FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

December 13, 2006

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 06-16408

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D. C. Docket No. 06-01083-CV-HLA-MCR

ANGEL NIEVES DIAZ, 

Plaintiff-Appellant, 

versus 

JAMES MCDONOUGH

Secretary, Florida Department of Corrections, and

CHARLES J. CRIST, JR., 

Florida Attorney General, 

Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(December 13, 2006)

Before TJOFLAT, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
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Petitioner Angel Nieves Diaz, a Florida prisoner under sentence of death,

moves this Court for a stay of execution and appeals the denial by the district court

of his request for a preliminary injunction. Diaz, who is scheduled to be executed

by lethal injection on December 13, 2006, filed pro se a complaint under section

1983 in the Middle District of Florida and alleged that the lethal injection protocol

used by the Florida Department of Corrections will cause him unnecessary pain

and subject him to cruel and unusual punishment in violation of the Eighth and

Fourteenth Amendments to the United States Constitution. The district court

denied Diaz’s request for a preliminary injunction. We deny his petition. 

The background of the underlying case that led to Diaz’s death sentence is

described in the decision of the Florida Supreme Court that affirmed Diaz’s

conviction and death sentence on direct appeal. Diaz v. State, 513 So. 2d 1045,

1046 (Fla. 1987). In the succeeding years, Diaz sought in various unsuccessful

appeals and collateral proceedings, in both state and federal court, to have his

conviction and death sentence overturned. On December 11, 2006, less than three

days before his scheduled execution, Diaz filed pro se his complaint under section

1983 to challenge the three-drug lethal injection method used by Florida to carry

out executions on the ground that it constituted cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments to the Constitution of the
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United States. Diaz requested “a preliminary temporary injunction prohibiting his

execution, a permanent injunction barring the Defendants from executing him

under the current protocol, an evidentiary hearing and the appointment of

counsel.” The district court denied the motion for a preliminary injunction

because the district court concluded that Diaz failed to establish a “significant

possibility of success on the merits” and based on the strong equitable

presumption against granting a last minute stay. 

Diaz now moves this Court for a stay of execution. Although Diaz

describes his motion as one for a stay of execution, it is apparent that he petitions

for an order temporarily enjoining the State from carrying out his execution until

his appeal of the denial of his motion for a preliminary injunction can be decided. 

“[A] stay of execution is an equitable remedy. It is not available as a matter of

right, and equity must be sensitive to the State’s strong interest in enforcing its

criminal judgments.” Hill v. McDonough, 126 S. Ct. 2096, 2104 (2006). “A court

considering a stay must also apply ‘a strong equitable presumption against the

grant of a stay where a claim could have been brought at such a time as to allow

consideration of the merits without requiring entry of a stay.’” Hill v.

McDonough, 126 S. Ct. at 2104 (citation omitted). “[W]e consider [Diaz’s]

motion for injunctive relief . . . with the clear indication from the Supreme Court .
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. . that we may deny [Diaz’s] request if the equities demand that result.” Hill v.

McDonough, 464 F.3d 1256, 1258 (11th Cir. 2006). 

Because Diaz requests a preliminary injunction solely for the purpose of

allowing time to pursue his appeal, the injunction sought is “one grounded in the

authority of the federal courts under the All Writs Act, 28 U.S.C. § 1651(a).” Id.

The All Writs Act states, “The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. §

1651(a). To obtain an injunction under the All Writs Act, the injunction “must

simply point to some ongoing proceeding, or some past order or judgment, the

integrity of which is being threatened by someone else’s action or behavior.” Klay

v. United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004). Diaz has filed

a notice of appeal of the denial of his motion for a preliminary injunction, and we

have jurisdiction over that appeal. See 28 U.S.C. § 1292(a)(1). We could grant an

injunction to protect our jurisdiction to hear Diaz’s appeal. 

Because we find that the equities do not support Diaz’s request, we decline

to grant an injunction. Diaz filed his section 1983 complaint and request for

injunctive relief less than three days before his scheduled execution and shortly

after the Florida Supreme Court denied his application for post-conviction relief
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on, among other grounds, his challenge to the Florida lethal injection protocol. 

See Diaz v. State, -- So. 2d --, 2006 WL 3530471 (Fla. Dec. 8, 2006). Diaz was

either aware or should have been aware of the grounds for his section 1983 claim

much earlier than the date on which he filed his complaint. In fact, Diaz knew or

should have known of the grounds for his claim long before he filed his complaint

because the Florida Supreme Court considered a challenge to the Florida lethal

injection protocols on similar grounds as early as 2000. See Sims v. State, 754 So.

2d 657, 666-68 (Fla.2000). In the light of this history, Diaz cannot claim that he

could not have filed his federal complaint at an earlier date that would have

allowed the courts to address the complaint on the merits without the necessity of

a stay. 

Diaz’s motion for a stay of execution is DENIED.