PER CURIAM:
The state defendants seek vacatur of a temporary restraining order (“TRO”) that prohibits the State of Texas from using a particular combination of chemicals during the execution of David Harris, scheduled for June 30, 2004.1 Agreeing with the [416]*416state that Harris is not entitled to equitable relief because he has “delayed unnecessarily in bringing the claim,” Nelson v. Campbell, - U.S. -, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004), we vacate the TRO and render judgment of dismissal.
I.
Harris was convicted of capital murder and sentenced to death in April 1986. Eighteen years later, in April of the current year, he sued under 42 U.S.C. § 1983 challenging the manner in which Texas intends to carry out that sentence. The claim was filed six weeks after the denial of his first federal habeas petition was finalized by the Supreme Court’s denial of his petition for a writ of certiorari, see Harris v. Dretke, - U.S. -, 124 S.Ct. 1503, 158 L.Ed.2d 152 (2004), and ten weeks before his scheduled execution.
The district court, relying on Martinez v. Tex. Ct. of Crim. Appeals, 292 F.3d 417, 421 (5th Cir.2002), determined that Harris’s complaint had to be construed as a successive 28 U.S.C. § 2254 petition for a writ of habeas corpus, and dismissed the petition for failure to seek this court’s authorization before its filing. Cf. 28 U.S.C. § 2244(b)(3)(A). In an unpublished order, we reversed and remanded for reconsideration in light of the intervening decision in Nelson, 124 S.Ct. at 2122-25, which we interpreted as overturning Martinez’s categorical bar on § 1983 method-of execution suits. Harris v. Dretke, 2004 WL 1427042 (5th Cir. June 23, 2004) (per curiam) (unpublished).
On remand, the district court diligently requested briefing and argument, then held that Harris’s complaint is cognizable under § 1983 because it challenges only the state’s discretionary choice of execution methods and not the execution itself. The court also decided that Harris had not unreasonably delayed the filing of his claim and had otherwise satisfied the standards for receiving a TRO. See, e.g., Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998).
II.
In Nelson, 124 S.Ct. at 2123-24, the Court held that method-of-execution claims may be brought in a § 1983 suit instead of a habeas petition, so long as the claim fits within certain limitations. Recognizing that a challenge to a method of execution is not aptly described as either a challenge to the validity of the death sentence (a paradigmatic habeas claim), or as a challenge to the conditions of the inmate’s confinement (a paradigmatic § 1983 claim), the court declined to “resolve the question of how to treat method-of-execution claims generally.” Id. at 2125. Whatever the tipping point before a § 1983 method of execution claim becomes a broader challenge cognizable only in habeas, it is apparent that one of the animating principles is Nelson’s requirement that the § 1983 claim not unduly threaten the state’s ability to carry out the scheduled execution. Id. at 2124-25.
To that end, Nelson’s analysis focuses not just on whether there are medically viable alternatives to the challenged procedure, but also on whether those alternatives are even open to the executioners as a matter of state law. Id. at 2123-24. Similarly, “the mere fact that an inmate states a cognizable § 1983 claim does not [417]*417warrant the entry of a stay as a matter of right,” id. at 2125-26, and “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id. at 2126 (quoting Gomez v. United States Dist. Ct., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam)).
III.
We do not decide whether Harris properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks. See Gomez, 503 U.S. at 654, 112 S.Ct. 1652. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. Unlike the plaintiff in Nelson — who challenged a procedure that had been newly instituted to address his unique medical condition — Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state’s intention to execute him by injecting the three chemicals he now challenges.2
Instead, Harris makes four arguments to explain the reasonableness of putting off his claim until this time. None is persuasive.
First, Harris argues that he was not dilatory, because it was not until March of this year that the Supreme Court denied the certiorari petition in his habeas proceeding, and up until that point he had a reasonable expectation that he would receive habeas relief that would render his complaint unnecessary. In accepting this argument, the district court remarked that “[tjhere was no reason for him to attack the method of his execution before that date.”
That argument is nothing more than a restatement of the very thing the plaintiff is not entitled to do under Gomez, 503 U.S. at 654, 112 S.Ct. 1652 — namely, to wait until his execution is imminent before suing to enjoin the state’s method of carrying it out. The denial of certiorari may well have cast the issue in a new and urgent light for Harris, but it also entitled the state to set a date for, and proceed with, his execution. The brief window of time between the denial of certiorari and the state’s chosen execution date — in this case, four months — is an insufficient period in which to serve a complaint, conduct discovery, depose experts, and litigate the issue on the merits.
By waiting until the execution date was set, Harris left the state with a Hobbesian choice: It could either accede to Harris’s demands and execute him in the manner he deems most acceptable, even if the state’s methods are not violative of the Eighth Amendment; or it could defend the validity of its methods on the merits, requiring a stay of execution until the matter could be resolved at trial. Under Harris’s scheme, and whatever the state’s choice would have been, it would have been the timing of Harris’s complaint, not its substantive merit, that would have driven the result.
Indeed, on the facts of the present case, it is uncertain whether the state even has that much of a choice. Harris’s initial complaint failed to specify an adequate and [418]*418acceptable alternative to the state’s lethal execution procedures. It was not until he filed papers on remand before the district court, five days before his execution, that Harris finally specified precisely which alternatives he would find acceptable.
Free access — add to your briefcase to read the full text and ask questions with AI
PER CURIAM:
The state defendants seek vacatur of a temporary restraining order (“TRO”) that prohibits the State of Texas from using a particular combination of chemicals during the execution of David Harris, scheduled for June 30, 2004.1 Agreeing with the [416]*416state that Harris is not entitled to equitable relief because he has “delayed unnecessarily in bringing the claim,” Nelson v. Campbell, - U.S. -, 124 S.Ct. 2117, 2126, 158 L.Ed.2d 924 (2004), we vacate the TRO and render judgment of dismissal.
I.
Harris was convicted of capital murder and sentenced to death in April 1986. Eighteen years later, in April of the current year, he sued under 42 U.S.C. § 1983 challenging the manner in which Texas intends to carry out that sentence. The claim was filed six weeks after the denial of his first federal habeas petition was finalized by the Supreme Court’s denial of his petition for a writ of certiorari, see Harris v. Dretke, - U.S. -, 124 S.Ct. 1503, 158 L.Ed.2d 152 (2004), and ten weeks before his scheduled execution.
The district court, relying on Martinez v. Tex. Ct. of Crim. Appeals, 292 F.3d 417, 421 (5th Cir.2002), determined that Harris’s complaint had to be construed as a successive 28 U.S.C. § 2254 petition for a writ of habeas corpus, and dismissed the petition for failure to seek this court’s authorization before its filing. Cf. 28 U.S.C. § 2244(b)(3)(A). In an unpublished order, we reversed and remanded for reconsideration in light of the intervening decision in Nelson, 124 S.Ct. at 2122-25, which we interpreted as overturning Martinez’s categorical bar on § 1983 method-of execution suits. Harris v. Dretke, 2004 WL 1427042 (5th Cir. June 23, 2004) (per curiam) (unpublished).
On remand, the district court diligently requested briefing and argument, then held that Harris’s complaint is cognizable under § 1983 because it challenges only the state’s discretionary choice of execution methods and not the execution itself. The court also decided that Harris had not unreasonably delayed the filing of his claim and had otherwise satisfied the standards for receiving a TRO. See, e.g., Hoover v. Morales, 164 F.3d 221, 224 (5th Cir.1998).
II.
In Nelson, 124 S.Ct. at 2123-24, the Court held that method-of-execution claims may be brought in a § 1983 suit instead of a habeas petition, so long as the claim fits within certain limitations. Recognizing that a challenge to a method of execution is not aptly described as either a challenge to the validity of the death sentence (a paradigmatic habeas claim), or as a challenge to the conditions of the inmate’s confinement (a paradigmatic § 1983 claim), the court declined to “resolve the question of how to treat method-of-execution claims generally.” Id. at 2125. Whatever the tipping point before a § 1983 method of execution claim becomes a broader challenge cognizable only in habeas, it is apparent that one of the animating principles is Nelson’s requirement that the § 1983 claim not unduly threaten the state’s ability to carry out the scheduled execution. Id. at 2124-25.
To that end, Nelson’s analysis focuses not just on whether there are medically viable alternatives to the challenged procedure, but also on whether those alternatives are even open to the executioners as a matter of state law. Id. at 2123-24. Similarly, “the mere fact that an inmate states a cognizable § 1983 claim does not [417]*417warrant the entry of a stay as a matter of right,” id. at 2125-26, and “[a] court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.” Id. at 2126 (quoting Gomez v. United States Dist. Ct., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992) (per curiam)).
III.
We do not decide whether Harris properly states a claim under § 1983, because even if he does, he is not entitled to the equitable relief he seeks. See Gomez, 503 U.S. at 654, 112 S.Ct. 1652. Harris has been on death row for eighteen years, yet has chosen only this moment, with his execution imminent, to challenge a procedure for lethal injection that the state has used for an even longer period of time. Unlike the plaintiff in Nelson — who challenged a procedure that had been newly instituted to address his unique medical condition — Harris cannot excuse his delaying until the eleventh hour on the ground that he was unaware of the state’s intention to execute him by injecting the three chemicals he now challenges.2
Instead, Harris makes four arguments to explain the reasonableness of putting off his claim until this time. None is persuasive.
First, Harris argues that he was not dilatory, because it was not until March of this year that the Supreme Court denied the certiorari petition in his habeas proceeding, and up until that point he had a reasonable expectation that he would receive habeas relief that would render his complaint unnecessary. In accepting this argument, the district court remarked that “[tjhere was no reason for him to attack the method of his execution before that date.”
That argument is nothing more than a restatement of the very thing the plaintiff is not entitled to do under Gomez, 503 U.S. at 654, 112 S.Ct. 1652 — namely, to wait until his execution is imminent before suing to enjoin the state’s method of carrying it out. The denial of certiorari may well have cast the issue in a new and urgent light for Harris, but it also entitled the state to set a date for, and proceed with, his execution. The brief window of time between the denial of certiorari and the state’s chosen execution date — in this case, four months — is an insufficient period in which to serve a complaint, conduct discovery, depose experts, and litigate the issue on the merits.
By waiting until the execution date was set, Harris left the state with a Hobbesian choice: It could either accede to Harris’s demands and execute him in the manner he deems most acceptable, even if the state’s methods are not violative of the Eighth Amendment; or it could defend the validity of its methods on the merits, requiring a stay of execution until the matter could be resolved at trial. Under Harris’s scheme, and whatever the state’s choice would have been, it would have been the timing of Harris’s complaint, not its substantive merit, that would have driven the result.
Indeed, on the facts of the present case, it is uncertain whether the state even has that much of a choice. Harris’s initial complaint failed to specify an adequate and [418]*418acceptable alternative to the state’s lethal execution procedures. It was not until he filed papers on remand before the district court, five days before his execution, that Harris finally specified precisely which alternatives he would find acceptable. Given that limited amount of response time, it is not evident that the state is even capable of carrying out the execution using these alternative methods.
That is an untenable position in which to place the state. For the entirety of his eighteen years on death row, Harris knew of the state’s intention to execute him in this manner. It was during that period— in which the execution was not so much an imminent or impending danger as it was an event reasonably likely to occur in the future — that he needed to file this challenge.3 By waiting as long as he did, Harris leaves little doubt that the real purpose behind his claim is to seek a delay of his execution, not merely to effect an alteration of the manner in which it is carried out.
Second, and related, Harris argues that the delay can be justified by the fact that he has spent the last eighteen years in continuous litigation challenging the basis for his conviction and sentence. In accepting this argument, the district court remarked that it could not “discern where in this chronological list of events Mr. Harris might have had ‘ample’ time to make this § 1983 claim.”
That argument, respectfully, mistakes the fundamental reality that Harris’s § 1983 claim, to be considered viable at all, must seek a form of relief wholly apart from that which he pursued in his collateral attacks on the underlying conviction and sentence. The fact that Harris was challenging his conviction on direct and collateral appeal has no bearing on his right to use § 1983 as a vehicle for challenging the conditions of his confinement, because the two claims can proceed parallel to one another.
To the extent Harris’s argument is that he lacked the resources to pursue both claims at once, this is belied by the fact that there were extensive periods in which his habeas case was stayed pending the outcome of related cases before the Supreme Court, as well as by the flurry of last-minute habeas filings Harris has managed to make in parallel to the present suit. There is no convincing reason why Harris could not have brought this claim at any point during his eighteen-year stay on death row, had he but felt the urgency to do so.
Third, Harris argues that the claim was previously unavailable to him because of the procedural rule this court established in Martinez, 292 F.3d at 421. He therefore reasons that the claim was unavailable to him until the decision in Nelson opened the door for § 1983 method-of-execution claims. Harris makes this argument despite the fact that he filed suit well over a month before Nelson was decided, and despite the fact that the plaintiff in Nelson was similarly barred by circuit precedent at the time he filed his suit. So long as there remains the possibility of en banc reconsideration and Supreme Court re[419]*419view, circuit law does not completely foreclose all avenues for relief.
Even if we bought the premise of Harris’s argument — that Martinez rendered his claim procedurally unavailable — we could not accept, as a conclusion, that it excuses his late filing. Martinez was rendered in 2002, so it provides no explanation, let alone excuse, for Harris’s refusal to bring this claim for the overwhelming amount of his lengthy stay on death row.
Finally, Harris argues that the claim was previously factually unavailable to him because it relies on standards of decency that — he alleges — have only recently evolved to the point of finding lethal injection unconstitutionally cruel.4 Taken to its logical conclusion, Harris’s argument is that an Eighth Amendment method-of-execution claim can never be considered dilatory, because the condemned has an interest in awaiting the day when, he hopes, society comes to share his view of capital punishment, and his complaint once filed will be viewed in light of society’s most recent progress along that path.
The incentives Harris identifies do not provide an excuse for delaying his suit. Undoubtedly, the plaintiff in Gomez, 503 U.S. at 653, 112 S.Ct. 1652, stood a stronger chance of successfully challenging California’s use of the gas chamber in 1992, than he did at the time of his conviction and sentence in 1979, but that fact did not entitle him to delay until the eleventh hour. Id. at 654, 112 S.Ct. 1652. Although we have ample reason to doubt whether societal standards of decency have evolved to the point at which Harris claims them to be,5 he could have chosen to take advantage of the legal procedures offered by a similarly mature and tolerant society just a few years ago. Had he done so, Harris would have had an opportunity to proceed to an adjudication of his claims on the merits. Having chosen instead to litigate this issue in the final days before the state carries out his execution, his suit can serve no purpose but to further delay justice that is already eighteen years in the making.
Accordingly, we VACATE the temporary restraining order and DISMISS Harris’s complaint.