UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 99-20542
_______________________
JOSEPH STANLEY FAULDER,
Plaintiff-Appellant,
versus
GARY L. JOHNSON, Texas Department of
Criminal Justice, Institutional Division;
WAYNE SCOTT, Director, Texas Department of
Criminal Justice; TEXAS BOARD OF PARDONS AND
PAROLES; VICTOR RODRIGUEZ, Chairman, Texas
Board of Pardons and Paroles; TIM MORGAN,
Warden, Ellis Unit, Texas Department of Criminal
Justice; JAMES WILLETT, Warden, Huntsville Unit,
Texas Department of Criminal Justice;
RICHARD THALER; GLENN ELLIOTT; and THOMAS WELCH,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
June 16, 1999
Before JONES, WIENER, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:
Appellant Joseph Stanley Faulder is scheduled to be
executed on June 17, 1999. Less than one week ago, this court
rejected Faulder’s challenge to the procedures used by the Texas
Board of Pardons and Paroles. This week, Faulder is pursuing a
lawsuit under 28 U.S.C. § 1350 and § 1983, the purpose of which is
to obtain a stay of his execution because of his alleged tort claim
against Texas officials for violating international human rights
treaties and the Vienna Convention on Consular Relations.
The district court held an expedited hearing on the
motion to stay execution and for temporary restraining order, after
which the court entered a thoughtful order denying relief on
June 14, 1999. On June 15, Faulder filed a notice of appeal “from
the order denying a temporary restraining order in the above-
numbered cause.” For the following reasons, we again reject
Faulder’s last-minute assertions.
First, it is well settled that this court has no
appellate jurisdiction over the denial of an application for a
temporary restraining order. In re: Lieb, 915 F.2d 180 (5th Cir.
1990). The appeal ought to be dismissed for that reason alone.
Second, although we are aware of no applicable exception
to the foregoing rule, in the event that there is some exception,
we reiterate this court’s recent holding that federal courts lack
jurisdiction to stay executions under § 1983, and we would extend
this holding to Faulder’s claim under the Alien Tort Claims Act, 28
U.S.C. § 1350. See Moody v. Rodriguez, 164 F.3d 893 (5th Cir.
1999). The essence of Faulder’s last-minute request for relief in
the district court and this court is an attempt ultimately to
obtain an injunction against the death sentence lawfully imposed
upon him by the state of Texas. He is asking the federal courts to
interfere with the state’s carrying out of the death penalty. This
is tantamount to seeking “a remedy available to effect discharge
from any confinement contrary to the Constitution or fundamental
2
law . . .” Preiser v. Rodriguez, 411 U.S. 475, 485, 93 S.Ct. 1827,
1834 (1973). Faulder’s exclusive, appropriate remedy was for a
writ of habeas corpus to obtain this equitable relief.
Finally, if we are in error about the courts’ lack of
jurisdiction, we nevertheless reject Faulder’s claims on the merits
for the reasons stated by the district court.1
This court lacks appellate jurisdiction. Alternatively,
the motion of the appellant Joseph Faulder to stay his execution is
DENIED, and the district court’s dismissal of Faulder’s motions for
stay and temporary restraining order is AFFIRMED.
1
When this court denied Faulder’s earlier petition for habeas
relief, Faulder v. Johnson, 81 F.3d 515 (5th Cir. 1996), the court
specifically rejected a claim based on Texas’s breach of the Vienna
Convention. Before the court in that proceeding as in this was a
letter dated September 1, 1992 from Texas Assistant Attorney
General Zapalac to a representative of the Embassy of Canada, which
explains the contacts between Texas and the Canadian government
during Faulder’s prosecution and the fact that Faulder maintained
from the time of his arrest that he had no desire to contact his
family in Canada. For that and other reasons, this court earlier
held that the violation of the Vienna Convention amounted to
harmless error.
3