REVISED APRIL 24, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20222

In re: ROBERT LYNN PRUETT, 

 Movant

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CONSOLIDATED WITH NO. 15-70011

ROBERT LYNN PRUETT,

Plaintiff – Appellant

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent – Appellee

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:15-CV-992

Before STEWART, Chief Judge, and JOLLY and SMITH, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

April 23, 2015

Lyle W. Cayce

Clerk

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No. 15-20222

PER CURIAM:*

Robert Lynn Pruett was sentenced to death for capital murder in Texas 

and is scheduled to be executed on April 28, 2015. On April 17, 2015, he filed 

in the district court a complaint under 42 U.S.C. § 1983, requesting a stay of 

execution and a declaratory judgment that his execution would violate the 

Eighth and Fourteenth Amendments because the State’s negligent handling of 

physical evidence made it impossible for him to prove his innocence. The 

district court held that it lacked jurisdiction because Pruett’s complaint is an 

unauthorized successive habeas petition. The district court transferred the 

complaint to this court. The transferred complaint is on our docket as No. 15-

20222.

On April 21, Pruett filed a Notice of Appeal from the district court’s 

transfer order. That appeal is our case No. 15-70011. Pruett has not moved

for authorization to file a successive habeas petition to assert the claim he 

raises in the § 1983 complaint. Instead, he contends that authorization is 

unnecessary because the district court erred in concluding that his complaint 

is a successive habeas petition and transferring the complaint to this Court. 

He also requests a certificate of appealability (COA). We agree with the district 

court that the complaint is indeed a successive habeas petition. We therefore 

AFFIRM the order of transfer, DISMISS the unauthorized successive habeas 

petition, DENY the motion for stay of execution, and DISMISS the request for 

a COA. We also direct the clerk of this Court to notify Pruett that, should he 

wish to file a successive petition for writ of habeas corpus, a motion for 

authorization must be filed with this Court pursuant to 28 U.S.C. § 2244(b)(3).

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

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I.

In 2002, Pruett was sentenced to death for the murder of Texas 

Department of Criminal Justice Correctional Officer Daniel Nagle, which he 

committed while serving a life sentence for a prior murder. The State argued 

that Pruett’s motive for the murder was that he was upset because Officer 

Nagle had written a disciplinary report for Pruett’s having food in an area of 

the prison where food was not permitted. Torn pieces of the disciplinary report 

were found near Officer Nagle’s body after the murder. At trial, Pruett 

testified that Officer Nagle tore up the report in his presence and that he 

(Pruett) then walked away, leaving Officer Nagle alive and well. Blood found 

on the disciplinary report was tested for DNA and found to have come from 

Officer Nagle. No other DNA profiles were developed at that time and there 

was no physical evidence connecting Pruett to the murder.

The Texas Court of Criminal Appeals (TCCA) affirmed Pruett’s 

conviction and sentence on direct appeal. Pruett v. State, No. 74,370, 2004 WL 

3093232 (Tex. Crim. App. 2004). The TCCA denied Pruett’s first state habeas 

application in 2005. Ex parte Pruett, 207 S.W.3d 767 (Tex. Crim. App. Oct. 19, 

2005).

In 2010, the district court denied Pruett’s first federal habeas petition 

but granted a certificate of appealability for two issues. Pruett v. Thaler, No. 

C-06-CA-465-H (S.D. Tex., Aug. 12, 2010). This Court affirmed the district 

court’s denial of relief and denied Pruett’s request to expand the grant of a 

COA. Pruett v. Thaler, 455 F. App’x 478, 487, 490-91 (5th Cir. 2011), cert. 

denied, 133 S. Ct. 141 (2012).

On May 9, 2013, Pruett filed in state court a motion for DNA testing in 

which he alleged that techniques not available at the time of trial were 

available to develop a DNA profile from epithelial cells on the disciplinary 

report. The State sent the evidence to the University of North Texas Center 

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for Human Identification (UNTCHI) for collection and analysis of DNA. On 

July 9, 2013, UNTCHI reported that its testing had been inconclusive. At 

Pruett’s request, the trial court appointed an expert, whose review revealed 

that the 12 allele was present in an amount above the analytical threshold at 

the D13 locus. Because the DNA profiles of both Nagle and Pruett contain the 

12 allele at the D13 locus, neither of them could be eliminated as being a 

possible source of the DNA on the disciplinary report. Because the 12 allele is 

present at the D13 locus in the DNA profiles of approximately 20% of the Asian 

and Hispanic populations, 30% of the Caucasian population, and 40% of the 

African American population, approximately one-third of the population at the 

prison where Nagle was murdered could not be excluded as contributing the 

DNA present on the torn disciplinary report.

The state trial court concluded that the DNA evidence was not 

exculpatory, and the TCCA affirmed. Pruett v. State, No. AP-77,037, 2014 WL 

5422573 (Tex. Crim. App. Oct. 22, 2014). The Supreme Court denied Pruett’s 

petition for a writ of certiorari. Pruett v. Texas, No. 14-8097, 2015 WL 302598 

(U.S. Mar. 30, 2015).

II.

In his complaint filed pursuant to § 1983, Pruett alleged that the DNA 

testing conducted in 2013 was incapable of developing a complete DNA profile 

because the State negligently failed properly to preserve the pieces of the 

disciplinary report. He sought a declaratory judgment that it would violate 

the Eighth and Fourteenth Amendments if the State were allowed to execute 

him when its failure to properly preserve the evidence prevented him from 

establishing his actual innocence. The district court held that Pruett’s claim 

sounded in habeas corpus and not civil rights, because he sought an order 

preventing the State from carrying out his sentence.

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We have appellate jurisdiction to hear Pruett’s appeal from the district 

court’s transfer order. See Sepulvado v. Cain, 707 F.3d 550, 552 (5th Cir. 2013).

When “a judgment in favor of the plaintiff would necessarily imply the 

invalidity of his conviction or sentence,” § 1983 is not an available remedy. 

Heck v. Humphrey, 512 U.S. 477, 487 (1994). “But if . . . the plaintiff’s action, 

even if successful, will not demonstrate the invalidity of [his conviction or 

sentence], the [§ 1983] action should be allowed to proceed. . . .” Id. In Skinner 

v. Switzer, 131 S. Ct. 1289 (2011), the Supreme Court held that a judgment in 

favor of the plaintiff in his § 1983 suit for an order requiring DNA testing 

“would not ‘necessarily imply’ the invalidity of his conviction” because the 

results might prove exculpatory, inconclusive, or might further incriminate the 

prisoner. Id. at 1298.

In concluding that it lacked jurisdiction, the district court held that 

Pruett’s complaint was not properly brought under § 1983 because a judgment 

granting the relief he sought would necessarily imply the invalidity of his 

sentence. Relying on Skinner, Pruett argues that his complaint is properly 

brought under § 1983 because he challenges neither his conviction nor 

sentence, but only the State’s authority to carry out an execution at this time. 

He asserts that a ruling in his favor would not invalidate his sentence, but 

would only be a finding that the Eighth Amendment will not allow his 

execution to proceed at this time because the State’s failure to properly 

preserve evidence is presently preventing him from challenging his conviction. 

He maintains that when the DNA technology develops in such a manner as to 

permit him to demonstrate his actual innocence notwithstanding the State’s 

negligent handling of the physical evidence, he will, at that time, be permitted 

to attack the legality of his conviction in a habeas application. Pruett does not 

provide any evidence that such technology is likely to develop or, if so, when. 

In fact, he admits that it is unknown whether it will ever be possible to 

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generate a DNA profile from the torn pieces of the disciplinary report. Thus, 

he is essentially asking for an indefinite stay of execution based on nothing but 

speculation.

Unlike Skinner, who sought DNA testing, Pruett has already had DNA 

testing performed using the most current technology presently available. He 

seeks “[a] declaratory judgment that [his] execution would be in violation of 

the Eighth and Fourteenth Amendments because the State’s negligently 

handling the evidence made it impossible for Pruett to prove his innocence.” 

We agree with the district court that this is a direct challenge to the validity of 

his sentence and, therefore, cannot be maintained under § 1983. Because 

Pruett has already unsuccessfully challenged his conviction and sentence in an 

earlier federal habeas proceeding, his current complaint is successive. 

Accordingly, the district court correctly determined that it did not have 

jurisdiction to consider it in the light of the fact that Pruett did not obtain our 

prior authorization pursuant to § 2244(b)(3).

Pruett has not filed in this Court a motion for authorization to file a 

successive habeas petition to assert the claim he raised in the transferred 

complaint. In such situations, we have directed the clerk’s office to notify the 

petitioner that “(1) a motion pursuant to § 2244(b)(3) must be filed with the 

court of appeals within a specified time from the date of the clerk’s notice and 

(2) failure to do so timely will result in the entry of an order denying 

authorization.” Sepulvado, 707 F.3d at 556 (quoting In re Epps, 127 F.3d 364, 

365 (5th Cir. 1997)).

III.

For the foregoing reasons, the order of transfer is AFFIRMED. The 

petition for writ of habeas corpus is DISMISSED for want of jurisdiction. 

Because we lack jurisdiction to consider the successive habeas petition, there 

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is no basis for a stay, and the motion for stay of execution is DENIED. The 

request for a COA is DISMISSED. See Sepulvado, 707 F.3d at 557. 

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