Donald Beaty v. Janice Brewer

649 F.3d 1071, 2011 U.S. App. LEXIS 10878

Opinions

ORDER

Pursuant to the rules applicable to capital cases in which an execution date has been scheduled, a deadline was established by which any judge could request a vote on whether the panel’s order should be reheard en banc. A judge requested a vote on whether to rehear the panel’s decision en banc. Judges Silverman and Ikuta were recused and did not participate in the vote.

A majority of the non-recused active judges did not vote in favor of rehearing en banc. Therefore, the panel’s order is the final order of this Court. A copy of the panel order, along with a copy of the district court order to which it refers is attached. Also attached is a dissent from the order denying rehearing en banc and a concurrence in the order.

No further petitions for rehearing or rehearing en banc will be entertained as to the order. The previously issued temporary stay of execution is VACATED. Before: O’SCANNLAIN, GRABER, and McKEOWN, Circuit Judges.

Donald Beaty is scheduled to be executed by the State of Arizona today, Wednesday, May 25, 2011. Earlier today, the district court denied Beaty’s Motion for Temporary Restraining Order or Preliminary Injunction. Beaty subsequently filed, in this court, an Emergency Motion Under Circuit Rule 27-3 for an Injunction.

To obtain preliminary injunctive relief, a plaintiff must demonstrate (1) that he is likely to succeed on the merits of such a claim, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 374, 172 L.Ed.2d 249 (2008). We acknowledge that Beaty has a strong interest in being executed in a constitutional manner, but he has not shown that this interest is threatened in this case. For the reasons expressed by the district court, we conclude that Beaty has failed to satisfy this standard.

Accordingly, Beaty’s motion is DENIED.