Murphy v. Collier et al, No. 4:2019cv01106 - Document 9 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER denying 3 MOTION to Stay Execution. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Murphy v. Collier et al Doc. 9 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION March 26, 2019 David J. Bradley, Clerk PATRICK HENRY MURPHY, Plaintiff, CIV IL ACTION NO . H-19-1106 TDCJ EXECUTIVE DIRECTOR BRYAN COLLIER, et a1 ., Defendants . MEMORANDUM OPIN ION AND ORDER plaintiff, Patrick Henry Murphy, executed Thursday, March 28, 2019, after pursuant conviction District sentence Pending Disposition Department 5 1983, Docket Entry also submitted a Motion 1983. Stay (Docket Entry Murphy challenges Texas Criminal Justice (AATDCJ'') procedures death sentence . action Execution Plaintiff's Complain Filed Pursuant which individuals may accompany an inmate during bringing 283rd entered instant complaint pursuant (Complaint Filed Pursuant Murphy o'clock P .m ., Tuesday, March 26, Dallas County, Texas . 2019, Murphy filed 1983. scheduled Because Murphy court will deny specify execution unreasonably delayed motion a stay execution . Dockets.Justia.com 1 . Background On December l3, 2000, seven inmates serving long sentences for violent crimes, including Murphy, escaped from a Texas state prison Kenedy, Texasx Seven .'' This group has come be known as 'lTexas The group eventually killed a police officer during a robbery in Irving , Texas . The men fled to Colorado where they were apprehended . Murphy was taken back to Texas. In 2003 he was tried for capital murder and sentenced death . Murphy has challenged his conviction and sentence in b0th state and federal court . Murphy has committed him self to the teachings of Buddha almost a decade ago .2 Rev . Hui-Yong Shih , also known as Gerald Sharrock, has been Murphy's TDcl-approved spiritual advisor for six years . The State set an execution date December of 2018. On February 21, 2019, Murphy nmade known to Counsel his desire to have his spiritual advisor chamber when he executed Christian chaplain who present March 28 instead ordinarily present chamber during executions.'' the execution the TDCJ the execution (Docket Entry No. 1, On The brief factual summary of Murphy's crime and legal proceedings is taken from the Fifth Circuit's opinion on federal habeas review . See Murphv v . Davis, 737 F. App'x 693 (5th Cir. 2018). 2 The court takes the factual summary relating to the instant comp laint from the pleadings in this case and the pleadings filed with Murphy's Writ of Prohib ition in the Texas Court of Criminal Appeals. In re Patrick Henrv Murphv , Jr ., WR-63,549-02, at 3 (Tex . Crim . App . March 26, 2019). February 28, 2019, counsel sent an email General Counsel, stating advisor Sharon Howell, TDCJ the presence necessary to ufocus (Docket Entry No. Murphy 's spiritual the buddha at the time of death Exhibit 1) Counsel's email also requested that TDCJ not disturb his body for seven days following execution or, in the alternative, seven minutesx On March 5, 2019, Ms . Howell responded by email and informed counsel that presence inmate's choice chaplain (Docket Entry No. entirely an Exhibit 2) Ms. Howell stated that the prison would also allow Murphy's body rest for seven m inutes after the execution . provided following response However, Ms . Howell Murphy's request presence of his spiritual advisor : We do not permit a nOn-TDCJ employee be present in the execution chamber during the execution, which precludes Mr . Murphy's spiritual advisor from being present . Mr . Murphy should place his spiritual advisor on his witness list , and that way the spiritual advisor can observe through the window in the witness room . If Mr . Murphy would like to visit with his spiritual advisor prior to the execution, we can provide a time beginning at 3 pm and ending no later than 4 pm on the day of the execution , as we have done for other inmates . (Docket Entry No. 1-2, Exhibit 2) Ms . Howell based her email TDCJ execution procedure that 3 Additionally , counsel's email asked that, if the TDCJ chaplain who is normally attendant is present at his execution , he not touch him during the process . was adopted in July of 2012.4 relevant part, the TDCJ execution protocol reads, nthe Huntsville Unit Chap lain designated approved TDCJ Chaplain shall accompany the offender while Execution Chamber ./'b the While the protocol appears to be mandatory, in practice TDCJ permits an offender forgo presence of TDCJ employee chaplain should he so choosex On March 2019, counsel sent M s. Howell an email stating : am assuming from your email TDCJ, so far as you are aware, does buddhist priests on have m istaken , and there staff; however, am such a buddhist on the TDCJ staff, then believe murphy would content (Docket Entry Exhibit have him The record does the chamber .'' contain response to this email . On March Prohibition 2019, Murphy filed a Petition the Texas Court Crim inal Appeals . a Writ of The petition raised two issues : TDCJ'S policy demonstrates a clear preference for one religion (Christianity) over a1l others. Murphy has a clear right to relief pursuant to the First Am endment's Texas adopted its lethal-injection protocol in 2008. Texas revised its execution protocol in 2012 , but without any change to its core procedures . See Trottie v . Livinqston, 766 F .3d 450, 453 (5th Cir. 2014) See Respondents' Opposition to Relator's Motion for Leave to File Petition for Writ o f Prohibition and Motion for Stay of Execution, In re Patrick Henrv Murrhv, Jr ., WR-63,549-02, at 3 (Tex. Crim. App.), Exhibit A. See i; . 11, n.2. Establishment Clause . TDCJ'S policy unjustifiably interferes with Murphy's ability to practice his religion and therefore violates his First Amendment right to the Free Exercise of religion . In re Patrick Henrv Murphv, Jr ., WR-63,549-02, 3 (Tex. Crim . App.) 2019, the On March petition a writ of Criminal Appeals denied the prohibition . The Court stated : ugplrohibition relief is has that clear right Criminal Appeals available relator shows the relief sought and other adequate legal remedy .'' In re Patrick Henry Murphv, Jr, WR-63,549- (Tex. Crim . App . March 2019). The Court Appeals found that nMurphy has requirement prohibition Criminal m eets either shown that this case .'' Murphy filed this action under complaint raises three arguments : 1983 . Murphy's TDCJ'S execution protocol violates the First Amendment's Establishment Clause because not neutral between religions; the protocol violates is First Amendment right to Free Exercise of religion by interfering his ability practice his religion ; and the policy violates the Religious 42 U .S.C . 2000cc, qk seq. OARLUIPA''). II . Standard for Stlvinq Execution in 1983 Litiqation Murphy asks execution court stay his execution. equitable remedy, and an inmate ''IA) stay of a stay of execution as a m atter of course .'' Hill v . McDonough, l26 2096, execution, (2006). deciding whether court must consider : stay whether the stay applicant has made strong showing that he merits; whether the applicant absent a stay; issue whether issuance likely succeed on the irreparably injured substantially stay injure the other party interested in the proceeding; and the public interest lies . See Nken v . Holder, where S . Ct . 1749, (2009). However, a motion for a stay depends on the operation equity . See Hill, In the balance of equity , udilatory behavior'' may weigh heavily against a plaintiff. Ramirez (5th Cir. 2017).7 v . Mccraw , 715 F . App'x 111 . Timinc of Murphv 's Comolaint Murphy filed this lawsuit only two days before his scheduled execution . This case can proceed the court issues a stay . Equitable relief should be denied when Murphy bringing action so as dilatory delay execution of sentence . uEquity must take into consideration the State's strong interest When inmates file motions requesting a prelim inary injunction, a TRO, and a stay of execution, courts generally consider a11 the requests under either the preliminary-injunction or stay-of-execution standard . See Wood v . Collier, 836 F.3d 534, 538 (5th Cir. 2016); Trottie, 766 F.3d at 451: Sells v . Livingston, 561 F. App'x 342, 343 (5th Cir. 2014). The requirements for a preliminary injunction are substantially similar to those for a stay of execution . See Sells, 561 F. App'x at 344 . The court would deny a preliminary injunction for the same reasons it will not stay Murphy's execution . proceeding its judgment A court may consider the last-minute nature of an application to stay execution in deciding whether grant equitable relief .'' Gomez v , United States 1653, District Court for Northern District of Calif w 1653 (1992). Murphy points to recent litigation concerning the execution of Domineque Hakim Marcelle Ray presence during A labama . execution Ray requested the a spiritual advisor authorized according to prison policy . Ray brought was under 5 1983 raising sim ilar complaints under the Estab lishment Clause and RLUIPA . litigation history and his previous opportunities federal district challenge prison policy, found that he did not merit a stay : short, Ray has been dilatory filing this action . He has shown no just or equitable reason for his delay, which cuts against a stay of execution . His complaint came utoo late to avoid the inevitable need for a stay of execution ,'' so a stay is not granted . W illiam s v . A llen, - 496 F.3d 1210, 1213 (11th Cir. 2007) (affirming denial of stay when inmate waited to sue until the State requested an execution date); see also, e.a ., Gravson, 491 F.3d at 1321, 1325 (affirming denial of stay when inmate sued before execution date was set); Henvard v . Secretarv, 543 F.3d 644, 647-49 (11th Cir. 2008) (affirming denial of stay when inmate waited months to sue). Rav v. Dunn, 2019 WL 418105, (M.D. Ala. 2019). The Eleventh Circuit reversed, finding that ''ltqhe district court makes much too that Ray's claim s have been brought scheduled date Ray's execution .'' Rav v . Commissioner, Alabama Department of Corrections, 915 F.3d 689, 702- 03 (11th 2019). The Eleventh Circuit emphasized that Alabama statutory make clear Ray 's requested spiritual advisor could not be present in the execution . A lso, the relevant prison policies were confidential not available review earlier. W ithout some evidence that Ray knew or should have known prison policy, Eleventh Circuit found that uRay has provided an altogether plausible explanation for why the claims were not filed in district court sooner and the state has neither argued nor produced any evidence that the petitioner was aware that claims were available at an earlier date .'' 703. Rav, 915 F.3d The Eleventh Circuit, therefore, stayed his execution . short order, however, Supreme Court vacated the stay of execution . The Supreme Court order reads as follows : On November 6, 2018, the State scheduled Domineque Ray's execution date for February 7, 2019 . Because Ray waited until January 28, 2019 to seek relief, we grant the State's application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit . See Gom ez v . United States Dist . Court for Northern Dist . of Cal ., 503 U .S . 653, 654, l12 S .Ct. 1652, 118 L .Ed.2d 293 (1992) (per curiam) (A'A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.'') (Mem) (2019). Dunn v . Ra v , Murphy presents two arguments to differentiate his case from the Suprem e Court's action in Rav . request TDCJ month, rather First, Murphy sent an email than only days, before execution . Second, Murphy alleges that he nbegan seeking relief the state courts even before TDCJ expressly denied 8 request .'' (Docket Entry No. Ray case, however, focus only on the number days remaining before execution when the inmate filed suit . district court stayed his execution because he knew , The should have known, that he needed to file suit much earlier . Murphy knew, should have known, of the policy long before he sent TDCJ general counsel an email . Murphy follower been death row since 2003 . has been Buddha for several years and has associated with the same time . Since 2012, at least, TDCJ policy has only allowed for the presence of TDCJ employees during the execution process. identical Entry No . Alabama's Murphy alleges that ''TDCJ'S policy relevant aspects (Docket fails, however, to acknowledge a crucial difference . TDCJ execution policy is not confidential . Murphy had TDCJ policy would not allow rea son to the presence spiritual advisor .g 8 In the state court litigation involving Murphy's petition for a writ of prohibition, the parties debated whether counsel's March 7, 2019, email amounted to a request for TDCJ to find an approved Buddhist priest . That is of no m oment. Murphy has not shown that TDCJ could diverge from its protocol at that point or earlier. And , at any rate , Murphy should have raised his concerns much earlier. Counsel, an experienced death penalty litigator, has represented Murphy for a decade throughout legal challenges to his conviction and sentence . The concurrence to the denial of his petition for a writ of prohibition recounted counsel's history of bringing last-minute litigation . In re Patrick Henrv Murphy , Jr ., 9 November of 2018 the United States Supreme Court denied the petition action . later . certiorari review from The state district set his execution date a month Murphy did nothing the presence of Murphy's federal habeas communicate TDCJ his desire for spiritual advisor until 29 days remained before his execution . Murphy gave TDCJ little time decide whether vary its policy . And Murphy gave TDCJ legal challenge that would follow . not deviate from policy, Murphy waited over two weeks to state court . litigation Once informed that TDCJ would He filed action only two days before his execution . UG j-ven State's significant interest criminal judgments against the grant of such time as requiring entry of (2004). there strong equitable presumption stay where claim could have been brought allow consideration merits without stay .'' Nelson v . Campbell, 541 response 637, systemic abuses by prisoners bringing dilatory claims, the federal courts particular enforcing have been forced and Ethe Fifth Circuitl develop extensive jurisprudence resisting those requests for long-available claims presented , for the first time, 225, the eve of execution .'' Ruiz v . Davis, 850 (5th Cir. 2017)7 see also Bible v . Davis, App'x WR-63,549-02 (Tex. Crim . App . March 26, 2019) (Richardson, concurring). 10 (5th Cir. 2018) (finding that a lawsuit brought nineteen days before execution was dilatory); Sepulvado v . Jindal, 420-21 (5th 2013) (vacating stay where inmate challenged a procedure he had known about for two years); Brown v . Livinqston , F.3d 390, (5th Cir. 2006) (denying equitable relief where n laqlthough gthe prisonerrsq direct appeal has been final seven years, six days before his scheduled execution/'); Reese v. Livingston, (5th Cir. 2006) (denying stay of execution because plaintiff cannot wait until a stay must be granted to enable him to develop facts and take case satisfactory explanation trial not when there no the delay'/). Applying that governing the court finds that Murphy either knew should have known about his potential claim s and had ample opportunity to bring suit , waited until the eve execution . equity requires the denial of his motion IV . The court finds that stay . Conclusion The Court does not address the substance of Murphy's complaint because has not brought this action with sufficient time rem aining to develop claims . (Docket Entry No. Murphy's motion for a stay is DENIED . execution SIGNED at Houston , Texas, on this 26th day of ch , 2019. F SIM LAKE UNITED STATES DISTRICT JUDGE
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