Before SMITH, DENNIS, and OWEN, Circuit Judges. PER CURIAM:Christopher Young was sentenced to death by a Texas jury for the murder of Hasmukh Patel. That sentence is scheduled to be carried out by the State of Texas on July 17, 2018.After a series of unsuccessful state and federal habeas corpus challenges[1]and upon being denied clemency, Young filed a 42 U.S.C. § 1983 claim. He contends that the Texas Board of Pardons and Paroles’ decision not to recommend commutation to the Governor violated the Equal Protection Clause of the Fourteenth Amendment. Young requests a stay of his execution until he can conduct discovery to find evidence supporting that claim. The district court denied that request. We affirm.I.The state contends that the district court lacked jurisdiction, claiming that § 1983 is not the appropriate vehicle to raise an equal protection claim regarding clemency proceedings.[2] In support, the state points to our precedent determining that we lack jurisdiction under § 1983 to stay executions based on clemency-related claims.[3] Usually that would be the end of the discussion, and our rule of orderliness would require dismissal for want of jurisdiction.[4] But Skinner v. Switzer, 562 U.S. 521 (2011), is an intervening change in the law that requires us to reexamine this issue.[5]“[A] convicted state prisoner seeking DNA testing of crime-scene evidence [can] assert that claim in a civil rights action under 42 U.S.C. § 1983.” Id. at 524. The test for determining whether a claim is cognizable only in a habeas proceeding is whether the petitioner “seeks ‘immediate or speedier release’ from confinement.” Id. at 525. “Where the prisoner’s claim would not ‘necessarily spell speedier release,’ . . . suit may be brought under § 1983.” Id.Young’s challenge to the clemency proceedings will not “spell speedier release.” In fact, no release—from confinement or from the sentence of death— would result at all.[6] At most, these proceedings can result only in a stay until Young is afforded a clemency proceeding commensurate with the Constitu- tion.[7] That result would not “necessarily imply the invalidity of [the] convic- tion[] or sentence[],” as clemency could again be denied. Id. at 534 (cleaned up) (quoting Wilkinson v. Dotson, 544 U.S. 74, 82 (2005)). The district court thus had jurisdiction.II.“[A] stay of execution is an equitable remedy . . . not available as a matter of right.” Hill v. McDonough, 547 U.S. 573, 584 (2006). The inquiry is a familiar one:(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.[[8]]We agree with the district court that Young fails to satisfy the first prong.[9] As his counsel admitted at the hearing before the district court, the only evidence he presents in support of his equal protection claim is a comparison to one white prisoner whose capital sentence was recently commuted in clemency proceedings. Considering that the state has previously commuted the capital sentences of other African American males, that Young and the white comparator have differing criminal histories, that clemency decisions are predicated on “purely subjective evaluations and predictions on future behavior,”[10] and that each Board member’s signed vote swore that race was not a consideration, Young has not made a strong showing that if we were to temporarily stay the execution and allow discovery, he would find evidence of discrimination.[11]The judgment of dismissal with prejudice is AFFIRMED. The mandate shall issue immediately.
