[JURIST] A three-judge panel of the US Court of Appeals for the Fifth Circuit [official website] on Tuesday denied an emergency stay [opinion, PDF] for a Mississippi death row inmate challenging the state's lethal injection procedure. The court found that Dale Leo Bishop failed to establish that he would suffer an irreparable injury if the stay of execution was not granted while he appealed a lower court's decision that dismissed his constitutional challenge to Mississippi's lethal injection [JURIST news archive] procedure for failure to comply with the statute of limitations. In a dissent, Judge King argued:

[G]iven the fact that the adequacy of Mississippi’s protocol was effectively never litigated in this case, it seems to me highly inappropriate for the majority to import from Baze language suggesting that a stay may not be granted unless a showing is made of a substantial risk of severe pain, and then go on to decide whether such a showing has been made. Putting aside the fact that Bishop arguably has made such a showing... the effect of this is, again, to require Bishop to show a likelihood of success on the merits of an issue that was not developed below and is not part of this appeal.