Wilson v. Livingston, et al, No. 06-70018 (5th Cir. 2006)
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United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT May 2, 2006 Charles R. Fulbruge III Clerk No. 06-70018 JACKIE BARRON WILSON, Plaintiff-Appellant, versus BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice; DOUG DRETKE, Director, Correctional Institutions Division Texas Department of Criminal Justice; 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 (06-1451) Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges. Per Curiam: In 1989, Jackie Barron Wilson was convicted of capital murder in the course of a kidnapping and sentenced to death. The Texas Court of Criminal Appeals reversed his conviction and remanded for a new trial. death. In 1994, he was again convicted and sentenced to Wilson was denied relief on his direct appeal and on state and federal habeas applications, the last decision being the 23 February 2004 denial by the Supreme Court of the United States of his petition for writ of certiorari to review the denial of federal habeas relief, Wilson v. Dretke, 540 U.S. 1186 (2004). executed on 4 May 2006. He is to be The execution date was set on 26 January 2006. 2006, Wilson filed a grievance with the Texas On 14 February Department of Criminal Justice, protesting the substances he anticipated the [State] had chosen to intravenously inject . grievance was denied on 6 April 2006. Wilson claims that On 27 April 2006, Wilson filed this action for injunctive relief, pursuant to 42 U.S.C. § 1983 to bar his execution by means of the execution protocol currently employed by the State of Texas . On 28 April 2006 (order entered on 1 May), the district court denied, sua sponte, injunctive relief, for failure to state a claim upon which relief may be granted. Pursuant to Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004), the court held Wilson s filing was dilatory, because Wilson has been sentenced to death for approximately 12 years and failed to file his complaint until more than two years after the Supreme Court denied certiorari for his federal habeas petition. This appeal was filed on 1 May 2006. Wilson s § 1983 action is dilatory. As held in Harris, Accordingly, we deny his request for injunctive relief without reaching the merits of his § 1983 claim. Id. at 417; see also Smith v. Johnson, 440 F.3d 262 (5th Cir.), stay denied, 126 S. Ct. 1294 (2006); White v. Johnson, 429 F.3d 572 (5th Cir.), stay denied, 126 S. Ct. 601 (2005). For the foregoing reasons, we DENY Wilson s requests 2 that this Court grant a preliminary injunction or, in the alternative, a temporary restraining order, prohibiting Appellees from ... injecting him with pancuronium bromide and potassium chloride, individually or in combination, during the course of administering a lethal injection to him ... [or in the alternative] remand to the district court with instructions to grant preliminary or temporary injunctive relief ... [or in the alternative] grant a stay of execution pending consideration of his appeal by this Court or pending the Supreme Court s resolution of Hill v. McDonough, No. 05-8794. In addition, this appeal is DISMISSED. REQUESTED RELIEF DENIED; APPEAL DISMISSED 3
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