United States Court of Appeals
Fifth Circuit
IN THE UNITED STATES COURT OF APPEALS FILED
FOR THE FIFTH CIRCUIT June 27, 2006
_____________________
Charles R. Fulbruge III
No. 06-70029 Clerk
_____________________
ANGEL MATURINO RESENDIZ
Plaintiff - Appellant
v.
BRAD LIVINGSTON, Executive Director, Texas Department of
Criminal Justice; DOUGLAS DRETKE, Director, Correctional
Institutions Division Texas Department of Criminal Justice;
CHARLES O'REILLY, Senior Warden, Huntsville Unit;
UNKNOWN EXECUTIONERS
Defendants - Appellees
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Appeal from the United States District Court
for the Southern District of Texas
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:
This is an appeal from an order of the district court
denying Appellant’s motion for an injunction, restraining order,
or stay of execution. Appellant seeks relief in the form of a
stay of an execution, which is scheduled for later today, June
27, 2006. We AFFIRM the district court’s denial of relief
essentially for the reasons expressed by the district court in
its memorandum and order signed June 26, 2006. Resendiz v.
Livingston, No. H-06-CV-818. See White v. Johnson, 429 F.3d 572
(5th Cir. 2005); Harris v. Johnson, 376 F.3d 414 (5th Cir.
2004). The request for stay is DENIED.
AFFIRMED; DENIED.
DENNIS, Circuit Judge, concurring in the judgement:
Under the circumstances, I concur and agree with
the district court's disposition of the case. I
continue to be concerned, however, about the tendency
in some of our own opinions towards mechanically
denying stays according only to the length of delay
between execution setting and the date of the petition,
as noted in my dissent in Harris v. Johnson, 376 F.3d
414, 419 (5th Cir. 2004). In Hill v. McDonough, -- U.S.
--, 126 S.Ct. 2096 (2006), the Supreme Court reiterated
that "a stay of execution is an equitable remedy” and
that there is "a strong equitable presumption" against
granting a stay where the claim could have been raised
"'at such a time as to allow consideration of the
merits without requiring entry of a stay.'" (Hill 126
S.Ct. 2096, citing, in the third quotation, Nelson v.
Campbell, 541 U.S. 637, 650 (2004)). I do not read the
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Court's opinion, however, as encouraging us to overlook
all other considerations that are called for in equity,
which, after all, should be a recourse to principles of
justice and fairness to correct or supplement the law
as applied to particular circumstances. Consequently,
equity in cases of this nature requires courts to
consider the particular circumstances of each case and
to examine them for whether or not the challenge has
been brought dilatorily or for improper purposes (i.e.,
to delay the execution), and, if not, whether it should
be allowed to proceed. I am satisfied that the district
court has properly done so in this case and has reached
a sound decision.
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