729 F.3d 413 (5th Cir. 2013), 13-70007, Sepulvado v. Jindal

Docket Nº:13-70007
Citation:729 F.3d 413
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:CHRISTOPHER SEPULVADO, Intervenor Plaintiff--Appellee, v. BOBBY JINDAL, Governor of Louisiana; JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections; BURL CAIN, Warden, Louisiana State Penitentiary; ANGIE NORWOOD, Warden, Death Row; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; JOHN DOES, Unknown Executioners, Defendants
Attorney:For CHRISTOPHER SEPULVADO, Intervenor Plaintiff - Appellee: Gary Patrick Clements, Counsel, Kathleen Ann Kelly, Esq., Capital Post-Conviction Project of Louisiana, New Orleans, LA; Edmond Wade Shows, Shows, Cali, Berthelot & Walsh, L.L.P., Baton Rouge, LA. For BOBBY JINDAL, Governor of Louisiana,...
Judge Panel:Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.
Case Date:August 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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729 F.3d 413 (5th Cir. 2013)

CHRISTOPHER SEPULVADO, Intervenor Plaintiff--Appellee,

v.

BOBBY JINDAL, Governor of Louisiana; JAMES M. LEBLANC, Secretary, Department of Public Safety and Corrections; BURL CAIN, Warden, Louisiana State Penitentiary; ANGIE NORWOOD, Warden, Death Row; LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS; JOHN DOES, Unknown Executioners, Defendants--Appellants

No. 13-70007

United States Court of Appeals, Fifth Circuit

August 30, 2013

Appeal from the United States District Court for the Middle District of Louisiana.

Page 414

For CHRISTOPHER SEPULVADO, Intervenor Plaintiff - Appellee: Gary Patrick Clements, Counsel, Kathleen Ann Kelly, Esq., Capital Post-Conviction Project of Louisiana, New Orleans, LA; Edmond Wade Shows, Shows, Cali, Berthelot & Walsh, L.L.P., Baton Rouge, LA.

For BOBBY JINDAL, Governor of Louisiana, JAMES M. LEBLANC, SECRETARY, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, ANGIE NORWOOD, Warden, Death Row, LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, JOHN DOES, Unknown Executioners, Defendants - Appellants: Edmond Wade Shows, Jacqueline Bordelon Wilson, Shows, Cali, Berthelot & Walsh, L.L.P., Baton Rouge, LA.

Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.

OPINION

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JERRY E. SMITH, Circuit Judge:

Defendants Bobby Jindal, Governor of Louisiana; the Louisiana Department of Public Safety and Corrections; and various state officials (the " state" ) appeal a preliminary injunction and stay of execution granted to death-row inmate Christopher Sepulvado.1 Finding reversible error, we reverse the injunction and the stay.

I.

In 1993, Sepulvado was convicted and sentenced to death for the first-degree murder of his six-year-old stepson. His

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conviction and sentence were affirmed. State v. Sepulvado, 672 So.2d 158 (La.), cert. denied, 519 U.S. 934, 117 S.Ct. 310, 136 L.Ed.2d 227 (1996). He sought post-conviction relief in state and federal court. The federal district court denied habeas corpus relief, Sepulvado v. Cain, No. 00-596 (W.D. La. Aug. 9, 2002), and denied Sepulvado's application for a certificate of appealability. In a detailed opinion setting out the facts and proceedings, we denied Sepulvado's request for a certificate of appealability on six issues, Sepulvado v. Cain, 58 Fed.Appx. 595, No. 02-30909, 2003 WL 261769 (5th Cir.) (per curiam), cert. denied, 540 U.S. 842, 124 S.Ct. 110, 157 L.Ed.2d 76 (2003), then dismissed his successive habeas petition for want of jurisdiction, In re Sepulvado, 707 F.3d 550, 552 (5th Cir. 2013), petition for cert. filed (May 8, 2013) (No. 12-10251).

On December 12, 2012, a state court issued a death warrant and set Sepulvado's execution for February 13, 2013. State law provides that " [e]very sentence of death . . . shall be by lethal injection; that is, by the intravenous injection of a substance or substances in a lethal quantity into the body of a person convicted until such person is dead." La. R.S. 15:569(B) (2012). " Prior to 2010, the State of Louisiana used a three-drug procedure to execute inmates via lethal injection." Hoffman v. Jindal [Hoffman I], No. 12-796-JJB, 2013 WL 489809, at *1 (M.D. La. Feb. 7, 2013). Since 2010, the first drug in the procedure--sodium thiopental--has been unavailable. In December 2010, the state repealed the section of its administrative code enumerating the specific procedures to be followed for the lethal injection of those individuals sentenced to death.2

On December 20, 2012, death-row inmate Jessie Hoffman3 sued under 42 U.S.C. § 1983 alleging, among other claims, that the state's refusal to disclose the details of its execution protocol violates the Due Process Clause of the Fourteenth Amendment. " Counsel for the State has indicated that . . . a single dose of pentobarbital will now be used to execute inmates. However, the State has refused to officially disclose what the protocol is until formal discovery procedures have been complied with." Hoffman I, 2013 WL 489809, at *1.

On February 6, 2013, the district court granted Sepulvado's January 23 motion to intervene in Hoffman's suit. The next day--less than a week before Sepulvado's scheduled execution--the court issued a preliminary injunction and stay, reasoning as follows:

" Fundamental fairness, if not due process, requires that the execution protocol that will regulate an inmate's death be forwarded to him in prompt and timely fashion." Oken v. Sizer, 321 F.Supp.2d 658, 664 (D. Md. 2004). Fundamental fairness requires that the inmate be given meaningful and adequate notice of how his rights have been affected by the changes in the execution protocol. Sepulvado is entitled to review the full protocol itself.

II.

We begin by noting what is not at issue. Sepulvado does not challenge the legitimacy or legality of his death sentence, which has been upheld by every

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court that has considered it over the past two decades. " [C]apital punishment is constitutional. . . . It necessarily follows that there must be a means of carrying it out." 4 In Baze, the Court explicitly approved lethal injection as a legal means of execution.5

Baze addressed Kentucky's three-drug protocol, but " a one drug protocol [is] also acceptable under the flexible Baze standard. . . ." Thorson v. Epps [Thorson II], 701 F.3d 444, 447 n.3 (5th Cir. 2012), petition for cert. filed (Feb. 12, 2013) (No. 12-1010). Other federal courts of appeals agree that pentobarbital-only protocols comport with the Eighth Amendment's prohibition against cruel and unusual punishment.6 Indeed, the losing plaintiffs in Baze urged Kentucky to do what Louisiana has done: Adopt " a one-drug protocol that dispenses with the use of pancuronium and potassium chloride . . . ." 7

The district court did not reach Sepulvado's Eighth Amendment claim.8 Our review is thus limited to determining whether the court erred by issuing an injunction and stay on due-process grounds.

III.

Regarding the standard for an injunction,

A preliminary injunction is an extraordinary remedy that should only issue if the movant establishes:

(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.

Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009) (quoting Speaks v. Kruse, 445 F.3d 396, 399-400 (5th Cir. 2006)).

We review a preliminary injunction for abuse of discretion. See Janvey v. Alguire, 647 F.3d 585, 591-92 (5th Cir. 2011). " Despite this deferential standard, 'a decision grounded in erroneous legal principles is reviewed de novo.'" Id. at 592 (quoting Byrum, 566 F.3d at 445). " As to each element of the district court's preliminary-injunction analysis, the district court's findings of fact are subject to a clearly-erroneous standard of review, while conclusions of law are subject to broad review and will be reversed if incorrect." Id. (internal quotation marks omitted).

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IV.

" To assess the likelihood of success on the merits, we look to standards provided by the substantive law." Id. at 596 (internal quotation marks omitted). The district court determined that Sepulvado was likely to prevail on his claim that the Due Process Clause of the Fourteenth Amendment entitles him to prompt and detailed disclosure of Louisiana's most recent execution protocol. Hoffman I, 2013 WL 489809, at *2. The only authority the district court cited to support its conclusion was Oken v. Sizer, 321 F.Supp.2d at 664, in which the Supreme Court, 542 U.S. 916, 124 S.Ct. 2868, 159 L.Ed.2d 290 (2004), swiftly--and summarily--vacated the stay.9

At least one of our sister circuits has rejected a similar claim based on Oken . Less than twenty-four hours before the scheduled execution of inmate Beaty, Arizona informed him that it intended to substitute pentobarbital for sodium thiopental in its lethal injection protocol. Beaty v. Brewer [ Beaty I], 791 F.Supp.2d 678, 682-83 (D. Ariz. 2011). Beaty alleged that the " failure to timely notify him of the drug substitution violates his right to due process under the Fourteenth Amendment because he lacks sufficient time to review the protocol change, as well as his medical records, to determine whether there are any constitutional concerns with the new drug." Id. at 681. The district court disagreed:

In his motion for injunctive relief, Plaintiff relies on Oken in support of his assertion that he has a right to reasonable notice of protocol changes so that he can ensure such changes comport with constitutional requirements. However, this Court cannot rely on one district court's unsupported assertion that capital plaintiffs have such a due process right, especially in view of the fact that the United States Supreme Court vacated the stay of execution granted by the district court in Oken . . . .

Moreover, other than the district court order in Oken, Plaintiff cites no authority to support his allegation that the Due Process Clause provides a right to review protocol changes and attempt to challenge them. Other courts to address this issue have found no such authority. See Clemons v. Crawford, 585 F.3d 1119, 1129 n.9 (8th Cir. 2009) (noting lack of authority indicating due process right to probe into backgrounds of execution personnel); Powell v. Thomas [Powell I], . . . 784 F.Supp.2d 1270, 1282-83 . . . (M.D. Ala. . . . 2011) (finding no authority for proposition that condemned inmate has due process right to receive notice and an opportunity to be heard regarding substitution of pentobarbital). Given the lack of authority to support Plaintiff's procedural due process violation, the Court finds that he has failed to...

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