UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 99-50010

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JOHN GLENN MOODY,

Petitioner,

versus

VICTOR RODRIGUEZ, Chairman of the Texas Board of Pardons and

Paroles;

LYNN F. BROWN, Board Member; BENNIE ELMORE, Board Member;

JOHN ESCOBEDO,Board Member; GERALD GARRETT, Board Member;

JUANITA GONZALEZ, Board Member; DANIEL LANG, Board Member;

MARY LEAL, Board Member; THOMAS W. MOSS, Board member;

RISSIE OWENS, Board Member; PAUL PREJEAN, Board member;

BRENDOLYN ROGERS-JOHNSON, Board Member;

TERRI SCHNORRENBERG, Board member; ALVIN A. SHAW, Board member;

CHARLES A. SHIPMAN, Board member;CYNTHIA TAUSS, Board member;

SANDIE WALKER, Board Member;

W.G. WALKER, Board Member,

Respondent.

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Appeal from the United States District Court 

for the Western District of Texas, Austin

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January 5, 1999

Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM: 

After his unsuccessful state and federal habeas

challenges and after being denied clemency by the Board of Pardons

and Paroles, Moody resorted to filing this § 1983 claim against the

Board only three hours before his scheduled execution. The
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district court granted the defendants’ motion for summary judgment,

finding that “the Texas clemency procedure provides the minimal

procedural safeguards required by federal law.” Moody v.

Rodriguez, Civ. No. A-99-CA-006 JN, at 2 (W.D. Tex. Jan. 5, 1999).

As this court recently held:

Federal courts lack jurisdiction to stay

executions under § 1983. See 28 U.S.C. §§

2283, 2251. Prisoner challenges to the result

of a single allegedly defective clemency

proceeding must be pursued by writ of habeas

corpus, not by suits under § 1983. See,

Preiser v. Rodriguez, 411 U.S. 475 (1973); see

also Buchanan v. Gilmore, 139 F.2d 982, 984

(4th Cir. 1988); Cf. Cook v. Texas Board of

Pardons and Paroles, 37 F.3d 166, 168 (5th

Cir. 1994).

See Faulder v. Texas Board of Pardons and Paroles, No. 98-51176, at

1-2 (5th Cir. Dec. 10, 1998), execution stayed pending cert.

decision, No. 98-7001, 1998 WL 852602, 67 USLW 3390 (U.S.Dec. 10,

1998).

Based on Faulder, we lack jurisdiction to consider

Moody’s § 1983 action, the only purpose of which is to delay his

imminent execution.

If our jurisdictional decision is incorrect, however, we

have also considered the arguments advanced against the

constitutionality of Texas’s clemency procedures and, for the

reasons stated by the district court, reject them. See, e.g., Ohio

Adult Parole Auth. v. Woodard, 118 S.Ct. 1244 (1998). This

decision leaves no basis to grant a stay of execution pending

appeal.
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Accordingly, the motion of the Appellant John Glenn Moody

to stay his execution is DENIED, and the district court’s dismissal

with prejudice of the Appellant’s claims is AFFIRMED.

Other Matters:

Within 14 days hereof, counsel for Appellant shall file

a statement showing cause, pursuant to Fifth Cir. Loc. Rule 8.10,

why he delayed filing this § 1983 case and, more significantly, why

he filed no clemency petition on behalf of his client until

December 27, 1998, when Texas rules and federal procedure mandated

no such delay in filing. See 37 Tex. Admin. Code § 143.43 (West

1998).