[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 24, 2006
No. 06-10621
THOMAS K. KAHN
CLERK
CLARENCE E. HILL,
Plaintiff-Appellant,
versus
JAMES V. CROSBY, JR.,
CHARLIE CRIST,
Defendants-Appellees.
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Appeal from the United States District Court for the
Northern District of Florida
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(January 24, 2006)
Before EDMONDSON, Chief Judge, TJOFLAT and PRYOR, Circuit Judges.
B Y T H E C O U R T:
Appellant Clarence Edward Hill has been convicted of capital murder in
Florida and sentenced to death. His execution is scheduled for today, January 24,
2006, at 6:00 p.m. On January 20, 2006, he applied to this court for leave to file a
second and successive habeas petition in an effort to forestall his execution. We
denied his application in an order entered earlier today. At the same time, we
denied his application under 28 U.S.C. §§ 1651 and 2251 for a stay of his
execution.
Also on January 20, 2006, appellant brought this suit for declaratory and
injunctive relief under 42 U.S.C. § 1983, in the United States District Court for the
Northern District of Florida. He contends that death by lethal injection causes
pain and unnecessary suffering and thus constitutes cruel and unusual punishment
under the Eighth and Fourteenth Amendments. He seeks a permanent injunction
barring his execution. On January 21, 2006, the district court issued an order
dismissing appellant’s complaint on the ground that the complaint “is the
‘functional equivalent’ of a successive habeas petition,” and that the court lacked
jurisdiction to entertain it in the absence of an order from the court of appeals
granting appellant leave to file a successive petition.
The district court relied on as authority for its ruling our decision in
Robinson v. Crosby, 358 F.3d 1281 (11th Cir. 2004), which, as the district court
properly observed, dealt with “the very issue” appellant’s complaint presents here.
Appellant now appeals the district court’s order, and he asks that we stay his
execution pending our disposition of his appeal.
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It is clear to us that the district court lacked jurisdiction to consider
appellant’s claim because it is the functional equivalent of a successive habeas
petition and he failed to obtain leave of this court to file it. See 28 U.S.C. §
2244(b)(3)(A). And as the panel observed in Robinson, “such an application to
file a successive petition would be due to be denied in any event. See In re
Provanzano, 215 F.3d 1233, 1235-36 (11th Cir. 2000), cert. denied, 530 U.S.
1256, 120 S.Ct. 2710, 147 L.Ed.2d 979 (2000) (concluding that a claim that lethal
injection constitutes cruel and unusual punishment does not meet the requirements
of 28 U.S.C. § 2244(b)(2)(A) or (B)).”
For this reason, we DENY appellant’s application for a stay of his execution
pending appeal.
SO ORDERED.
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