Case: 25-70009 Document: 31-1 Page: 1 Date Filed: 05/18/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
May 18, 2025
No. 25-70009
Lyle W. Cayce
____________ Clerk
Matthew Lee Johnson,
Plaintiff—Appellant,
versus
Bryan Collier, Executive Director, Texas Department of Criminal
Justice; Eric Guerrero, Director, Texas Department of Criminal Justice,
Correctional Institutions Division; Kelly Strong, Warden, Texas
Department of Criminal Justice, Huntsville Unit, Huntsville, Texas,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:25-CV-2066
______________________________
Before Elrod, Chief Judge, and Oldham and Wilson, Circuit Judges.
Per Curiam:
Nearly 13 years ago, Matthew Johnson robbed a convenience store
and, as he was leaving the store, used a lighter to set the cashier on fire. She
died five days later as a result of her severe burns. Johnson was subsequently
convicted of murder and given a death sentence in a Texas district court in
2013. His execution date is set for Tuesday, May 20, 2025. He has known
about his scheduled execution date, and the alleged procedural errors in the
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No. 25-70009
setting of that date, for over three months. On Friday, May 16, he filed an
appeal of a denial of a stay and a request for a stay to halt his execution.
Because, as the federal district court correctly determined, he cannot prevail
under the Nken factors to establish grounds for a stay, we AFFIRM. We
also DENY Johnson’s request for a stay by this court.
I
As we previously recounted in Johnson’s federal habeas case, “[t]he
facts underlying Johnson’s conviction are not in dispute”:
In May 2012, Johnson entered a convenience store and poured
a bottle of lighter fluid over the head of Nancy Harris, a 76-
year-old store clerk. He then demanded money from Harris.
As Harris attempted to open the cash register, Johnson stole
two cigarette lighters, two packages of cigarettes, and a ring
from Harris’s finger.
Once Harris opened the cash register, Johnson took the money
and then set Harris on fire. As Harris frantically attempted to
extinguish herself, video recordings showed that Johnson
“calmly” walked out of the store. Police officers arrived at the
convenience store soon after and extinguished the flame.
Aided by descriptions given by Harris and neighborhood
residents, the police quickly apprehended Johnson. Because of
the incident, Harris suffered second-to-fourth degree burns
over 40% of her body. She died five days later.
Johnson v. Lumpkin, 74 F.4th 334, 337 (5th Cir.) (citation omitted), reh’g en
banc denied,
76 F.4th 1037 (5th Cir. 2023), cert. denied,
144 S. Ct. 829 (2024).
A jury found Johnson guilty of capital murder. Pursuant to the jury’s
answers to the special issues submitted at the sentencing proceeding, the
state trial court sentenced Johnson to death. See Tex. Code Crim. Proc. Ann.
art. 37.071. On direct appeal, the Texas Court of Criminal Appeals affirmed
his conviction and sentence, Johnson v. State, No. AP-77,030, 2015 WL
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7354609, at *1 (Tex. Crim. App. Nov. 18, 2015) (not designated for
publication), and the United States Supreme Court denied his petition for
certiorari, 579 U.S. 931 (2016).
Johnson also challenged his conviction and sentence in various habeas
proceedings. In Johnson’s state habeas proceeding, the trial court held a live
evidentiary hearing, entered findings of fact and conclusions of law, and
recommended that the Court of Criminal Appeals deny relief. See Ex parte
Johnson, No. WR-86,571-01, 2019 WL 4317046, at *2 (Tex. Crim. App. Sept.
11, 2019) (not designated for publication). The Court of Criminal Appeals
conducted an independent review of the record, adopted the trial court’s
findings and conclusions with one exception, and denied relief. Id. at *3.
In Johnson’s federal habeas proceeding, the district court denied relief
and a certificate of appealability. Johnson v. Lumpkin, 593 F. Supp. 3d 468,
477 (N.D. Tex. 2022). The district court also denied Johnson’s motion for
recusal.
Id. We likewise denied Johnson’s application for a certificate of
appealability, and we affirmed the district court’s denial of the recusal
motion. Johnson,
74 F.4th at 337. Johnson then filed a petition for rehearing
en banc. See Johnson,
76 F.4th at 1039. “Because no member of the panel or
judge in regular active service requested that the court be polled on rehearing
en banc,” the petition was denied.
Id. (first citing Fed. R. App. P. 35; and
then citing 5th Cir. R. 35). Johnson petitioned for certiorari again, and the
Supreme Court again denied certiorari on February 20, 2024. Johnson, 144
S. Ct. at 829.
On October 2, 2024, the Texas attorney general’s office sent a letter
to the state trial court informing the court that “[s]tate and federal litigation
of this case is now complete” and the court could thus schedule an execution
date pursuant to Article 43.141 of the Texas Code of Criminal Procedure. See
Tex. Code Crim. Proc. Ann. art. 43.141. The office provided dates that were
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available for Johnson’s execution, and it offered to represent the state pro tem
if the district attorney chose not to participate. The attorney general’s office
has sent similar letters to Dallas County district courts concerning other
death-row inmates. Johnson responded the next day, asserting that the
attorney general’s office “lack[ed] authority to suggest this Court schedule
Mr. Johnson’s execution or represent the State in any subsequent state-court
litigation” and asking the court to “take no action.”
Subsequently, on October 30, the trial court reached out to Johnson’s
counsel and the district attorney’s office, as well as the attorney general’s
office. The court informed counsel that it had “review[ed] both submissions
and consider[ed] the issues raised” and concluded that the court had sole
authority under Article 43.141 to set the execution date once appellate
remedies were exhausted. Accordingly, the court stated that it was
“prepared to move forward in selecting a date for execution” and sought
input from the parties on the execution date. The attorney general’s office
responded that its proposed dates remained available. Johnson’s counsel also
responded. Johnson’s counsel agreed that “the authority for setting an
execution date rests solely with the convicting court” but maintained that the
attorney general’s office could not represent the state’s interests by
requesting an execution date. Although he requested that the court not set
an execution date at that point, counsel stated that Johnson preferred May
20, 2025, over the other proposed dates. The attorney general’s office also
followed up later to inform the court that one of the proposed dates was no
longer available. The district attorney’s office did not respond at all. On
January 20, 2025, the trial court set Johnson’s execution date for May 20,
2025.
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On April 14, Johnson filed a motion for leave to file a petition for writ
of mandamus in the Texas Court of Criminal Appeals. 1 In re Matthew Lee
Johnson, No. WR-86,571-02 (Tex. Crim. App. dismissed Apr. 28, 2025).
That motion and proposed petition asserted that the trial court’s method of
setting the execution date exceeded its authority under Article 43.141 of the
Texas Code of Criminal Procedure and violated Johnson’s due process and
equal protection rights. The Court of Criminal Appeals denied the motion
without a written order on April 28.
Finally, on May 7, about two weeks before his scheduled execution
date, Johnson filed the instant suit in federal district court. He filed a 42
U.S.C. § 1983 complaint against three officials in the Texas Department of
Criminal Justice, contending that the process by which his execution date was
set violated his Fourteenth Amendment rights. In particular, he asserted
that: (1) the state trial court’s failure to follow the proper procedures for
scheduling his execution date violated his right to due process; and (2) the
involvement of the attorney general’s office instead of the district attorney
violated his right to equal protection. He asked the district court to “[f]ind
that the execution order violates Johnson[’]s rights under the Fourteenth
Amendment’s Due Process and Equal Protection Clauses” and “[s]tay his
execution currently set for May 20, 2025.” Johnson also separately moved
for a stay of execution pending the resolution of his lawsuit.
The district court denied the motion for a stay and, because the suit
could not proceed without a stay, dismissed the case with prejudice. The
district court analyzed the factors for a stay enumerated in Nken v. Holder,
556 U.S. 418, 434 (2009), and concluded that three of the four factors
_____________________
1
Johnson asserts that this delay was because his counsel requested e-mails related
to the setting of his execution date on March 10 and did not receive some of those e-mails
until April 7.
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weighed against a stay. Most importantly, the district court held that Johnson
had not shown a substantial likelihood of success on either of his
constitutional claims. See id. This appeal followed.
II
We review a district court’s denial of a stay of execution for abuse of
discretion. United States v. Vialva, 976 F.3d 458, 460 (5th Cir. 2020). Courts
consider four factors when evaluating whether to grant a stay: “(1) whether
the stay applicant has made a strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be irreparably injured absent a stay;
(3) whether issuance of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public interest lies.” Nken,
556 U.S. at 434 (quotation omitted); Vialva, 976 F.3d at 460–61.
The first factor weighs heavily against Johnson: he is highly unlikely
to succeed on the merits. We start with Johnson’s due process argument.
“To plead a violation of his due process rights, [Johnson] must show that
[the defendants] deprived him of a constitutional right while acting under
color of state law.” Reed v. Goertz, --- F.4th ----, No. 19-70022, 2025 WL
1261412, at *4 (5th Cir. May 1, 2025). “No State shall . . . deprive any person
of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1. However, “process itself is not a protectable end.” Reed,
2025 WL
1261412, at *4 (citing Dist. Atty’s Off. for Third Jud. Dist. v. Osborne,
557 U.S.
52, 67 (2009)). “Rather, for the Due Process Clause to attach and its
protections to obtain, a plaintiff must identify a protected ‘liberty interest.’”
Id. (quoting Osborne,
557 U.S. at 67). As we explain below, Johnson fails to
do so.
Johnson posits that his due process rights have been violated because
the state attorney general’s office alerted the trial court that all habeas
proceedings had been exhausted and notified it of available execution dates.
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Importantly, he does not contend that he lacked adequate notice of his
scheduled execution date. Cf. Tex. Code Crim. Proc. Ann. art. 43.141(b-1)
(requiring a copy of an order setting an execution date to be sent to the
condemned person’s counsel). Indeed, his own allegations reveal that he
knew that the court was planning to set his execution date for about three
months before the date was set. He also knew about the alleged interference
by the attorney general’s office and the possibility that the state trial court
would act upon that suggestion another month before that, as his counsel
“request[ed] the Court refrain from heeding [the attorney general’s office’s]
suggestion and refrain from entering any order scheduling Johnson’s
execution” on October 3. And Johnson was represented during that time.
As a federal court, we do not review whether state courts have
followed state procedural rules unless their failure to do so presents a federal
constitutional issue. Cf. Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016)
(“Plaintiffs’ claims seeking enforcement of [a state statute] may only proceed
in federal court if a provision of federal law or the United States Constitution
creates a right to the enforcement of [the statute].”); Pruett v. Choate,
711 F.
App’x 203, 206 n.10 (5th Cir. 2017) (“Unless Pruett’s due-process rights
were violated, he has no avenue to relief except through a command for Texas
courts properly to enforce Texas law. But . . . federal courts lack a ‘general
power to issue writs of mandamus to direct state courts and their judicial
officers in the performance of their duties where mandamus is the only relief
sought.’” (quotation omitted)). Even if the state trial court’s actions did not
conform to Article 43.141, “a mere error of state law is not a denial of due
process.” See Jordan,
823 F.3d at 811 (quoting Swarthout v. Cooke,
562 U.S.
216, 222 (2011)). The same reasoning applies to Johnson’s contentions about
the roles of the district attorney and attorney general pursuant to the Texas
Constitution’s separation of powers. Johnson’s argument that the state trial
court’s execution-setting procedure was an unlawful deviation from Texas
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law was properly brought in Texas courts. See id. at 812. He cannot now
come to the federal courts for the relief that the Texas Court of Criminal
Appeals denied him.
Even assuming arguendo that we could review Johnson’s claim,
Johnson cannot show that the state trial court actually failed to follow Article
43.141. Simply put, nothing in that statute requires the process that Johnson
insists upon. Article 43.141 sets out the procedures applicable to a convicting
court’s scheduling of an execution date. See Tex. Code Crim. Proc. Ann. art.
43.141. If a habeas petition is filed, “the convicting court may not set an
execution date before” that proceeding is complete. Id. art. 43.141(a).
However, if no habeas petition is filed, “the convicting court may set an
execution date.” Id. art. 43.141(b). The remainder of the article sets out
requirements for notice, the timing of the execution date, and modifying or
withdrawing an order setting an execution date in limited circumstances;
none of those provisions are at issue here. See id. art. 43.141(b-1)–(e). As the
defendants contend and the district court held, nothing in Article 43.141
requires that the district attorney—or any attorney for the state—move for
the scheduling of the execution date. Indeed, Johnson concedes that the
convicting court may schedule an execution date sua sponte. Further, nothing
in the statute prevents the attorney general’s office from providing the court
information or bars the convicting court from considering that information.
Accordingly, Johnson has not shown that the trial court violated the
applicable procedures in his case.
Most importantly, nothing in Johnson’s complaint shows that there
was a federal due process violation. As the district court aptly noted,
“Johnson does not precisely define the due process rights which he believes
govern execution setting.” That is a generous description. Johnson
expounds upon due process only in the vaguest terms. However, “process
itself is not a protectable end.” Reed, 2025 WL 1261412, at *4. And Johnson
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fails to point to a liberty interest that is to be protected. See id. He cannot
identify any federal or state law that clearly creates a right to only be executed
if the district attorney seeks the setting of an execution date. We will not
truffle hunt for due process violations when the briefing has not unearthed
any. See Outley v. Luke & Assocs., Inc.,
840 F.3d 212, 217 n.8 (5th Cir. 2016)
(“Judges are not like pigs, hunting for truffles buried in briefs.” (quotation
omitted)).
Johnson’s equal protection claim is likewise unavailing. The Equal
Protection Clause is “essentially a direction that all persons similarly situated
should be treated alike.” Wood v. Collier, 836 F.3d 534, 538 (5th Cir. 2016)
(quoting City of Cleburne v. Cleburne Living Ctr.,
473 U.S. 432, 439 (1985)).
Johnson maintains that if he is executed on the date scheduled by the trial
court, he will have been treated differently from other death-row inmates in
Dallas County because only he “will have been executed pursuant to action
by the Attorney General and not any local official.” His complaint appears
to rely on a “class of one” theory. Under such a theory, “the plaintiff must
show that (1) he or she was intentionally treated differently from others
similarly situated and (2) there was no rational basis for the difference in
treatment.”
Id. (quoting Lindquist v. City of Pasadena,
669 F.3d 225, 233 (5th
Cir. 2012)). Here, the fact that the attorney general’s office has sent similar
letters regarding other death-row inmates in Dallas County undermines
Johnson’s argument that he has been treated differently. We also agree with
the district court that Johnson has not met the second prong of the test. As
the defendants assert, it was not irrational for the attorney general’s office to
provide information about the status of Johnson’s habeas challenges and
available execution dates to the state trial court. And even if, as Johnson
complains, the attorney general’s office did so in order to prompt the trial
court to schedule an execution date, the state has a legitimate interest in the
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timely enforcement of a death sentence, see Bucklew v. Precythe, 587 U.S. 119,
149 (2019), and the letter was rationally related to that interest.
In short, Johnson’s constitutional claims cannot succeed on the
merits. His due process claim fails on at least three grounds: it asks for relief
that the federal courts do not provide; it is unsupported by the text of the
statute; and it fails to identify a protected liberty interest. His equal
protection claim is similarly flawed. Accordingly, he has not shown a
likelihood of success on the merits, and the first Nken factor weighs heavily
against him.
Johnson also has not shown that any of the other three Nken factors
warrant a stay. See Nken, 556 U.S. at 434. Of course, “the death penalty
itself is irreversible.” Vialva, 976 F.3d at 462. However, Johnson’s
complaint expressly states that he “is not asking for relief from his death
sentence.” He “is not challenging his death sentence, but only the preexecution procedures for carrying it out.” Id. As a result, he would face the
same irreparable harm even if a stay were granted. So the irreparable-harm
factor is neutral in this case. Further, “there comes a time when the legal
issues ‘have been sufficiently litigated and re-litigated so that the law must be
allowed to run its course.’” Id. (quoting O’Bryan v. Estelle,
691 F.2d 706,
708 (5th Cir. 1982)). The third factor weighs against Johnson because
“[b]oth the State and the victims of crime have an important interest in the
timely enforcement of a sentence,” which would be frustrated if a stay were
issued. Bucklew,
587 U.S. at 149 (quoting Hill v. McDonough,
547 U.S. 573,
584 (2006)). As to the fourth factor, “the public’s interest in timely
enforcement of the death sentence outweighs [Johnson’s] request for more
time.” Vialva, 976 F.3d at 462. The district court did not abuse its discretion
by denying a stay, and we likewise deny Johnson’s request for a stay.
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Finally, in the conclusion of his opening brief, Johnson contends that
“because [he] was entitled to a stay, the district court erred in dismissing his
Complaint with prejudice.” He devotes no further argument to that point.
We have affirmed the dismissal with prejudice of § 1983 claims in similar
circumstances when we agreed with the district court that a stay was not
warranted. See Young v. Gutierrez, 895 F.3d 829, 831–32 (5th Cir. 2018);
Smith v. Johnson,
440 F.3d 262, 263 (5th Cir. 2006) (affirming dismissal with
prejudice of dilatory complaint seeking to stay execution). Thus, we
conclude that the district court did not err in dismissing Johnson’s complaint.
Accordingly, we AFFIRM the judgment of the district court and
DENY Johnson’s motion to stay his execution.
11
