____________ FILED October 9, 2023 No. 23-70005 Lyle W. Cayce ____________ Clerk Jedidiah Isaac Murphy,

Plaintiff—Appellee,

versus Ali Mustapha Nasser,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 1:23-CV-1170 ______________________________ Before Smith, Southwick, and Graves, Circuit Judges. Leslie H. Southwick: Circuit Judge: Before us is an emergency appeal by the State of Texas seeking to vacate a stay of execution entered by the district court. The issue on which the district court decided to enter a stay is whether the inmate is entitled to have DNA testing performed on certain evidence. The district court granted a stay because similar issues were pending before this court in a case brought by a different Texas prisoner. That related case is fully briefed and has been orally argued, and a decision in the case is pending. We agree with the district court that a stay is appropriate at least until a decision in that case. At that time, this court will order additional briefing. No. 23-70005

Before we discuss why we leave the stay in place at this time, we need to explain our jurisdiction. The dissent’s alternative opinion contains the same analysis, and we restate much of it here. The inmate, Jedidiah Murphy, somewhat surprisingly argues that we do not have jurisdiction to consider whether to leave the stay of execution in place. This circuit and others have said previously that we have jurisdiction to review a stay of execution on interlocutory appeal. Indeed, as defendants remind us, the practice is so commonplace that we have a circuit rule governing it. 5th Cir. R. 8. We discuss here why the practice is commonplace. The State brought this appeal asserting jurisdiction under 28 U.S.C. § 1292(a)(1). Generally, that section allows appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing” to enter such orders. Id. As our quotation reveals, Section 1292(a)(1) explicitly refers to injunctions. Nonetheless, the Supreme Court stated that it had “not allowed district courts to ‘shield [their] orders from appellate review’ by avoiding the label ‘injunction.’” Abbott v. Perez, 138 S. Ct. 2305, 2320 (2018) (quoting Sampson v. Murray, 415 U.S. 61, 87 (1974)). That means “where an order has the practical effect of granting or denying an injunction, it should be treated as such for purposes of appellate jurisdiction.” Id. at 2319. To explain, the Court stated that when “an interlocutory injunction is improperly granted or denied, much harm can occur before the final decision in the district court.” Id. Orders are “effectively injunctions” when they “barred” conduct at issue in the litigation. Id. A “stay” is more aptly applied to a court order that “operates upon the judicial proceeding itself, either by halting or postponing some portion of it, or by temporarily divesting an order of enforceability.” Nken v. Holder, 556 U.S. 418, 434 (2009). Here, the district court order bars Texas officials from carrying out “lawful and important conduct” because it prevents them from performing

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Murphy’s execution. See Abbott, 138 S. Ct. at 2319. Moreover, the district court’s order does not operate on the judicial proceeding but restricts the actions of specific def