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David Ray HARRIS

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Kidnapping
Number of victims: 1
Date of murder: September 1, 1985
Date of arrest: 4 days after
Date of birth: October 19, 1960
Victim profile: Mark Mays (male, 30)
Method of murder: Shooting (.38-caliber pistol)
Location: Jefferson County, Texas, USA
Status: Executed by lethal injection in Texas on June 30, 2004
 
 

 
 

 

Summary:

Armed with a .38 handgun, Harris broke into the apartment of Mark Mays in Beaumont as Mays and his girlfriend, Roxanne Lockard, slept in a bedroom.

Harris awakened them and ordered Mays to lock himself in a hallway bathroom. He then led Lockard out the back door into his pickup truck.

Mays was able to free himself, picked up a pistol, and confronted Harris in the parking lot. Both men exchanged fire. Mays was struck five times, the last from a distance of 12--24 inches, and died from his wounds. Harris was hit in the neck and arm, jumped in his truck, and fled. Lockard escaped unharmed.

Harris was arrested 4 days later when he was pulled over for drunk driving.

Harris was court martialed and dishonorably discharged from the U.S. Army. He was sentenced to confinement as a result of burglary and thefts he committed while stationed in Germany.

He also was convicted of robbery, burglary and two counts of attempted burglary in California where he was sentenced to six and a half years in California prison .

Harris gained notoriety for his false testimony against Randall Dale Adams, in a case featured in the documentary "Thin Blue Line." Harris later recanted his testimony and Adams released.

Citations:

Harris v. State, 784 S.W.2d 5 (Tex.Cr.App. 1989) (Direct Appeal).
Harris v. Texas, 110 S.Ct. 1837 (1990) (Cert. denied).
Ex parte Harris, 825 S.W.2d 120 (Tex.Crim.App.,1991) (State Habeas).
Harris v. Dretke, 2004 WL 1427042 (5th Cir.2004) (Sec. 1983).

Final Meal:

A double bacon burger with cheese, lettuce, onions, mayo and tomato, onion rings, french fries, one BBQ beef sandwich w/fries and cole slaw, 2 pieces of coffee cake, tea w/lemon, a pitcher of lemonade and two 1/2 pints of milk.

Final Words:

"Sir, in honor of a true American hero, 'let's roll. Lord Jesus receive my spirit. I'm done."

ClarkProsecutor.org


Texas Attorney General

Tuesday, June 22, 2004

Media Advisory: David Ray Harris Scheduled For Execution.

AUSTIN – Texas Attorney General Greg Abbott offers the following information on David Ray Harris, who is scheduled to be executed after 6 p.m. Wednesday, June 30, 2004

In 1986, David Ray Harris was sentenced to die for the capital murder of Mark Mays in Beaumont in 1985. A summary of the evidence presented at trial follows.

FACTS OF THE CRIME

In the pre-dawn hours of September 1, 1985, Harris broke into the apartment of Mark Mays in Beaumont as Mays and his girlfriend, Roxanne Lockard, slept in a bedroom. Harris, armed with a .38 caliber revolver, awakened them and ordered Mays to lock himself in a hallway bathroom. He then led Lockard out the back door of the apartment at gunpoint and directed her to get into his pickup truck in a driveway behind the apartment complex.

At about the same time, Mays exited the back door of the apartment and stood in front of Harris’ truck with a gun in his hands. Lockard testified at trial that after hearing gunfire, she got out of the truck and saw Mays in front of the vehicle, partially bent over. Realizing Mays had been shot, Lockhard ran inside the apartment complex to ask someone to call police and an ambulance.

Lockhard testified she could not determine who fired first and that she did not see Harris when the gunfire erupted. Police found Mays lying in a pool of blood with his gun underneath him. An autopsy revealed he died from multiple gunshot wounds. Evidence showed that Mays fired his gun at least four times.

According to Harris, Mays shot first, hitting Harris in the neck then in the shoulder, before Harris ducked behind the door of his truck and began shooting at Mays. After shooting Mays several times, Harris ran to the front of the truck where he saw Mays on his hands and knees and shot him one last time, this time from about ten feet away.

However, a forensic pathologist testified that the evidence indicates the muzzle of the gun was within twelve to twenty-four inches of Mays’ body when one of the fatal shots was fired. Harris got into his truck and drove away after the fatal shooting.

PROCEDURAL HISTORY

  • Sept. 26, 1985 — Harris was indicted for capital murder in Jefferson County.

  • April 1986 — A Jefferson County jury found Harris guilty of capital murder and assesses a death sentence.

  • Sept. 13, 1989 — Texas Court of Criminal Appeals affirmed Harris’ conviction and sentence on direct appeal.

  • Nov. 26, 1989 — The Texas Court of Criminal Appeals denied a rehearing.

  • April 16, 1990 — The U.S. Supreme Court denied certiorari review.

  • Sept. 12, 1990 — Harris filed a state habeas corpus application.

  • Jan. 10, 1991 — Trial court issued order recommending denial of habeas corpus relief.

  • Dec. 18, 1991 — The Texas Court of Criminal Appeals denied habeas corpus relief.

  • Jan. 29, 1992 — The Texas Court of Criminal Appeals denied a rehearing.

  • April 28, 1992 — Harris filed a petition for a writ of habeas corpus in the U.S. District Court.

  • July 15-16, 1996 — Judge Justice conducted the first evidentiary hearing.

  • Aug. 31, 1998 — Judge Justice conducts second evidentiary hearing.

  • Nov. 27, 2001 — Judge Justice issued a memorandum opinion granting habeas corpus relief on punishment.

  • Nov. 18, 2002 — The 5th U.S. Court of Appeals reversed the district court’s grant of relief.

  • Dec. 16, 2002 — The 5th Circuit Court denied a panel rehearing and rehearing en banc.

  • March 1, 2004 — The U.S. Supreme Court denied certiorari review.

  • March 2004 — The state trial court scheduled Harris’ execution for June 30, 2004.

  • April 15, 2004 — Harris filed a complaint in the U.S. District Court challenging Texas execution protocol.

  • April 30, 2004 — Judge Gilmore dismisses Harris’ complaint.

  • May 18, 2004 — Harris filed notice of appeal to the 5th U.S. Circuit Court of Appeals.

  • June 3, 2004 — Harris filed a FRCP 60(b) motion for relief from judgment in U.S. district court.

  • June 4, 2004 — Fifth Circuit expedites appeal and issues briefing schedule; appeal remains pending.

  • June 7, 2004 — Judge Gilmore denied Harris’ Rule 60(b) motion.

  • June 10, 2004 — Harris filed successive state habeas corpus application in the Texas Court of Criminal Appeals.

PRIOR CRIMINAL HISTORY

At the punishment phase of Harris’capital murder trial, the State presented evidence of numerous prior offenses committed by Harris, both adjudicated and unadjudicated, including burglaries, assaults, and robberies. Harris was court-martialed, dishonorably discharged from the Army, and sentenced to confinement as a result of a series of burglary and theft offenses he committed while stationed in Germany.

He was also convicted of robbery, burglary, and two counts of attempted burglary and sentenced to six and a half years in the California Department of Corrections. He was convicted of possession of a deadly weapon by a prisoner while incarcerated in California and was sentenced to an additional two years.

The State also presented evidence concerning Harris’ involvement in the 1976 murder of a Dallas police officer, for which Randall Dale Adams was convicted and sentenced to death. Harris admitted to police officers that he had bragged about being the triggerman because it enhanced his reputation as a bad, tough person. Harris was not charged in connection with the offense, and he testified at Adams’ trial that Adams shot and killed the police officer.

After Harris’ capital murder trial, Adams’conviction was set aside by the Texas Court of Criminal Appeals based on its determination that the State had suppressed evidence favorable to Adams, deceived the trial court, and knowingly used perjured testimony to gain his conviction.

As the court wrote in its opinion on Harris’ direct appeal, “[Harris] was only one witness who committed perjury during Adams’ capital murder trial. [Harris] recanted his trial testimony during the hearing on Adams’ writ of habeas corpus and attested to Adams’ innocence.” Adams’ case was the subject of a documentary, “The Thin Blue Line,” in which Harris appeared. While the jury that sentenced Harris to death did not have the benefit of this information, the documentary claimed that Harris (then 16 years old), not Adams, was responsible for the murder of the Dallas police officer in 1976.


ProDeathPenalty.com

On Wednesday, David Ray Harris, 43, faced execution for breaking into a Beaumont apartment in 1985 and killing a man after trying to abduct the victim's girlfriend. His punishment, while not stopped, was thrown into uncertainty by a temporary restraining order from U.S. District Court Judge Vanessa Gilmore. The order barred Texas prison authorities from using a "chemical cocktail" the inmate's attorneys argued would "likely cause an excruciatingly painful death" and violate Harris' constitutional rights against cruel and unusual punishment.

Tom Kelley, a spokesman for the Texas attorney general's office, said state lawyers were appealing to the 5th U.S. Circuit Court of Appeals in New Orleans to lift the order. It was uncertain what effect the order would have on Wednesday night's execution.

Harris' lawyers, in their arguments, said the combination of sodium thiopental, pancuronium bromide and potassium chloride, used in succession, would "likely cause Mr. Harris consciously to suffer excruciating pain and an agonizing death, while appearing to die peacefully." "At this point, we don't know how we're going to proceed," Texas prison spokeswoman Michelle Lyons said. "We're going to continue to consult with the attorney general's office ... and see what would be the appropriate action."

Harris, who also had an appeal pending that sought a reprieve, gained notoriety for his testimony about the November 1976 slaying of a Dallas police officer that put Randall Dale Adams on death row. Adams' case was the subject of a 1988 film documentary, "The Thin Blue Line," that argued he had been unfairly convicted. Adams was freed from prison in 1989.

UPDATE: David Ray Harris, whose false testimony put a man on death row for more than a decade in a case featured in the documentary "The Thin Blue Line," was executed in Texas on Wednesday for a 1985 murder. Harris, 43, quoted the last words of a passenger on one of the jets hijacked on Sept. 11, 2001, in his final statement. "Sir, in honor of a true American hero, 'let's roll,"' he said before receiving a lethal injection. "Lord Jesus receive my spirit."

He was put to death for killing Mark Mays, 30, in a Sept. 1, 1985, shootout while trying to abduct Mays' girlfriend from his Vidor, Texas, apartment. Harris was the key witness against Randall Dale Adams, who came close to being executed for the 1976 murder of Dallas police officer Robert Wood. Harris testified he picked up Adams while hitchhiking and that Adams shot Wood when he pulled over their car, which was stolen.

Previously, Harris bragged to friends he killed the lawman, but told investigators he had lied to make himself look tough. Later, Harris, who was convicted of Mays' murder in 1986, recanted his testimony and said Adams was not guilty. In 1988, director Errol Morris made the "The Thin Blue Line," making the case that Harris, not Adams, was guilty.

Adams was released from prison in 1989. Harris received a temporary stay of execution on Tuesday from U.S. District Judge Vanessa Gilmore, who ordered a hearing on his attorneys' motion a lethal injection caused great pain and therefore was cruel and unusual punishment forbidden under the Constitution. State attorneys quickly appealed to the 5th U.S. Circuit Court of Appeals in New Orleans, which threw the stay out on Wednesday.


Texas Execution Information Center by David Carson

Txexecutions.org

David Ray Harris, 43, was executed by lethal injection on 30 June 2004 in Huntsville, Texas for murdering a man during an attempted kidnapping.

On 1 September 1985, Mark Mays, 30, and his girlfriend, Roxanne Lockard, 26, were asleep in Mays' apartment. Before dawn, Harris, then 24, broke into the apartment and entered the bedroom. He awakened the couple, and, armed with a .38-caliber pistol, ordered Mays into a bathroom. He then led Lockard out of the back door of the apartment at gunpoint and ordered her into his pickup truck, which was parked in a driveway behind the apartment complex.

While Harris was leaving with Lockard, Mays freed himself, grabbed a 9 mm pistol, and pursued Harris. A shootout ensued in front of Harris' truck. Both men fired five shots. Harris was hit in the neck and shoulder, while Mays suffered wounds to both shoulders, the chin, and chest. Lockard, who was unharmed, got out of the truck, saw Mays bent over in front of it, and ran inside the apartment complex to call for help. Harris got into his truck and drove away. (No information was available on the prior relationship between Harris and his victims.)

At his trial, Harris testified that Mays fired the first shots. After he was hit in the neck and shoulder, he ducked behind the door of his truck and returned fire. He testified that after Mays stopped shooting, he ran in front of the truck, saw Mays on his hands and knees, and shot him one last time. Harris testified that he fired this last shot from about ten feet away, but a forensic pathologist testified that one of the fatal shots was fired from 12 to 24 inches away. Lockard testified that she could not tell who fired first, and that she did not see Harris when the gunfire erupted.

Harris had previous felony convictions in California for robbery, burglary, larceny, and other crimes. He was also found in possession of a deadly weapon while incarcerated in California. Harris had also been court-martialed and dishonorably discharged from the U.S. Army for a series of burglary and theft offenses.

A jury found Harris guilty of capital murder in April 1986 and sentenced him to death. The Texas Court of Criminal appeals affirmed the conviction and sentence in April 1989.

While Harris was on death row, new information came to light in an earlier murder case for which he had been arrested, but not charged. In 1976, Dallas police officer Robert Wood was shot and killed during a traffic stop. Harris, then 16, was arrested while driving the stolen vehicle that was involved in the murder. However, Harris accused Randall Dale Adams, a hitchhiker who he had met and given a ride earlier that day.

The police believed Harris, and prosecutors granted him immunity for his testimony. Harris was the prosecution's chief witness at Adams' trial. Adams was convicted of capital murder and sentenced to death. In 1980, Adams' death sentence was commuted to life in prison after the U.S. Supreme Court ruled that some prospective jurors were improperly disqualified from his case.

Eight years later, Adams was still in prison, and Harris was on death row for Mays' murder. A documentary film, The Thin Blue Line, presented new evidence about the investigation of Wood's murder and Adams' trial. In light of the new evidence uncovered by the film, an evidentiary hearing was held. Harris testified, recanting his earlier accusations of Adams. "Randall Adams knew nothing about this offense and was not in the car at the time," Harris testified. (There were conflicting reports on whether Harris ever admitted to killing Wood.) Adams' capital murder verdict was overturned, and he was released from prison in March 1989.

By April 1992, Harris' state appeals were exhausted, and he began pursuing his federal appeals. In November 2001, U.S. District Judge William Wayne Justice vacated Harris' death sentence. Justice ruled that the jury was inadequately instructed to consider whether Harris was provoked to shoot Mays in self-defense. The state appealed the case to the U.S. Fifth Circuit Court of Appeals, which in November 2002 reversed Judge Justice's decision and reinstated the death sentence.

The day before his scheduled execution, Harris received another stay. A U.S. district judge issued the stay so that Harris could file a lawsuit alleging that death by lethal injection is cruel and unusual punishment. However, the U.S. Fifth Circuit Court of Appeals overruled that decision on Wednesday, and the U.S. Supreme Court declined to hear the case, so Harris' execution proceeded as originally scheduled.

When the warden asked Harris if he had a final statement, Harris replied, "Sir, in honor of a true American hero: Let's roll." "Let's roll" were the words spoken on 11 September 2001 by a passenger on Flight 93 before attacking the men who hijacked that flight. "Lord Jesus, receive my spirit. I'm done, warden," Harris then said. After that, the lethal injection was started.


Harris executed for 1985 slaying

Dallas Morning News

AP June 30, 2004

HUNSTVILLE, Texas -- Convicted killer David Ray Harris has been executed tonight in Huntsville for a 1985 slaying in Beaumont. The shooting victim was Mark Mays. Harris was the tenth convicted killer in Texas to be executed this year.

Harris, in his final statement, referred to the 2001 terrorist attacks. He said, "Sir, in honor of a true American hero: Let's roll." Harris added, "Lord Jesus receive my spirit. I'm done, warden."

Harris was also known for his testimony that wrongly put another man on death row over the 1976 slaying of Dallas Policeman Robert Wood. The case of Randall Dale Adams was detailed in the 1988 documentary "The Thin Blue Line." Adams was released from prison in 1989.


Prisoner prominent in 'Thin Blue Line' case is put to death

by Michael Graczyk

HUNTSVILLE, Texas — A man whose false testimony sent an innocent man to death row before the 1988 documentary "The Thin Blue Line" cast doubt on the evidence was executed Wednesday for an unrelated murder. "Sir, in honor of a true American hero: Let's roll," David Ray Harris said when asked if he had a final statement. "Let's Roll" were the words a passenger was heard saying over a cell phone before attacking the hijackers aboard doomed Flight 93 on Sept. 11, 2001. "Lord Jesus, receive my spirit. I'm done, warden," Harris said. With his eyes closed, he took a deep breath and gasped as the lethal drugs took effect.

Harris, 43, was sentenced to death for a 1985 shootout that killed Mark Mays after Harris tried to abduct the victim's girlfriend. He was the 10th Texas inmate executed this year. A federal judge Tuesday had blocked the lethal injection procedure Texas uses for executions; the 5th U.S. Circuit Court of Appeals overturned the ruling Wednesday afternoon. The U.S. Supreme Court later rejected Harris's appeals.

Harris gained notoriety for implicating Randall Dale Adams, a hitchhiker he had picked up in a stolen car, in the 1976 death of Dallas police officer Robert Wood. Adams, who had no previous criminal record, served 12 years in prison and came within three days of execution in 1979 before his sentence was commuted to life in prison. Adams was released from prison in 1989, a year after the release of Errol Morris' 1988 documentary "The Thin Blue Line," which suggested he had been wrongly convicted.

Appeals seeking to keep Harris from the death chamber Wednesday challenged the reliability of testimony from psychologists at capital murder trials who advise jurors of the likelihood a convicted murderer will be a continued danger to society - one of the questions jurors must answer in deliberating a death sentence. Another appeal challenged the drugs Texas prison officials use in lethal injections. Harris' lawyers argued the three-drug combination would "likely cause an excruciatingly painful death" and violate Harris' constitutional protections against cruel and unusual punishment.

Harris had initially said he and Adams were both in the car when it was stopped by the officer. He later testified he had lied about Adams' involvement, though he stopped short of saying he committed the murder himself. Harris was never charged in the officer's death.


Harris execution carried out; 5th Circuit vacates reprieve

By Salatheia Bryant - Houston Chronicle

AP July 1, 2004

After exhausting all appeal options Wednesday, a Texas inmate whose false testimony sent an innocent man to death row for a 1976 murder was executed for an unrelated slaying. "Sir, in honor of a true American hero, let's roll," David Ray Harris told the warden as he lay strapped to the gurney in the death chamber. "Lord Jesus, receive my spirit."

Harris, 43, was pronounced dead at 6:48 p.m., 11 minutes after the combination of drugs began flowing. His final statement was a reference to the words of Todd Beamer, one of the passengers who rose up against the hijackers on United Airlines Flight 93 on Sept. 11, 2001, leading to its crash in a Pennsylvania field.

Harris, a bricklayer from Vidor, was put to death one day after receiving a delay from a Houston judge because of his appeal claiming that one of the chemicals used in lethal injections causes intense pain. The Texas attorney general's office appealed to the 5th U.S. Circuit Court of Appeals, which vacated the reprieve Wednesday afternoon.

Harris was convicted of murdering Mark Mays of Beaumont in 1985 after breaking into Mays' apartment and trying to abduct his girlfriend. He was the 10th Texas inmate executed this year. Mays' former girlfriend, Roxanne Burkhart, who credits him with enabling her to escape, witnessed the execution with Mays' sister, Melissa Mays Davis. Both said they thought the execution was peaceful and humane. "I can't think of an easier way to go. I don't think getting five bullets in the head is a very humane way to go," said Burkhart. "Tomorrow, there won't be any more victims for David Ray Harris."

U.S. District Judge Vanessa Gilmore granted Harris a delay on Tuesday after his attorneys argued that one of the three chemicals used in the lethal injection -- pancuronium bromide -- amounts to cruel and unusual punishment because it paralyzes inmates, preventing them from showing agony caused by potassium chloride.

Harris may have been better known for his testimony that put an innocent man, Randall Dale Adams, on death row for the 1976 slaying of a Dallas police officer. Adams spent 12 years in prison for the shooting death of officer Robert Wood and, in May 1979, came within three days of execution for a crime he insisted he didn't commit. The following year, the U.S. Supreme Court threw out his death sentence because of jury selection problems.

The case was detailed in The Thin Blue Line, a 1988 documentary film that portrayed Adams as wrongly convicted. His sentence was commuted to life and he was released in 1989. Harris implicated Adams when questioned by authorities. Years later, while on death row for Mays' murder, he recanted his testimony and attested to Adams' innocence. Harris never was charged in Wood's slaying.

According to court records, Harris, then 24, broke into Mays' Beaumont apartment before dawn Sept. 1, 1985. He led Burkhart outside toward his truck, but Mays grabbed a gun and they exchanged shots. Mays was fatally wounded but Burkhart escaped. Harris was arrested four days later. Dianne Clements, president of the local victims' advocacy group Justice for All, said Harris' appeal contending that lethal injection is cruel and unusual was part of a recent trend. "This is the appeal du jour," she said.

The Death Penalty Information Center reports on its Web site that 36 of the 37 states with the death penalty use lethal injection. Texas became the first state to execute someone by injection in 1982. The U.S. Supreme Court in May ruled in a rare 9-0 vote for a death penalty case that an Alabama killer could challenge his scheduled execution by injection. The court ruled that David Nelson could argue in lower courts that cutting his arm or leg to reach veins would be cruel and unusual punishment.

The Chronicle reported in May that at least five Texas inmates, including Harris, had challenged their sentences on grounds that lethal injection causes suffering before death. They lost appeals in lower courts before the U.S. Supreme Court made its decision in the Alabama case. USA Today reported in March that 15 death row prisoners have challenged the legality of the lethal-injection process in the past year. While many received temporary stays of execution, like Harris, all except for Nelson and a Virginia killer lost their appeals and were executed, the newspaper reported.


Vidor man executed for 1985 murder

By Royal M. Hopper III.

The Orange Leader

HUNTSVILLE - A Vidor man was executed at Huntsville state prison Wednesday evening for a 1985 murder committed in Beaumont. Information from the Texas Attorney General's Office said David Ray Harris broke into the apartment of Mark Mays, and his girlfriend Roxanne Lockard, as they slept on Sept. 1 1985. He was armed with a .38 caliber revolver.

He locked Mays in the bathroom and tried to get Lockard into his pick up truck that was parked behind the complex. Mays escaped from the bathroom and came out of the apartment. Mays confronted Harris with a gun and was killed in an exchange of gunfire. Police later found Mays in a pool of blood with his gun underneath him. An autopsy showed that Mays fired his gun at least three times and died from multiple gun shot wounds.

Harris claimed Mays fired first and hit him in the neck and shoulder before he ducked behind the door of his truck. He said he shot Mays several times, including once from 10 feet away. However, a forensic pathologist testified that the muzzle of the gun was within 12 to 24 inches when one of the fatal shots was fired. Harris was convicted of capital murder by a Jefferson County jury in April 1986. He filed unsuccessful appeals every year until his execution Wednesday.

A 2001 appeals decision reversed Harris' death sentence. The ruling was based on the fact that the three-drug "cocktail" used to execute prisoners by lethal injection in Texas was painful and a violation of Harris' constitutional rights against cruel and unusual punishment. It was later thrown out by the Fifth Circuit Court Appeals.

Harris was also court martialed and dishonorably discharged from the U.S. Army. He was sentenced to confinement as a result of burglary and thefts he committed while stationed in Germany. He also was convicted of robbery, burglary and two counts of attempted burglary in California where he was sentenced to six and a half years in California prison said a Texas Attorney General's Office press release.

Harris was perhaps best known for testimony later proven false that sent another man to death row. Randall Dale Adams was convicted of capital murder in the 1976 death of a Dallas police officer based partially on Harris' testimony that it was Adams who shot the officer. Harris, 16 at the time, was not charged in the crime and later recanted his testimony. Adams was later released from prison and the event was made into a movie called the Thin Blue Line.

The National Coalition to Abolish the Death Penalty issued statements opposing the execution because testimony about Harris' abusive childhood and family background were not presented to the jury at trial. They said that information and other mitigating circumstances of the crime might have caused a jury to sentence him to life in prison rather than death.


Texas inmate prominent in "Thin Blue Line" film executed

By Michael Graczyk - Denton Record-Chronicle

07/01/2004

More than 18 years after he was sentenced to death, the legal lifeline ran out for convicted killer David Ray Harris, who gained notoriety from a documentary movie that helped show his false testimony put an innocent man on Texas' death row. Harris, 43, was executed Wednesday night after a flurry of appeals tried to keep him from the Texas death chamber for a 1985 slaying during a break-in and attempted abduction in Beaumont.

Harris became prominent in the 1988 film "The Thin Blue Line," which focused on the unfair conviction of another man, Randall Dale Adams, for the 1976 shooting death of a Dallas police officer. Harris had fingered Adams as the killer of the officer, Robert Wood. Years later, Harris recanted his trial testimony and attested to Adams' innocence.

Adams spent 12 years in prison and in May 1979 came within three days of execution for a slaying he insisted he didn't commit. The following year, the U.S. Supreme Court threw out his death sentence because of jury selection problems at his trial. His sentence was commuted to life and in 1989, a year after the movie, Adams was freed. By that time, Harris, an apprentice bricklayer from Vidor, was on death row for killing Mark Mays, 30, outside Mays' apartment in Beaumont. By then he also had been booted out of the military and had served time in California for burglary and robbery.

Harris' execution, the 10th this year in Texas, was thrown into uncertainty Tuesday when a federal judge, acting on a request from Harris' lawyers, issued a restraining order barring Texas officials from using the three-drug "lethal cocktail" normally injected into an inmate's veins to execute him.

Lawyers said the drugs contributed to an unconstitutionally cruel death, but the Texas attorney general's office appealed to a higher court to get the order lifted. Other appeals in the courts included a contention from defense lawyers that testimony was unreliable from psychiatrists who advised jurors Harris would continue to be a danger if he lived, and that his 18 years on death row amounted to improper cruel and unusual punishment. The Supreme Court rejected all the appeals just after 6 p.m. CDT. Less than an hour later, at 6:48 p.m., he was pronounced dead.

Harris never looked at two members of Mays' family who watched through a window along with Roxanne Burkhart, the woman he had tried to abduct the day Mays was gunned down. He did smile and nod at several friends and relatives, including his father, who was among those watching through an adjacent window. "In honor of a true American hero: Let's roll," Harris said in a brief final statement. "Let's Roll" were the last words a passenger aboard the doomed Flight 93 was heard saying over a cell phone before attacking hijackers on Sept. 11, 2001. "Lord Jesus, receive my spirit. I'm done, warden." After taking a deep breath, he gasped three times in the following seconds as the lethal drugs began taking effect.

According to court records, Harris, then 24, broke into Mays' apartment before dawn Sept. 1, 1985, woke Mays and his girlfriend, then Roxanne Lockard, and led the woman outside toward his truck. Mays grabbed his own gun, exchanged shots with Harris and was fatally wounded. Lockard escaped unharmed. Harris was arrested four days later.

Burkhart said she thinks of the ordeal every day. "How do you get through it? In my case, it's believing in the system," she said. "And it's very hard to believe in the system when it takes 20 years. But you have to believe the system will eventually work." She said she would wake up Thursday "knowing there won't be any more victims of David Harris." "After 20 years, you get past the hate," Mays' sister, Melissa Davis, said, describing Harris' death as "very peaceful." "My brother didn't have that," she said.

When Harris was 16, he had bragged to friends about killing a Dallas officer. But when he was questioned by police about three weeks after Wood's shooting in 1976, Harris said it was Adams — a hitchhiker he had picked up in a stolen car after Adams' own car had run out of gas — who killed Wood when the officer pulled them over. Adams had no criminal record and always said he had no part in Wood's slaying.


"Thin Blue Line" Prisoner Faces Execution

ABC News

(AP) June 30, 2004

HUNTSVILLE, Texas — A man whose false testimony sent an innocent man to death row before the 1988 documentary "The Thin Blue Line" cast doubt on the evidence faced execution Wednesday for an unrelated murder. David Ray Harris, 43, was sentenced to death for a 1985 shootout that killed Mark Mays after Harris tried to abduct the victim's girlfriend.

He could be the 10th Texas inmate executed this year. However, a federal judge had blocked the lethal injection procedure Texas uses for executions. The state filed an appeal of that ruling. "At this point, we don't know how we're going to proceed," Texas prisons spokeswoman Michelle Lyons said. Harris' lawyers filed a separate appeal with the U.S. Supreme Court.

Harris gained notoriety for implicating Randall Dale Adams, a hitchhiker he had picked up in a stolen car, in the 1976 death of Dallas police officer Robert Wood. Adams, who had no previous criminal record, served 12 years in prison and came within three days of execution in 1979 before his sentence was commuted to life in prison. Adams was released from prison in 1989, a year after the release of Errol Morris' 1988 documentary "The Thin Blue Line," which suggested he had been wrongly convicted.

Appeals seeking to keep Harris from the death chamber Wednesday challenged the reliability of testimony from psychologists at capital murder trials who advise jurors of the likelihood a convicted murderer will be a continued danger to society, one of the questions jurors must answer in deliberating a death sentence. Another appeal challenged the drugs Texas prison officials use in lethal injections. Harris' lawyers argued that the three-drug combination would "likely cause an excruciatingly painful death" and violate Harris' constitutional protections against cruel and unusual punishment.

U.S. District Judge Vanessa Gilmore in Houston issued a temporary restraining order Tuesday against the injection procedure. State lawyers appealed to the 5th U.S. Circuit Court of Appeals in New Orleans to get the order lifted, said Tom Kelley, a spokesman for the attorney general's office.

Harris had initially said he and Adams were both in the car when it was stopped by the officer. He later testified that he had lied about Adams' involvement, though he stopped short of saying he committed the murder himself. Harris has never been charged in the officer's death. "Did Randall Adams kill Robert Wood?" Adams' attorney, Randy Schaffer, asked Harris during a 1988 hearing requesting a new trial. "No, he did not," Harris replied. "Randall Adams knew nothing about this offense and was not in the car at the time." Harris turned down requests from The Associated Press for an interview.


Harris v. State, 784 S.W.2d 5 (Tex.Cr.App. 1989) (Direct Appeal).

Defendant was convicted in the Criminal District Court, Jefferson County, Larry Gist, J., of capital murder, and he appealed. The Court of Criminal Appeals, Miller, J., held that: (1) defendant was not entitled to jury charge on voluntary manslaughter; (2) evidence was sufficient to support finding that defendant's conduct in killing victim was unreasonable in response to provocation by victim; (3) prosecutor's statements during closing argument were not improper; and (4) denying defendant's motions to challenge various prospective jurors for cause was not abuse of discretion. Affirmed. Clinton, J., joined in judgment only. Teague, J., dissented.

MILLER, Judge.

Appellant was convicted of capital murder. V.T.C.A. Penal Code § 19.03(a)(2). After the jury returned affirmative findings to the three special issues submitted pursuant to Art. 37.071, V.A.C.C.P, the trial court sentenced appellant to death. On direct appeal to this Court, appellant raises nineteen points of error. We affirm appellant's conviction. Appellant does not challenge the sufficiency of the evidence to support his conviction, but a detailed recitation of the facts is necessary to the disposition of several points of error. Appellant was charged with intentionally causing the death of Mark Mays by shooting him with a firearm while in the course of committing or attempting to commit the offense of kidnapping of Roxanne Lockard.

Lockard testified she was dating the deceased, who was separated from his wife, at the time of the offense. Lockard lived in Austin but was visiting the deceased in Beaumont. She arrived in Beaumont on Friday night, August 30, 1985.

The following day, after the deceased got home from work, Lockard and the deceased sat at the pool, drank champagne, and celebrated Lockard's purchase of a new car. That evening the two went to dinner, and Lockard testified the deceased had one or two drinks of Crown Royal bourbon at dinner. They arrived back at the deceased's apartment sometime after midnight and went to bed.

Lockard testified she was awakened at about 2:30 a.m. on September 1, 1985, by a light shining in her eyes. She realized the light was from a flashlight and batted it away. The person holding the light, who was later identified by Lockard as appellant, told her he had a gun.

At this point, appellant told the deceased to get out of bed and lock himself in the hallway bathroom, which he did. Appellant then directed Lockard to get out of bed and put on some clothes. He instructed her to enter his truck which was parked behind Lockard's car outside the back of the deceased's apartment. Lockard testified appellant looked directly into her face when they got in the truck.

Lockard next noticed the deceased had come out of the apartment and was standing in front of appellant's truck. She saw the deceased standing near the rear of her car with a gun in his hands. Lockard heard gunfire but could not determine who fired the first shot. She got out of the truck and did not see appellant, but she did notice the deceased behind her car, partially bent over like "he was throwing up." Realizing Mays, the deceased, had been shot, Lockard ran inside the apartment complex to find someone to call the police and an ambulance.

The Beaumont Police Department found the deceased lying in a pool of blood behind his apartment with his gun underneath him. An autopsy revealed the deceased died from multiple gunshot wounds, two of which were fatal. A trace metal test came back positive for both of the deceased's hands, and there was evidence the deceased shot his gun at least four times.

The police also discovered five spent nine millimeter cartridges on both sides of Lockard's car near the rear of the vehicle and a bullet hole in the fence surrounding the deceased's apartment. The back door of the apartment had been pried open with a screwdriver which was found in the street behind Lockard's car.

Appellant testified at guilt/innocence that the screwdriver belonged to him but he did not pry open the door with it because the door was unlocked. Appellant went to the deceased's apartment to burglarize it, and he took a .38 caliber revolver with him because he thought "it would avoid anybody from getting hurt."

Contrary to Lockard's testimony, appellant testified that the light from the hall awakened her and the deceased and that Lockard never "swatted" at the flashlight. Inside the apartment, the deceased acted "jumpy" as appellant told him to lock himself in the bathroom, and, in fact, the deceased came out of the bathroom two or three times wanting to talk with appellant, but appellant flatly refused. Fearing the deceased might attack him, appellant "used" Lockard to safely get out of the apartment.

Appellant testified that he did not recall if Lockard ever got into his truck, because as he opened the door on the driver's side he heard a loud noise and felt something hit him in the neck. He then realized the deceased had shot him and therefore ducked behind the door of his truck. According to appellant, the deceased then shot him again, hitting him in the shoulder. At this point, appellant fired back one time, ducked behind the door again, rose up and fired two more shots.

Appellant stated he then repeated this sequence. Appellant testified he thought the deceased was trying to kill him and was going to shoot him through the open doors of the truck. Appellant ran to the front of the truck where he saw the deceased on his hands and knees and shot him one last time, this time from about ten feet away. Appellant thereafter got in his truck and drove away.

The pathologist who performed the autopsy on the deceased testified Mays had gunshot wounds on both arms, his right shoulder, which wound was disabling, and his face. The deceased also had two wounds to his chest area which were fatal. A forensic pathologist testified that the stippling on the deceased's body was consistent with the muzzle of the gun being within twenty-four inches of the deceased's body, and it could have been as close as twelve inches, when one of the fatal shots was fired.

After commission of the alleged offense, appellant requested an interview with Sam Kittrell, Assistant Chief of Police in Vidor. They talked at the Vidor police station on September 5, 1985, at 4:00 a.m. According to Kittrell, appellant had wounds on his right arm and side of his neck. Appellant told Kittrell what happened in Beaumont and directed authorities to the site where he disposed of the weapon, which had been stolen from a Beaumont resident earlier the night of the alleged offense.

Appellant also spoke to officers with the Beaumont Police Department while in Vidor. Officer Patrick O'Quinn testified appellant told him he was "looking for a piece" when he entered the deceased's apartment and the deceased "acted crazy" but never threatened him. According to O'Quinn, appellant's first shot at the deceased missed, so he fired two more times, but the deceased was still moving so appellant fired once more to "finish him off."


Ex parte Harris, 825 S.W.2d 120 (Tex.Crim.App.,1991) (State Habeas).

After affirmance of capital murder conviction and death sentence, 784 S.W.2d 5, petition for writ of habeas corpus was filed. The Criminal District Court, Jefferson County, Larry Gist, J., denied petition. Petitioner appealed. The Court of Criminal Appeals held that instruction informing jury that it could consider and give effect to mitigating evidence by declining to impose death penalty was unnecessary. Relief denied. Maloney, J., issued dissenting opinion in which Clinton and Baird, JJ., joined.


376 F.3d 414

David Ray Harris, Plaintiff-Appellee,
v.
Gary L. Johnson, Executive Director, Texas Department of Criminal Justice, Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division; Neill Hodges, Warden, Huntsville Unit Huntsville, Texas; Unknown Executioners, Defendants-Appellants,

No. 04-70028

Federal Circuits, 5th Cir.

June 30, 2004

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DENNIS and CLEMENT, Circuit Judges.

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 state 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 warrant 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 "[t]here 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 acceptable 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 review, 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.

Specifically, most of the similar statutes Harris relies upon were enacted before or shortly after his conviction and sentence. See, e.g., Okla. Stat., Tit. 4, § 5-1 (enacted in 1981); Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Mass. Gen. Laws, § 140:151A (enacted in 1985); Me.Rev.Stat. Ann., Tit. 17, § 1044 (enacted in 1987); N.J.S.A. 4:22-19.3 (enacted in 1987); N.Y. Agric. & Mkts. § 374 (enacted in 1987). In addition, of the eight instances Harris cites in which Texas's lethal injection procedures have encountered some form of difficulty, seven took place in 1992 or earlier.

*****

DENNIS, Circuit Judge, dissenting:

I dissent for the reasons assigned by the district judge. In my opinion, the district court's order of June 29, 2004 convincingly addresses and refutes the arguments set forth in the panel majority opinion. Because time is of the essence I will not belabor those points, but I reserve the right to file additional reasons later.

In this case, there is a convergence of: (1) Texas's disturbing refusal to disclose any reliable information regarding the unpublished non-statutory lethal injection protocol it proposes to use in this case or to reveal whether it has any alternative protocol which it would not be prevented from using by Harris's § 1983 claim; (2) a recent significant increase in medical evidence that using ultra-short acting barbiturates such as sodium thiopental in conjunction with a neuromuscular blocking agent such as pancuronium bromide is an inhumane method of killing a living being; and, (3) the May 24, 2004 Supreme Court decision in Nelson v. Campbell, ___ U.S. ___, 124 S.Ct. 2117, 158 L.Ed.2d 924 (2004), which, for the first time, permits an inmate to bring a § 1983 challenge to an aspect or adjunct of a state's lethal injection execution procedure if the § 1983 action does not necessarily prevent the state from carrying out the execution. Also, the Court in Nelson did not address, but left open the broader question of how to treat method-of-execution claims generally.

Because of this convergence, and the reasons assigned by the district court, it appears to me that the district court did not abuse its discretion in granting Harris's request for a temporary restraining order. I would deny the state's motion to vacate the temporary restraining order and uphold the district court's order.

DENNIS, Circuit Judge, additional dissenting reasons:

Harris did not wait until the eleventh hour to file his claim. Harris has never been given a copy of the protocol by which he will die. Texas does not publish or otherwise disclose its execution protocol for security purposes. Thus, there would have been no better opportunity to obtain the protocol at an earlier date than he has now.

It is unrealistic to require Harris to be concerned with the particular secret protocol that Texas would use until he knew the relevant time period during which the protocol would be used on him. Texas asserts that it has not changed its protocol since it began using the lethal injection method. But how was Harris to know at an earlier date in this case what the secret protocol was or whether the state would change it in the future? Had he filed a § 1983 claim any earlier it likely would have been dismissed as unripe or for lack of standing.

*****

1

Although a TRO would not normally be immediately appealable,see County, Mun. Employees' Supervisors' & Foremen's Union v. Laborers' Intern. Union of N. Am., 365 F.3d 576, 578 (7th Cir.2004), we have jurisdiction over this appeal by virtue of the district court's certification of a controlling question of law for interlocutory review. Cf. 28 U.S.C. § 1292(b). We hereby GRANT leave to take this interlocutory appeal under § 1292(b). To the extent, if any, that there is still a jurisdictional issue, we treat the notice of appeal as a petition for writ of mandamus and GRANT the petition.

2

Briefly stated, the substance of Harris's complaint is that the state is acting with deliberate indifference by choosing to use only a short acting barbiturate, sodium thiopental, to numb the pain caused by a lethal dose of potassium chloride. His complaint further alleges that the second drug introduced in the execution, pancuronium bromide, is capable of negating the sedative and serves no purposes except to leave him appearing serene while suffering excruciating pain

3

Arguably, there was a one year window in which this was not the case: between September 2001, when the district court granted Harris provisional habeas relief, and November 2002, when this court vacated the district court's ruling and rendered judgment for the stateSee Harris v. Cockrell, 313 F.3d 238 (5th Cir.2002). Exclusive of that time frame, there were seventeen years in which Harris was faced with overcoming substantial obstacles in proving an infirmity in his conviction or sentence. Whatever hope Harris had for obtaining a reprieve, he had to equally face the difficult reality that the State could one day carry out his sentence.

4

Harris also maintains that the complaint was previously factually unavailable to him because he relies, in part, on a veterinary study that was released in 2001, and on a statute Texas enacted in 2003 to limit the methods by which animals can be euthanizedSee Tex. Health & Safety Code, § 821.052(a). Nevertheless, Harris's own filings demonstrate that the substance of his complaint has been factually available for the entirety of his term on death row.

Specifically, most of the similar statutes Harris relies upon were enacted before or shortly after his conviction and sentence. See, e.g., Okla. Stat., Tit. 4, § 5-1 (enacted in 1981); Fla. Stat. §§ 828.058 and 828.065 (enacted in 1984); Mass. Gen. Laws, § 140:151A (enacted in 1985); Me.Rev.Stat. Ann., Tit. 17, § 1044 (enacted in 1987); N.J.S.A. 4:22-19.3 (enacted in 1987); N.Y. Agric. & Mkts. § 374 (enacted in 1987). In addition, of the eight instances Harris cites in which Texas's lethal injection procedures have encountered some form of difficulty, seven took place in 1992 or earlier.

5

See, e.g., Cooper v. Rimmer, 358 F.3d 655, 658-59 (9th Cir.2004) (rejecting an Eighth Amendment challenge to a lethal injection protocol similar to Texas's); State v. Webb, 252 Conn. 128, 750 A.2d 448 (2000) (same); Sims v. State, 754 So.2d 657 (Fla.2000) (same).

 

 

 
 
 
 
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