Kincy appeals the district court’s
dismissal of his suit for injunctive relief pursuant to 42 U.S.C.
§ 1983. He alleges that the method of execution used by Texas,
*
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opinion should not be published and is not precedent except under the limited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.
lethal injection, may cause excruciating pain in violation of the
Eighth and Fourteenth Amendments. The district court, citing
Fifth Circuit precedent, dismissed Kincy’s complaint with
prejudice, concluding that Kincy unnecessarily delayed in
challenging the method of execution. The district court did not
determine whether Kincy’s Eighth or Fourteenth Amendment claims are
cognizable under § 1983 because circuit precedent holds that Kincy
is not entitled to equitable relief due to his dilatory filing.
Before this court, Kincy requests a stay of execution. Because we
agree with the analysis of the district court, we AFFIRM its
dismissal of Kincy’s complaint and DENY his request for a stay.
Kincy has been on death row for over ten years. His
sentence and conviction became final on April 21, 1998, nearly
eight years ago. Still, Kincy did not bring the instant challenge
to the method of his execution until twenty-seven days prior to his
scheduled execution.
The district court correctly applied our precedent. This
court has held on numerous occasions that “[a] challenge to a
method of execution may be filed at any time after the plaintiff’s
conviction has become final on direct review.” Neville v. Johnson,
__ F.3d __, 2006 U.S. App. LEXIS 3096 (5th Cir. Feb. 8, 2006)
(citing White v. Johnson,
429 F.3d 572, 574 (5th Cir. 2005)), cert.
2
denied, Neville v. Livingston, 2006 U.S. LEXIS 1008 (Feb. 8, 2006);
Smith v. Johnson, __ F.3d __,
2006 U.S. App. LEXIS 3527 (5th Cir.
Feb. 14, 2006)(quoting Neville). We have also made clear that
waiting to file such a challenge shortly before a scheduled
execution constitutes unnecessary delay. Harris v. Johnson,
376 F.3d 414, 417-19 (5th Cir. 2004), cert. denied, Harris v.
Dretke,
542 U.S. 953 (2004). Kincy had nearly eight years in which
he could have litigated his claim for relief under § 1983; he
therefore “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.
Regardless whether he now states a claim under § 1983,
Kincy is not entitled to the relief he seeks due to his dilatory
filing. He has been on death row for over ten years but waited to
challenge a procedure for lethal injection that has been used by
Appellees during his entire stay on death row. See Smith,
2006 U.S. App. LEXIS 3527 at *3 (reaching the same conclusion when
petitioner filed after nine years);
White, 429 F.3d at 574
(reaching the same conclusion when petitioner filed after six
years); see also
Harris, 376 F.3d at 417. Kincy’s contentions that
imminence of execution is a prerequisite for standing, a
3
requirement for ripeness, and a prerequisite for entitlement to
prospective injunctive relief are contradicted by the holdings of
Neville and White, discussed supra. Further, in Harris, this court
explicitly stated that a challenge should not be brought when the
execution is “an imminent or impending danger.”
Harris, 376 F.3d
at 418; see also
White, 429 F.3d at 574 (A “last-minute challenge
to the method of execution is improper.”). Kincy’s decision to
delay his filing until twenty-seven days before his scheduled
execution constitutes unnecessary delay. See
Harris, 376 F.3d at
416. Harris and Neville control and require us to affirm the
district court’s dismissal of this claim.
The district court properly considered Kincy’s attempts
to distinguish his case from prior cases, such as Smith, Neville,
White, and Harris, and found them unavailing.1 We agree, noting,
as did the district court, that the instant case falls squarely
within the holdings of the aforementioned cases and compels denial
of a stay.
1
The fact that Kincy challenges the state of Texas’s “cut down”
procedure in addition to objecting to the chemicals used in the lethal injection
process does not meaningfully distinguish his case from the above cited cases.
A prisoner delays unreasonably in waiting until the last minute to bring any
method of execution challenge that could have been brought after his conviction
and sentence became final.
4
To the extent that Kincy contends his execution should be
stayed pending the Supreme Court’s decision in Hill v. Crosby,
__ U.S. __, 126 S. Ct. 1189 (2006)(granting certiorari), we decline
to do so. In Neville, we explained that Fifth Circuit precedent
“remains binding until the Supreme Court provides contrary
guidance.” __ F.3d at __,
2006 U.S. App. LEXIS 3096 at *3.
Moreover, the Supreme Court has denied certiorari in recent
challenges, filed after the Hill certiorari grant, to Texas’s
lethal injection protocol. See, e.g., Smith,
2006 U.S. LEXIS 1090
(Feb. 15, 2006).
For the foregoing reasons, we AFFIRM the district court’s
dismissal of Kincy’s complaint and DENY Kincy’s motion for a stay
of execution.
5
