Darick Walker v. Gene Johnson

Filing 920090513

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-24

DARICK DEMORRIS WALKER, Plaintiff ­ Appellant, v. GENE M. JOHNSON, Director, Commonwealth of Virginia Department of Corrections, Richmond, Virginia; GEORGE M. HINKLE, Warden, Greensville Correctional Center, Jarratt, Virginia; LORETTA K. KELLY, Warden, Sussex I State Prison, Waverly, Virginia, Defendants ­ Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:05-cv-00934-CMH-TR)

Submitted:

February 10, 2009

Decided:

May 13, 2009

Before WILLIAMS, Chief Judge, and TRAXLER and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote a separate concurring opinion.

Danielle Spinelli, Eric R. Columbus, Will L. Crossley, Jr., WILMER CUTLER PICKERING HALE & DORR, LLP, Washington, D.C., for Appellant. Robert F. McDonnell, Attorney General, Richard C. Vorhis, Senior Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: On August 10, 2005, Darick Demorris Walker, a death row inmate, filed this 42 U.S.C.A. § 1983 (West 2003) action in the Eastern District of Virginia, challenging the constitutionality of the lethal injection protocol that the State of Virginia will use to execute him. granted the On September 11, 2006, the district court motion for summary judgment and

Defendants'

dismissed the case.

We held Walker's appeal of the district

court's ruling in abeyance pending resolution of the district court Kelly, proceedings 195 F. on remand 169 from our decision a in case Walker v.

App'x

(4th

Cir.

2006),

involving

Walker's petition for a writ of habeas corpus. While we held this appeal in abeyance, the United States Supreme Court decided Baze v. Rees, 128 S. Ct. 1520 (2008), rejecting a challenge to the State of Kentucky's lethal

injection protocol, and in Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008), we upheld Virginia's lethal injection protocol--the same protocol at issue in this case--as constitutional within the guidelines set forth in Baze. (granting concluding summary that judgment in See Emmett, 532 F.3d at 308 favor of for the defendants injection and is

"Virginia's

protocol

lethal

substantially similar to that approved by the Supreme Court in Kentucky").

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Both parties agree that we are bound by our decision in Emmett, * and we therefore affirm the district court's grant of summary judgment in favor of the Defendants. oral argument because in the the facts and legal before We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

Indeed, Walker admits that he submitted his appellate brief only to preserve for further appellate review his argument that Emmett v. Johnson, 532 F.3d 291 (4th Cir. 2008), was wrongly decided.

*

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GREGORY, Circuit Judge, concurring: For Johnson, the 532 reasons F.3d I set forth in (4th the my dissent 2008) in Emmett v. J., in

291, 308-12 that

Cir. Emmett

(Gregory, erred

dissenting),

believe

majority

summarily concluding that the Virginia legal injection protocol is substantially upheld similar in Baze to v. the Rees, Kentucky 128 S. legal Ct. injection (2008).

protocol

1520

However, I am constrained by our precedent in Emmett, and thus I must concur in the judgment in this case.

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