Willie Trottie v. Brad Livingston , 766 F.3d 450 ( 2014 )

Case: 14-70028 Document: 00512762680 Page: 1 Date Filed: 09/09/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-70028 FILED
September 9, 2014
Lyle W. Cayce
WILLIE TYRON TROTTIE, Clerk
Plaintiff–Appellant,
v.
BRAD LIVINGSTON, ET AL.,
Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:
Willie Tyrone Trottie is scheduled to be executed in Texas on Wednesday,
September 10, 2014. Trottie filed a § 1983 law suit alleging violations of the
Eighth and Fourteenth Amendments based on the method of his execution.
The district court denied Trottie’s motion for a preliminary injunction or
temporary restraining order. We AFFIRM.
I.
Trottie was convicted and sentenced to death for the murders of Barbara
and Titus Canada while in the course of committing and attempting to commit
burglary of a habitation. The Court of Criminal Appeals affirmed Trottie’s
conviction and sentence. Trottie v. State, No. 71,793 (Tex. Crim. App. 1995).
Trottie filed a state application for writ of habeas corpus on August 18, 1997,
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which the Court of Criminal Appeals denied. Ex parte Trottie, No. 70,302-01
(Tex. Crim. App. Feb. 11, 2009).
Trottie then filed a federal habeas petition. Trottie v. Stephens, No. 4:09-
cv-435 (S.D. Tex. 2011). The district court denied Trottie’s petition and denied
him a certificate of appealability (“COA”). This court also denied an
application for a COA. Trottie v. Stephens, 720 F.3d 231 (5th Cir. 2013), cert.
denied, 134 S. Ct. 1540 (March 24, 2014). Trottie then filed a second state
habeas application in the Court of Criminal Appeals, which was dismissed as
an abuse of the writ. Ex parte Trottie, No. 70,302-02 (Tex. Crim. App. Sept. 4,
2014).
On September 10, 2014, Trottie filed a § 1983 complaint in the United
States District Court for the Southern District of Texas. He sought a
temporary or preliminary injunction to stay his execution, arguing that the
State has been secretive concerning the origins of the drug to be used in his
execution and any testing of that drug. Trottie argues that the secrecy, in
conjunction with several “botched” executions in other states, creates an
unacceptable risk that his execution will be severely painful in violation of the
Eighth Amendment. Furthermore, Trottie asserts that the failure to disclose
this information is a violation of his due process rights. On September 5, 2014,
Judge Atlas denied the motion in a thoughtful and thorough opinion. Trottie
v. Livingston, et al., No. 4:14-2550 (S.D. Tex. Sept. 5, 2014). Trottie appeals.
II.
We review a denial of a motion for preliminary injunction for abuse of
discretion. Janvey v. Alguire, 647 F.3d 585, 591–92 (5th Cir. 2011). The
Supreme Court recognized a narrow exception to the general rule that prevents
federal courts from granting stays where a state’s execution procedures would
not comport with the Constitution. See Baze v. Rees, 553 U.S. 35, 61 (2008).
Filing a Ҥ 1983 [action] does not entitle the complainant to an order staying
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an execution as a matter of course.” Hill v. McDonough, 547 U.S. 573, 583–85
(2006). Rather, “a stay of execution is an equitable remedy that is not available
as a matter of right, and equity must be sensitive to the State’s strong interest
in enforcing its criminal judgments without undue interference from the
federal courts.” Nelson v. Campbell, 541 U.S. 647, 649–50 (2004).
To be entitled to a preliminary injunction, a movant must establish (1) a
likelihood of success on the merits; (2) a substantial threat of irreparable
injury; (3) that the threatened injury if the injunction is denied outweighs any
harm that will result if the injunction is granted; and (4) that the grant of an
injunction will not disserve the public interest. Sells v. Livingston, 750 F.3d
480 (5th Cir. 2014) (citing Janvey, 647 F.3d at 595).
III.
Trottie alleges that he has a due process right to information regarding
the pentobarbital the Texas Department of Criminal Justice (“TDCJ”) plans to
use during his scheduled execution, including the source of the drug, how it is
prepared, and who has tested it. The State has already disclosed that Trottie
will be executed with a 5g dose of pentobarbital obtained from a licensed
compounding pharmacy within the United States and that the pentobarbital
to be used has been tested by an independent laboratory and found to be 108%
potent and free from contaminants. The State also asserts that the drug is not
expired and will not expire until September 30, 2014. Moreover, the State
disclosed that the execution will be carried out in accordance with the TDCJ’s
July 9, 2012, Execution Procedure, which has been the procedure used in
thirty-three executions in Texas.
Trottie has no likelihood of success on the merits because his argument
is foreclosed by our precedent. A due process right to disclosure requires an
inmate to show a cognizable liberty interest in obtaining information about
execution protocols. Trottie speculates that there are unknowns regarding the
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drug to be used which may add an unacceptable risk of pain and suffering.
However, we have held that an uncertainty as to the method of execution is
not a cognizable liberty interest. Sepulvado v. Jindal, 729 F.3d 413, 420 (5th
Cir. 2013), cert. denied, 134 S. Ct. 1789 (2014). A death row inmate is entitled
to an injunction if he points to “some hypothetical situation, based on science
and fact, showing a likelihood of severe pain.” Whitaker v. Livingston, 732 F.3d
465, 468 (5th Cir. 2013). “[M]ere speculation is not enough.” Id. at 469. Trottie
relies on speculation alone and thus has not articulated a cognizable liberty
interest.
This court has upheld the State’s procedure, which includes a drug team
that prepares two syringes containing the pentobarbital and a medically
trained individual who inserts the intravenous catheters. 1 See Raby v.
Livingston, 600 F.3d 552, 555–56 (5th Cir. 2010). Trottie has not alleged any
change in the State’s procedure or execution drug that would distinguish the
prior unsuccessful legal challenges. Indeed, Trottie’s request is nearly
identical to the request made in Sells, in which the State used the same July
9, 2012 Execution Procedure as will be used here. In Sells, the inmates sought
the source of the pentobarbital, documentation reflecting the
purchase of the drug, the timing and means of storage of the drug,
the date of manufacture/mixing of the drug, any lot numbers which
may exist, the raw ingredients used to make the drug and the
source of same, the testing that was conducted on the drug and the
results of that testing, and the laboratory and names of its
personnel which conducted the testing.
1 The only difference between the July 9, 2012, Execution Procedure and the procedure
we considered in Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010), is a change from the use
of three drugs to a single drug. It is well established in this circuit that the single-drug
protocol is valid. See Sells, 750 F.3d at 481; Thorson v. Epps, 701 F.3d 444, 447 n.3 (5th Cir.
2012); see also Campbell v. Livingston, et al., 2014 WL 1887578 (5th Cir. May 12, 2014), cert.
denied, 134 S. Ct. 2829 (2014).
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Sells, 750 F.3d at 480. The Sells court denied the inmates’ request because
“[n]o appellate decision had yet held that obtaining information about
execution protocols was a liberty interest, which meant that failing to disclose
could not be a due-process violation.” Id. at 481. We are bound by Sells. See
Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is
a well-settled Fifth Circuit rule of orderliness that one panel of our court may
not overturn another panel’s decision, absent an intervening change in the law,
such as by a statutory amendment, or the Supreme Court, or our en banc
court.”).
Pursuant to binding precedent, we conclude that Trottie has not shown
a likelihood of success on his constitutional claims. Accordingly, we AFFIRM
the district court’s denial of Trottie’s motion for a preliminary injunction or
temporary restraining order. The stay of execution is DENIED.
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