Appeal from the United States District Court for the Middle District of Louisiana.
Before STEWART, Chief Judge, SMITH and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, CIRCUIT JUDGE:
Defendants Bobby Jindal, Governor of Louisiana; the Louisiana Department of Public Safety and Corrections; and various state officials (the "state") appeal a preliminary injunction and stay of execution granted to death-row inmate Christopher Sepulvado. Finding reversible error, we reverse the injunction and the stay.
In 1993, Sepulvado was convicted and sentenced to death for the first-degree murder of his six-year-old stepson. His conviction and sentence were affirmed. State v. Sepulvado, 672 So.2d 158 (La.), cert. denied, 519 U.S. 934 (1996). He sought post-conviction relief in state and federal court. The federal district court denied habeas corpus relief, Sepulvado v. Cain, No. 00-596 (W.D. La. Aug. 9, 2002), and denied Sepulvado's application for a certificate of appealability. In a detailed opinion setting out the facts and proceedings, we denied Sepulvado's request for a certificate of appealability on six issues, Sepulvado v. Cain, No. 02-30909, 2003 WL 261769 (5th Cir.) (per curiam), cert. denied, 540 U.S 842 (2003), then dismissed his successive habeas petition for want of jurisdiction, In re Sepulvado, 707 F.3d 550, 552 (5th Cir. 2013), petition for cert. filed (May 8, 2013) (No. 12-10251).
On December 12, 2012, a state court issued a death warrant and set Sepulvado's execution for February 13, 2013. State law provides that "[e]very sentence of death . . . shall be by lethal injection; that is, by the intravenous injection of a substance or substances in a lethal quantity into the body of a person convicted until such person is dead." La. R.S. 15:569(B) (2012). "Prior to 2010, the State of Louisiana used a three-drug procedure to execute inmates via lethal injection." Hoffman v. Jindal [Hoffman I], No. 12-796-JJB, 2013 WL 489809, at *1 (M.D. La. Feb. 7, 2013). Since 2010, the first drug in the procedure— sodium thiopental—has been unavailable. In December 2010, the state repealed the section of its administrative code enumerating the specific procedures to be followed for the lethal injection of those individuals sentenced to death.
On December 20, 2012, death-row inmate Jessie Hoffman sued under 42 U.S.C. § 1983 alleging, among other claims, that the state's refusal to disclose the details of its execution protocol violates the Due Process Clause of the Fourteenth Amendment. "Counsel for the State has indicated that . . . a single dose of pentobarbital will now be used to execute inmates. However, the State has refused to officially disclose what the protocol is until formal discovery procedures have been complied with." Hoffman I, 2013 WL 489809, at *1.
On February 6, 2013, the district court granted Sepulvado's January 23 motion to intervene in Hoffman's suit. The next day—less than a week before Sepulvado's scheduled execution—the court issued a preliminary injunction and stay, reasoning as follows:
"Fundamental fairness, if not due process, requires that the execution protocol that will regulate an inmate's death be forwarded to him in prompt and timely fashion." Oken v. Sizer, 321 F.Supp.2d 658, 664 (D. Md. 2004). Fundamental fairness requires that the inmate be given meaningful and adequate notice of how his rights have been affected by the changes in the execution protocol. Sepulvado is entitled to review the full protocol itself.
Id. at *2.
We begin by noting what is not at issue. Sepulvado does not challenge the legitimacy or legality of his death sentence, which has been upheld by every court that has considered it over the past two decades. "[C]apital punishment is constitutional. . . . It necessarily follows that there must be a means of carrying it out." In Baze, the Court explicitly approved lethal injection as a legal means of execution.
Baze addressed Kentucky's three-drug protocol, but "a one drug protocol [is] also acceptable under the flexible Baze standard. . . ." Thorson v. Epps [Thorson II], 701 F.3d 444, 447 n.3 (5th Cir. 2012), petition for cert. filed (Feb. 12, 2013) (No. 12-1010). Other federal courts of appeals agree that pentobarbital-only protocols comport with the Eighth Amendment's prohibition against cruel and unusual punishment. Indeed, the losing plaintiffs in Baze urged Kentucky to do what Louisiana has done: Adopt ...