[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-16408 December 13, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 06-01083-CV-HLA-MCR
ANGEL NIEVES DIAZ,
Plaintiff-Appellant,
versus
JAMES MCDONOUGH
Secretary, Florida Department of Corrections, and
CHARLES J. CRIST, JR.,
Florida Attorney General,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 13, 2006)
Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Angel Nieves Diaz, a Florida prisoner under sentence of death,
moves this Court for a stay of execution and appeals the denial by the district court
of his request for a preliminary injunction. Diaz, who is scheduled to be executed
by lethal injection on December 13, 2006, filed pro se a complaint under section
1983 in the Middle District of Florida and alleged that the lethal injection protocol
used by the Florida Department of Corrections will cause him unnecessary pain
and subject him to cruel and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the United States Constitution. The district court
denied Diaz’s request for a preliminary injunction. We deny his petition.
The background of the underlying case that led to Diaz’s death sentence is
described in the decision of the Florida Supreme Court that affirmed Diaz’s
conviction and death sentence on direct appeal. Diaz v. State, 513 So. 2d 1045,
1046 (Fla. 1987). In the succeeding years, Diaz sought in various unsuccessful
appeals and collateral proceedings, in both state and federal court, to have his
conviction and death sentence overturned. On December 11, 2006, less than three
days before his scheduled execution, Diaz filed pro se his complaint under section
1983 to challenge the three-drug lethal injection method used by Florida to carry
out executions on the ground that it constituted cruel and unusual punishment in
violation of the Eighth and Fourteenth Amendments to the Constitution of the
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United States. Diaz requested “a preliminary temporary injunction prohibiting his
execution, a permanent injunction barring the Defendants from executing him
under the current protocol, an evidentiary hearing and the appointment of
counsel.” The district court denied the motion for a preliminary injunction
because the district court concluded that Diaz failed to establish a “significant
possibility of success on the merits” and based on the strong equitable
presumption against granting a last minute stay.
Diaz now moves this Court for a stay of execution. Although Diaz
describes his motion as one for a stay of execution, it is apparent that he petitions
for an order temporarily enjoining the State from carrying out his execution until
his appeal of the denial of his motion for a preliminary injunction can be decided.
“[A] stay of execution is an equitable remedy. It is not available as a matter of
right, and equity must be sensitive to the State’s strong interest in enforcing its
criminal judgments.” Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006). “A court
considering a stay must also apply ‘a strong equitable presumption against the
grant of a stay where a claim could have been brought at such a time as to allow
consideration of the merits without requiring entry of a stay.’” Hill v.
McDonough, 126 S. Ct. at 2104 (citation omitted). “[W]e consider [Diaz’s]
motion for injunctive relief . . . with the clear indication from the Supreme Court .
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. . that we may deny [Diaz’s] request if the equities demand that result.” Hill v.
McDonough, 464 F.3d 1256, 1258 (11th Cir. 2006).
Because Diaz requests a preliminary injunction solely for the purpose of
allowing time to pursue his appeal, the injunction sought is “one grounded in the
authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a).” Id.
The All Writs Act states, “The Supreme Court and all courts established by Act of
Congress may issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §
1651(a). To obtain an injunction under the All Writs Act, the injunction “must
simply point to some ongoing proceeding, or some past order or judgment, the
integrity of which is being threatened by someone else’s action or behavior.” Klay
v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004). Diaz has filed
a notice of appeal of the denial of his motion for a preliminary injunction, and we
have jurisdiction over that appeal. See 28 U.S.C. § 1292(a)(1). We could grant an
injunction to protect our jurisdiction to hear Diaz’s appeal.
Because we find that the equities do not support Diaz’s request, we decline
to grant an injunction. Diaz filed his section 1983 complaint and request for
injunctive relief less than three days before his scheduled execution and shortly
after the Florida Supreme Court denied his application for post-conviction relief
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on, among other grounds, his challenge to the Florida lethal injection protocol.
See Diaz v. State, -- So. 2d --, 2006 WL 3530471 (Fla. Dec. 8, 2006). Diaz was
either aware or should have been aware of the grounds for his section 1983 claim
much earlier than the date on which he filed his complaint. In fact, Diaz knew or
should have known of the grounds for his claim long before he filed his complaint
because the Florida Supreme Court considered a challenge to the Florida lethal
injection protocols on similar grounds as early as 2000. See Sims v. State, 754 So.
2d 657, 666-68 (Fla.2000). In the light of this history, Diaz cannot claim that he
could not have filed his federal complaint at an earlier date that would have
allowed the courts to address the complaint on the merits without the necessity of
a stay.
Diaz’s motion for a stay of execution is DENIED.
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