United States Court of Appeals
Fifth Circuit
F I L E D
In the June 23, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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No. 04-70020
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DAVID RAY HARRIS,
Plaintiff-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION;
NEILL HODGES,
WARDEN;
UNKNOWN EXECUTIONERS,
Defendants-Appellees,
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 04-CV-1514
_________________________
Before SMITH, DENNIS, AND CLEMENT, which the State intends to carry out a sentence
Circuit Judges. of death. Such claims were thought to chal-
lenge the sentence itself, and as a result, could
PER CURIAM:* be raised only in a § 2254 habeas petition. Cf.
Preiser v. Rodriquez, 411 U.S. 475, 489
David Harris appeals the dismissal of his (1973).
suit, brought under 42 U.S.C. § 1983,
challenging the manner in which the State of Nelson, 124 S. Ct. at 2122, refutes that in-
Texas intends to carry-out his execution by terpretation of Gomez, inasmuch as Nelson
lethal injection on the scheduled date of June states that the Court “ha[s] not yet had
30, 2004. The district court, relying on Mar- occasion to consider whether civil rights suits
tinez v. Tex. Ct. of Crim. Appeals, 292 F.3d seeking to enjoin the use of a particular meth-
417, 421 (5th Cir. 2002), construed the od of executionSSe.g. lethal injection or elec-
complaint as a successive habeas corpus peti- trocutionSSfall within the core of federal ha-
tion brought under 28 U.S.C. § 2254 and beas corpus or, rather, whether they are
dismissed it for failure to seek this court’s au- properly viewed as challenges to the
thorization to file it. Cf. 28 U.S.C. § 2244- conditions of a condemned inmate’s death
(b)(3)(A). Agreeing with Harris that Nelson v. sentence.” Although Nelson leaves unsettled
Campbell, 124 S. Ct. 2117 (2004), is a change “the difficult question of how to categorize
in the law that undermines the basis for the method-of-execution claims generally,” id. at
district court’s decision, we reverse and 2123-24, it recognizes that some such claims
remand for further proceedings. may be brought under § 1983 if they are
sufficiently narrow in scope. See id. at 2123-
The district court’s reliance on Martinez 25 (analyzing the claim by “focusing attention
was well placed at the time it dismissed on whether petitioner’s challenge . . . would
Harris’s complaint. In Martinez, 292 F.3d at necessarily prevent Alabama from carrying out
421, and several cases adhering to it,1 we its execution”).
interpreted Gomez v. United States Dist. Ct.,
503 U.S. 653 (1992) (per curiam), as standing Nelson therefore overrules the categorical
for the proposition that a death row inmate rule that was announced in Martinez, 292 F.3d
may not use § 1983 to challenge the manner in at 421, and relied upon by the district court in
this case. In its place, Nelson institutes a more
probing standard that seeks to determine
*
Pursuant to 5TH CIR. R. 47.5, the court has de- whether the complaint crosses the line between
termined that this opinion should not be published (1) method-of-execution claims that call into
and is not precedent except under the limited cir- question only the manner and means of
cumstances set forth in 5TH CIR. R. 47.5.4. execution (and thus may be brought under
1
Hines v. Johnson, No. 03-21173, 83 Fed.
§ 1983) and (2) claims that call into question
Appx. 592 (5th Cir.) (per curiam), cert. denied sub the validity of the execution itself (and thus
nom. Zimmerman v. Johnson, 124 S. Ct. 1502 sound only in habeas). Id. at 2123-24.
(2004); Bruce v. Johnson, No. 04-70001 (5th Cir.
2004) (per curiam) (unpublished); Panetti v. Dret- The State argues that Nelson is distinguish-
ke, No. 04-70002 (5th Cir. 2004) (per curiam) able, and that even if it is not, the district
(unpublished).
2
court’s dismissal can be upheld on several al- ter is REMANDED for further proceedings.2
ternative grounds. Because the court issued The mandate shall issue forthwith.
its ruling before the state had an opportunity
to file responsive pleadings, all of its
arguments are newly raised on appeal. “We
consider an issue raised for the first time on
appeal only if it presents a purely legal
question and failure to address it would result
in grave injustice.” Kelly v. Foti, 77 F.3d 819,
822 (5th Cir. 1996). No such injustice exists
here, because the state has ample opportunity
to urge its contentions on remand, id., if the
district court acts expeditiously, as we assume
it will.
We therefore reverse and remand for
further proceedings in light of Nelson. We
express no opinion as to whether Harris’s
complaint falls within the permissible scope of
§ 1983 complaints recognized in Nelson, or
whether there is any merit to the state’s
alternative defenses, such as exhaustion.
We do not stay Harris’s execution, and in
his brief in this appeal he specifies that he
“does not . . . seek a stay of his execution.”
As recognized in Nelson, 124 S. Ct. at 2125-
26, “the mere fact that an inmate states a cog-
nizable § 1983 claim does not warrant the en-
try of a stay as a matter of right.” There
remain a number of procedural issues, see id.
at 2126, the resolution of which should not re-
quire the entry of a stay. We do, however, re-
quest the district court to give emergency at-
tention to this matter and enter an appealable 2
order that will enable this court to resolve any The parties have complied with our order for
expedited briefing, under which Harris would be
pending matters in advance of the date set for
entitled to file a reply brief by June 25. In light of
execution. the need for quick remand, and further because
Harris is receiving the relief he requests on appeal
The judgment is REVERSED, and this mat- (reversal and remand), the termination of briefing
at this time is warranted. See also 5TH CIR. R.
31.4.4 (stating that “[t]he court assumes that the
parties have had ample opportunity to present their
arguments in their initial briefs”).
3