Cite as: 555 U. S. ____ (2008)           1

                    STEVENS, J., concurring

SUPREME COURT OF THE UNITED STATES
                         _________________

                          No. 08A471
                         _________________


    ELDON VAIL, SECRETARY OF WASHINGTON 

     DEPARTMENT OF CORRECTIONS, ET AL. v.

            DAROLD R. J. STENSON

     ON APPLICATION TO VACATE STAY OF EXECUTION
                      [December 3, 2008]

  The application to vacate the stay of execution of sen
tence of death entered by the United States District Court
for the Eastern District of Washington on November 25,
2008, presented to Justice Kennedy and by him referred to
the Court, is granted.

   JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
concurring.
   On November 21, 2008, the Thurston County Superior
Court denied respondent’s motion for a preliminary in
junction that would have prevented the State from execut
ing respondent until the court considered respondent’s
constitutional challenge to the State’s lethal injection
protocol. Rebuffed by the state court, respondent immedi
ately filed an identical constitutional challenge under Rev.
Stat. §1979, 

. §1983, in the United States Dis
trict Court for the Eastern District of Washington and
moved for a preliminary injunction. The District Court
concluded that a stay of execution was warranted to allow
the state court sufficient time to fully and fairly consider
the merits of respondent’s constitutional claim. In my
view, the entry of the stay was improper. The state court
decided under state law that the execution could proceed
while respondent’s constitutional claim was pending.
Accordingly, the District Court should not have entered a
2                    VAIL v. STENSON

                   STEVENS, J., concurring

stay to give the state court additional time it decided was
not warranted. In light of that procedural error, and on
that basis alone, I vote to grant the application to vacate
the stay of execution entered by the District Court.