GA - Cert Opposition

8/12/2019 GA - Cert Opposition

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Nos. 13-10590 & 13A1250

IN THE

SUPREME COURT OF THE UNITED STATES

MARCUS WELLONS,

Appellant,

v.

BRIAN OWENS, et el,

Appellee.

On Petition for Writ of Certiorari to the

Eleventh Circuit Court of Appeals

APPELLEES BRIEF IN OPPOSITION TO CERTIORARI REVIEW AND

MOTION FOR STAY OF EXECUTION

SAMUEL S. OLENS SABRINA D. GRAHAM

Attorney General of Georgia Senior Assistant Attorney General

BETH A. BURTON MITCHELL P. WATKINS

Deputy Attorney General Assistant Attorney General

Office of the Attorney General of Georgia

40 Capitol Square, SEAtlanta, Georgia 30303

(404) 656-7659; (404) 651-6459 fax

ATTORNEYS FOR APPELLEES


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-i-

Appellant is scheduled for execution after 7 p.m. (EST) on Tues. June 17,

2014.


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-ii-

QUESTIONS PRESENTED

Appellant Marcus Wellons, who is scheduled for execution Tuesday, sought

discovery and a stay of execution in connection with claims attacking the method

of execution that he lodged in a civil rights lawsuit filed on June 12, 2014.

Georgia will use pentobarbital; Georgia has used pentobarbital as the single drug in

its lethal injection protocol since July 17, 2012.

The district court denied injunctive relief and refused to stay the execution.

The Eleventh Circuit affirmed. The petition for writ of certiorari that followed

raises the following questions:

1. Is it an abuse of discretion to stay an execution for claims

attacking the method of execution when Appellant fails to

demonstrate a substantial risk of serious harm that is sure or

very likely to cause serious illness and needless suffering?

2. Is it an abuse of discretion to stay an execution when Appellant

has not demonstrated any other constitutional violations?


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BRIEF IN OPPOSITION

The State of Georgia is scheduled to execute Marcus Wellons

(Appellant) Tuesday, June 17, 2014, after 7 p.m. (EST),for the capital murder

of India Roberts. After his convictions and sentence were affirmed on direct

appeal, Appellant pursued postconviction relief by filing an unsuccessful state

habeas petition. Appellant was unsuccessful during federal habeas proceedings.

On June 12th, five days before Appellants execution, he filed suit under 42

U.S.C. 1983, alleging that Appellees (collectively GDC) had failed to disclose

information about the pentobarbital it plans on using during his scheduled

executionincluding the source of the drug, how it is prepared, and who has tested

it and that this(1) violates or threatens to violate his right to be free from cruel

and unusual punishment under the Eighth and Fourteenth Amendments, (2)

violates or threatens to violate his right of access to the courts and right to due

process of law pursuant to the Fifth and Fourteenth Amendments, and (3) violates

or threatens to violate his First Amendment right to governmental proceedings.

Wellons v. Owens, et al, Doc. 1:14-CV-1827 (N.D. Ga.) at Complaint, ECF Doc.

1.1 Appellant also moved for a temporary restraining order and asked for

1ECF Doc. refers to a docket entry in the Electronic Case Filing system of the

United States District Court in the underlying 42 U.S.C. 1983 action.


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injunctive relief in the form of a stay of execution. Motion for TRO/Stay, ECF

Doc. 3. On June 16th, the district court denied the motion and requested relief.

Mem. & Ord., ECF Doc. at 10.

The Eleventh Circuit Court of Appeals affirmed the district courts denial of

relief. Wellons v. Owens, et al, Doc. 14-12663 (11th Cir. June 17, 2014).

Appellant has now petitioned for this Court to review the ruling. Appellant

presents no compelling reason for the Court to grant review because the Eleventh

Circuits ruling evidences no abuse of discretion.

STATEMENT OF THE CASE

I. FACTS OF THE CRIME

As found by the Georgia Supreme Court on direct appeal:

Throughout the summer of 1989, Wellons lived with his girlfriend,

Gail Saunders, in her townhouse apartment in Cobb County. Early

that summer, Saunders 14-year-old son Tony also lived in the

apartment. Tony and the victim, who lived in a neighboring apartment

with her mother, were friends. The victim occasionally visited Tony

inside Saunders apartment, where the two youths would watch

television or play Nintendo. Wellons encouraged Tony to date the

victim, remarking several times that she was a good-looking girl. At

some point during the summer, Tony moved to Chattanooga to live

with his grandparents. The victim continued to spend time withSaunders occasionally. Saunders described herself as the victims

play mommy with whom the victim shared confidences.

Wellons and Saunders had become acquainted at the hospital where

both worked, Wellons as a counselor in the psychiatric ward. Wellons

moved in with Saunders on the pretense that he owned a home but


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was unable to occupy it, because an ex-girlfriend had moved there

with her two young daughters, and he could not in good conscience

turn them out. Over the summer Wellons proposed marriage toSaunders. However, by then Saunders had become wary of Wellons,

who was increasingly hostile and abusive. She verbally accepted his

proposal out of fear, all the while seeking an escape from her

predicament.

On the evening of August 30, 1989, Saunders told Wellons that their

relationship was over and that he must move out of the apartment.

Wellons, who had recently been fired from his job, purchased a one-

way ticket to Miami for a flight departing on the evening of August

31. Fearing to be alone with Wellons the night before his departure,Saunders told Wellons that she was going to Chattanooga to spend the

night with her parents and enroll Tony in school. Instead, Saunders

went to the home of a female friend.

That evening, Wellons began making desperate attempts to reach

Saunders by telephone. He called her mother in Chattanooga

repeatedly, only to be told that Saunders had not arrived. Wellons then

called Saunders friends, but no one knew or revealed her

whereabouts. He called his mother and told her he suspected thatSaunders was with another man. Wellons became increasingly angry

and began drinking. He ransacked Saunders apartment. He overturned

potted plants and furniture, threw flour onto the floor, and poured

bleach over all of Saunders clothes, carefully sparing his and Tonys

belonging in the process.

After the apartment was demolished, Wellons began attempts to cover

up his deed. He broke a window, from the inside out; cutting his hand

in the process and smearing blood around the apartment. He stacked

electronic equipment by the door. He then called 911 at approximately3:00 a.m. on August 31 to report a burglary. When a police officer

arrived, Wellons told the officer that he had come home to find the

apartment ransacked, although no items were missing. Wellons

explained to the officer that he cut his hand while struggling to

uncover a stash of money to determine if it had been taken. Sometime


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after the officer left, Wellons wrote a racial slur across the wall in

Saunders bedroom.

Several hours later, at approximately 8:00 a.m., the victim said

goodbye to her mother and walked from her apartment, past Saunders

door, to the school bus stop. Shortly thereafter, Saunders next door

neighbor heard muffled screams from inside Saunders apartment.

The apartment building was close to a wooded area, beyond which

was a grocery store. At approximately 2:00 p.m., Wellons approached

an acquaintance who was employed at the grocery store and asked to

borrow a car. The acquaintance refused. Wellons told the

acquaintance that when he (Wellons) returned home the previous

night, he encountered two white men who were burglarizing theapartment. Wellons said that he successfully fought off the intruders

but explained that he had in the process sustained the injuries to his

hand.

About half an hour later, Theodore Cole, a retired military police

officer, was driving near the wooded area behind the apartment

complex. He spotted in the distance a person carrying what appeared

to be a body wrapped in a sheet. He distinctly saw feet dangling from

the bottom of the sheet. Cole drove on but then returned for a secondlook. He drove around in the parking lot of the apartment complex

and saw nothing. As he was driving away, however, he saw a man in

this rear view mirror walk along the road and throw a sheet into the

woods.

The police first discovered sheets, clothing and notebooks bearing

Tonys name. Then, upon close inspection of a pile of tree branches

near where he had seen the man carrying the sheet, Cole spotted the

body of India Roberts. When the branches were removed, the officers

discovered that the victim was completely unclothed, with cuts on oneside of her face and ear and bruises on her neck.

During the search of the woods, Cole spotted a black man with a

bundle under his arm near the apartment building and identified him

as the man Cole had seen carrying the sheet. Cole and an officer

chased the man, but as they approached the building, the man turned


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the corner and Cole and the officer heard a door shut. The officer

learned from a passerby which apartment was occupied by a man

fitting the description given by Cole. He knocked on Saunders doorand announced his presence, but there was no answer. He returned to

join the other officers, who were investigating the scene in full force,

with helicopters overhead.

Wellons, now trapped inside Saunders apartment with residual

evidence of his crime, gave up his attempt to dispose of the evidence

in the woods. He first tried to clean the apartment and his clothes. He

then abandoned that project, changed into swim wear, grabbed an old,

yellowed newspaper and a cup of wine, partially barricaded and

locked the door, and headed for the pool. On his way, Wellons caughtsight of a police officer and stopped abruptly. The officer began

questioning him. Initially evasive, Wellons did ultimately tell officers

that the injuries to his hand, and new scratches to his face, were

sustained during a scuffle with two men whom he had caught

burglarizing Saunders apartment.

While investigating the scene, officers had asked Cole whether either

of two black males was the man Cole had seen carrying the sheet.

Cole immediately ruled out each of the men. Then, while officerswere questioning Wellons, one officer standing at a distance from the

questioning asked Cole whether Wellons was the man he had seen.

Cole said that although Wellons was wearing different clothing from

the man he had seen carrying the sheet, and whom he had again seen

near the complex, Cole was 75 to 80 percent certain that Wellons was

the same man.

Later that day, officers searched Saunders apartment. Inside, they

found numerous items of evidence including the victims notebook

and earrings. In Tonys room, they discovered the victims panties.They also found blood on Tonys mattress and box springs. The

mattress had been flipped so that the bloody portion was facing

downward, and the bed had been remade.

The autopsy revealed that the victim died from manual strangulation,

which in itself would have taken several minutes. The autopsy also


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showed that Wellons had attempted to strangle the victim with a

ligature, possibly a telephone cord, and that he had bruised her and cut

her face and ear with a sharp object. The evidence suggested thatWellons had dragged or otherwise forcibly moved the victim from the

kitchen up the stairs to Tonys bedroom. Finally, the autopsy revealed

a vaginal tear and copious amounts of what appeared to be seminal

fluid within the victims vagina. She had defensive wounds to her

hands, and her blouse was stained with her own blood.

Wellons, 266 Ga. at 78-81, 463 S.E.2d at 873-875.

II. Appellate And Postconviction Proceedings

Appellant was tried before a jury May 19 through June 8, 1993 and was

convicted of the murder and rape of India Roberts. On June 8, 1993, Appellant

was sentenced to death for murder and to life imprisonment for rape. The Georgia

Supreme Court affirmed Appellants convictions and sentences on November 20,

1995. Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995). A petition for writ of

certiorari was denied by this Court on October 7, 1996. Wellons v. Georgia, 519

U.S. 830 (1996).

On May 27, 1997, Appellant filed a state habeas corpus petition. On

October 28, 1997, Appellant filed an amended state habeas corpus petition, which

replaced the original state petition for writ of habeas corpus in its entirety. The

state habeas court denied relief on July 20, 1998. Following the denial of state

habeas corpus relief, Appellant applied for a certificate of probable cause to appeal

from the Georgia Supreme Court. The Georgia Supreme Court denied Appellants


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application to appeal on January 9, 2001. On August 23, 2001, Appellant

submitted a petition for writ of certiorari in this Court. It was denied on October

29, 2001. Wellons v. Turpin, 534 U.S. 1001, 122 S. Ct. 476 (2001).

Prior to the denial of Appellants petition for writ of certiorari, on May 18,

2001, Appellant filed a petition for writ of federal habeas corpus. The district

court denied relief on February 20, 2007. Appellant was granted a certificate of

appealability on July 27, 2007. The Eleventh Circuit denied relief on January 5,

2009. Wellons v. Hall, 554 F.3d 923, 936 (2009).

After Appellant petitioned this Court for writ of certiorari, the Court granted

Appellants petition, vacated the opinion of the Eleventh Circuit, and remanded

Appellants case to the Eleventh Circuit, based on the majoritys concern of

whether the Eleventh Circuit had fully reviewed Appellants claim that the district

court erred when it denied Appellant discovery and a federal evidentiary hearing

on Appellants juror misconduct claims. Wellons v. Hall, 558 U.S. 220, 130 S. Ct.

727 (2010) (per curiam).

On January 19, 2010, the Eleventh Circuit remanded the case to the district

court, (Wellons v. Hall, 603 F.3d 1236, 1237 (11th Cir. 2010)), where extensive

discovery was held on the juror misconduct claim. Following briefing by both

parties, the federal district court denied federal habeas relief on Appellants juror


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misconduct claims. Appellant was again granted a certificate to appeal. The

Eleventh Circuit subsequently affirmed the district courts denial of federal habeas

relief on all of Appellants claims. Wellons v. Warden, 695 F.3d 1202 (11th Cir.

2012). This Court denied Appellants petition for certiorari on October 7, 2013.

Wellons v. Humphrey, 134 S. Ct. 177 (2013).

Appellant is scheduled to be executed today, June 17, 2014. On June 12,

2014, Appellant filed a 1983 suit challenging the method of execution in federal

district court seeking temporary and permanent injunctive relief. The district court

denied the requested relief on June 16, 2014. Appellant appealed to the Eleventh

Circuit which also denied relief today, June 17, 2014. Appellant now seeks review

in this Court.

REASONS FOR DENYING THE WRIT

Review on writ of certiorari is not a matter of right, but of judicial discretion

and will be granted only for compelling reasons. Sup. Ct. R. 10. No compelling

reason exists in this case to justify the exercise of this Courts certiorari

jurisdiction. The Eleventh Circuit correctly affirmed the district courts denial of

relief. That decision is not contrary to this Courts established precedent, nor does

it conflict with a decision of another circuit or raise an important question that


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should initially be decided by this Court. Appellant fails to identify a compelling

reason for the Court to grant review.

I. The Eleventh Circuit Did Not Abuse Its Discretion in Denying Relief.

The Eleventh Circuit correctly reviewed the district courts denial of a stay

and injunctive relief for an abuse of discretion. E.g., Mann v. Palmer, 713 F.3d

1306, 1310 (11th Cir. 2013) (denial of stay of execution reviewed for abuse of

discretion); Chavez v. Fla. SP Warden, 742 F.3d 1267 (11th Cir. 2014) (temporary

injunction reviewed for abuse of discretion). For Appellant to be entitled to a

preliminary injunction or a stay of execution, he needed to show a substantial

likelihood of success on the merits and that the balance of harms tips in his favor.

See DeYoung v. Owens, 646 F.3d 1319, 1324 (11th Cir. 2011). When the

requested relief is the extraordinary remedy of preliminary injunction, a movant

must establish:

(1) he has a substantial likelihood of success on the merits; (2) he will

suffer irreparable injury unless the injunction issues; (3) the stay

would not substantially harm the other litigant; and (4) if issued, the

injunction would not be adverse to the public interest.

DeYoung, 646 F.3d at 1324 (quoting, Powell v. Thomas, 641 F.3d 1255, 1257

(11th Cir. 2011).

The Eleventh Circuit correctly affirmed the district courts rulings because

Appellant failed to demonstrate a likelihood of success on the merits of his Eighth


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Amendment or other constitutional claims. Even though Appellant had been

provided with GDCs July 17, 2012 Lethal Injection Procedures (the 2012

Protocol), he maintained that it did not provide him enough detail to state viable

claims upon which relief could be granted, and styled his action as an Eighth

Amendment challenge based on his lack of information to make a method of

execution challenge. Appellant offered only speculation in support of his claims

that the GDCs failure to disclose the name of the pharmacy (and other information

related to the pentobarbital) or that the qualifications of the execution team could

lead to an Eighth Amendment or other constitutional violations. Because the case

presents no issue worthy of review, the Court should deny Appellants petition and

accompanying motion for stay.

A. Appellants Eighth Amendment claim is foreclosed under Baze v.

Rees, 553 U.S. 35 (2008).

This Court recognized a narrow exception to the general rule that prevents

federal courts from granting stays where a states execution procedures would not

comport with the Constitution. See Baze, 553 U.S. at 61; Hill v. McDonough, 547

U.S. 573, 583-85 (2006); Nelson v. Campbell, 541 U.S. 647, 650 (2004).

However, merely [f]iling an action that can proceed under 1983 does not entitle

the complainant to an order staying an execution as a matter of course. Hill, 547

U.S. at 583-84. Rather, a stay of execution is an equitable remedy that is not


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available as a matter of right, and equity must be sensitive to the States strong

interest in enforcing its criminal judgments without undue interference from the

federal courts. Nelson, 541 U.S. at 649-50.

In the district court, Appellant complained that he had not been provided

sufficient information about the pentobarbital the State will use to carry out his

execution, including the name of the pharmacy, where and how the pentobarbital

was manufactured, the qualifications of the persons who manufacture the drugs,

and the qualifications of the IV Team. Complaint, ECF Doc. 1; Motion for

Temporary Restraining Order/Stay, ECF Doc. 3. However, the GDC has already

informed Appellant that his execution would be carried out consistent with its 2012

Protocol that was implemented before the previous execution; that GDC plans to

administer five grams of pentobarbital; and that the execution will be carried out

by trained medical personnel, including a physician and a qualified IV Team that

includes at least one nurse. Appellant overlooks the hundreds of lethal injections

that have been humanely carried out in the United States, and instead focuses on

executions in which accidents occurred to speculate that an accident could occur

during his execution.

This Court has made clear that no Eight Amendment challenge to a States

method of execution will stand unless two showings are made, that: (1) the States


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proposed method of execution entails a substantial risk of serious harm that is

sure or very likely to cause serious illness and needless suffering, Baze v. Rees,

553 U.S. at 49-50; and (2) that the Appellant proposes a feasible, readily

implemented [alternative procedure that will] in fact significantly reduce a

substantial risk of severe pain. Id. at 52.2 The Eleventh Circuit correctly

concluded that Appellants speculative allegations of potential harmthat the

pentobarbital may be different and may cause a risk of severe pain, and that the IV

Team may have an accident when providing intravenous accesses to Appellant

were insufficient to warrant relief.

Furthermore, Appellant has never identified any alternative procedure that

could be used by the GDC in the execution. For that matter, neither has he

identified any alternative pharmacy from whom the GDC could feasibly and

readily obtain pentobarbital, and from whom death-row inmates would be satisfied

2To the extent that Petitioner asserts a transparent protocol is an acceptable

alternative under Baze, this is not what Bazecontemplated. Further, again the

GDCs protocol is transparent; only the source of the drug, and information which

could lead to disclosure of the source of the drug, is being withheld pursuant to

O.C.G.A. 42-5-36(d). Instead, the alternatives must effectively address asubstantial risk of serious harm. Baze,553 U.S. at 52 (citing, Farmer v.

Brennan, 511 U.S. 825, 842 (1994). To qualify, the alternative procedure must be

feasible, readily implemented, and in fact significantly reduce a substantial risk of

severe pain. Id. Petitioner fails to show that simple knowledge of the drug

supplier will significantly reduce the risk of severe pain. Indeed, the Court put this

requirement in place to avoid endless litigation of this very question.


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as its supplier. Indeed, the complete failure of Appellant to address the second

prong of Baze proves that there is no pharmacy, no drug, and no assurance of

quality that would be satisfactory to him. Because the district court properly

denied relief and the Eleventh Circuit correctly affirmed, Appellants request for

certiorari review and stay of execution should be denied.

1. Appellant did not demonstrate that Georgias current lethal

injection protocol poses a demonstrated risk of severe pain.

The Constitution does not require the elimination of all risk of pain in

connection with an execution. Baze, 553 U.S. at 47. Rather, only if conditions

presenting the risk [are] sureor very likely to cause serious illness and needless

suffering, and give rise to sufficiently imminentdangers will there be an Eighth

Amendment claim. Id. at 50 (quoting, Helling v. McKinney, 509 U.S. 25, 33, 33-

35 (1993)) (emphasis added by the Baze Court). To prevail on such a claim, there

must be a substantial risk of serious harm, an objectively intolerable risk of

harm that prevents prison officials from pleading that they were subjectively

blameless for purposes of the Eighth Amendment. Id. at 50-51 (quoting Farmer

v. Brennan, 511 U.S. 825, 846, & 847 fn. 9 (1994)). And [s]imply because an

execution method may result in pain, either by accident or as an inescapable

consequence of death, does not establish the sort of objectively intolerable risk of

harm that qualifies as cruel and unusual under the Eighth Amendment. Id. at 50.


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Appellants speculative and conclusory statements fall far short of demonstrating a

significant risk of severe pain.

This Court has rejected a similarly speculative constitutional challenge. In

Brewer v. Landrigan, 131 S. Ct. 335 (2010), the Court vacated a stay of execution

based upon a claim that the use of an execution drug from a non FDA approved

source raises questions regarding its efficacy. In a one paragraph opinion, the

Court held:

There is no evidence in the record to suggest that the drug obtained

from a foreign source is unsafe. The district court granted the

restraining order because it was left to speculate as to the risk of harm.

But speculation cannot substitute for evidence that the use of the drug

is sure or very likely tocause serious illness and needless suffering.

Id. at 445 (quoting, Baze, 553 U.S. at 50) (additional citation omitted).

In the courts below, Appellant claimed that he could not make either

showing required by Baze due to Appellees obligations under state law,

specifically under O.C.G.A. 42-5-36(d), which prevented Appellee from

disclosing the identifying information of the source of the pentobarbital and

qualifications of the personnel administering the drug as part of the execution

protocol set forth in the July 17, 2012 Lethal Injection Procedures (the 2012

Protocol) issued by the Georgia Department of Corrections (the GDC).

Appellant did not dispute that he had received the 2012 Protocol. However,


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Appellant did not attempt to make the first showing required by Baze to support

his Eighth Amendment claim, instead arguing that the 2012 Protocol did not

provide him sufficient details to challenge its constitutionality. Appellant offered

only speculation that the GDCs method of execution posed a substantial risk of

serious harm that was sure or very likely to cause him serious illness and needless

suffering. Appellant did not attempt to meet the second prong of Baze, and he did

not propose an alternative method because, Appellant repeated, he was too

uncertain about the details of 2012 Protocol to do so. Neither Appellants receipt

of the 2012 Protocol, nor Appellees representations to the district court that the

GDC would not deviate from the 2012 Protocol during Appellants execution,

persuaded Appellant to propose an alternative to the 2012 Protocol. Appellant did

not argue that the 2012 Protocol, if administered correctly, would violate his rights,

but speculated that an accident might occur during his execution.

As the district court noted during the hearing held yesterday, June 16:

What you are essentially trying to do, though, is place this client in a

better position than he would be if he were informed. You are trying

to say his ignorance, because the State wont tell him what they are

going to do, results in his being elevated to a better position legally,because now he can say, well, I dont know what they are going to do.

And under cases in other contexts in which the Supreme Court has

held there is a duty for the government to step forward and help the

defendant by producing, for instance, exculpatory evidence, Brady

v. Maryland and cases like that, in the same way, you are saying that


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your client is entitled to being treated differently than if he did have

this information, because even if he did have the information

because if he did have the information he seeks, he is not going towin.

(June 16 hearing transcript at 6) (ATTACHMENT A).

The Fifth Circuit has also rejected challenges regarding the use of

pentobarbital from a compounding pharmacy. Whitaker, 732 F.3d at 468; Sells,

2014 U.S. App. LEXIS 6381. The Fifth Circuit denied a stay of execution and

refused to allow additional discovery regarding the pentobarbital. Whitaker, 732

F.3d at 469. The Fifth Circuit explained:[i]f the state were using a drug never

before used or unheard of, whose efficacy or science was completely unknown, the

case might be different. The state, however, will use a standard amount of

pentobarbital[.] Id. at 468. The inmates could not satisfy the Eighth Amendment

by pointing to unknowns because of the possibility of contamination. Id.; see

also id. (cataloguing inmates complaints that compounding pharmacies are not

subject to the same FDA regulations and the sources of the pharmacies active

ingredients was not known). Instead, plaintiffs must point to some hypothetical

situation, based on science and fact, showing a likelihood of severe pain. Id.

(emphasis in original). The Fifth Circuit concluded that even if all the contentions

were true, what plaintiffs are demanding is that, in effect, they be permitted to

supervise every step of the execution process. They have no such entitlement. Id.


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Although Plaintiff may prefer drugs from an FDA regulated pharmacy, federal

courts are not boards of inquiry charged with determining best practices for

executions. Baze,553 U.S. at 51. Plaintiff has failed to identify any hypothetical

situation, based on science and fact, showing a likelihood of severe pain and his

Eight Amendment claim fails. The Fifth Circuit has already rejected the

constitutional challenge that Plaintiff asserts to this Court. The Eighth Circuit has

also rejected the claim that the use of compounded pentobarbital created a

substantial risk of severe pain that would support a viable Eighth Amendment

claim. In re Lombardi, 741 F.3d 888, 895-896 (8th Cir. 2014) (en banc).

Moreover, Appellant cannot use evidence of an execution from another state

following a different protocol and using different drugs to transform his

speculation into the required significant showing. The GDC is not using any new

method or new protocol to carry out Appellants scheduled execution. Indeed, the

GDC has carried an execution with its single drug protocol, which is vastly

different from the recent situation in Oklahoma in which an admittedly new

protocol was used.3 Appellants speculation that the GDC could or would switch

procedures at any time is not worthy of belief. The GDC informed Appellant he

would be executed in accordance with its 2012 Protocol that calls for administering

3Lockett v. Evans, 2014 OK 34, fn. 2 (Okla. 2014).


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a five gram dose of pentobarbital. This is a fact Appellant does not dispute.

Pentobarbital has been used effectively across the nation, in numerous executions

in Texas, and most recently used in the April 23, 2014 execution of William

Rousan in Missouri. GDC administered pentobarbital as the single drug in the

execution of Andrew Cook on February 21, 2013, and Appellant has not alleged

that Cooks execution was unconstitutional. The Fifth, Eighth, and Ninth Circuits

have each held that single drug lethal injection protocols involving pentobarbital

are consistent with the Eighth Amendment. See Sells v. Livingston, 2014 U.S.

App. LEXIS 6381 (5th Cir., April 7, 2014) (per curiam); Whitaker v. Livingston,

732 F.3d 465, 467-469 (5th Cir. 2013) (per curiam); In re Lombardi,741 F.3d 888,

896 (8th Cir. 2014) (en banc); Towery v. Brewer, 672 F.3d 650, 659 (9th Cir.

2012). The Eleventh Circuit has now found that Georgias single-drug protocol is

acceptable under Baze.

As this Court has stated, The cruelty against which the Constitution

protects a convicted man is the cruelty inherent in the method of punishment, not

the necessary suffering involved in any method employed to extinguish life

humanely. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947).

Again, Appellant fails to show the conditions presenting the risk [are] sureor


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very likely to cause serious illness and needless suffering, and give rise to

sufficiently imminentdangers. Baze, 553 U.S. at 50.

Appellant focuses on cases from other states and mostly from Oklahoma.

Pet. at 20-26. Although Jose Villegas in Texas said, it does kind of burn after

the administration of compounded pentobarbital but before beginning to snore, this

Court has never held an execution must be painless. Baze, 553 U.S. at 47.

Furthermore, in July, 2012 the GDC adopted a single drug lethal injection protocol,

and retired the two drugs, pancuronium bromide and potassium chloride, that

inmates had consistently alleged might pose a risk of harm serious enough to

violate the Eighth Amendment. Pursuant to the 2012 Protocol, during a lethal

injection procedure GDC administers only pentobarbital, a drug whose use the

Eleventh Circuit has held creates no substantial risk of serious harm to the inmate.

DeYoung, 646 F.3d at 1327. Thus, Appellants speculative claims that an

intravenous line might be misplaced, and that he could then possibly suffer like

inmates in Oklahoma or Florida who were injected with pancuronium bromide and

potassium chloride, should be rejected as grounds for granting certiorari or

granting a stay of execution.

The State is not using a new protocol to carry out Appellants execution.

The GDC informed Appellant that he would be executed in accordance with the


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2012 Protocol, which calls for the administration of five grams of pentobarbital.

Appellant does not dispute this fact. Appellants concerns that the State will

change its protocol at the last minute to use a different drug or procedure are

unfounded, given the representation made by the senior assistant attorney general

to the district court during the hearing yesterday:

[The Court]: The Plaintiff expressed a concern that at the last

minute that the Defendants may alter the protocol in

some fashion or another. Can you represent to me, asan officer of the Court, that that is not going to

happen?

[Ms. Graham]: That is not going to happen, Your Honor.

(ATTACHMENT A at 26).

Appellant nevertheless contends that the use of pentobarbital from a

compounding pharmacy may add an unacceptable risk of pain, suffering and harm.

He asserts that dangers exist from the use of such drugs because compounding

pharmacies are not subject to FDA regulation and oversight, active pharmaceutical

ingredients used in compounding might be counterfeit, and compounded drugs

could be contaminated. Appellant also maintains that the process does not allow

him to prove that the use of the drug is cruel unless he is first provided all the

technical data regarding where the compounded pentobarbital comes from, how it

was prepared, and who tested it. Appellants claims of prospective injury fail.


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Brewer, 131 S. Ct. at 335. The Fifth Circuit has already rejected the constitutional

challenge that Plaintiff asserts to this Court. Whitaker, 732 F.3d at 469. The

Eighth Circuit has also rejected the claim that the use of compounded pentobarbital

created a substantial risk of severe pain that would support a viable Eighth

Amendment claim. In re Lombardi, 741 F.3d at 895-896.

Appellant argues that he is entitled as a matter of law to information about

the drugs the GDC will use to carry out executions. What Appellant actually

asserts is that he is entitled to know the identity of the pharmacy from which the

pentobarbital came.

The identity of the pharmacy is excepted from disclosure pursuant to state

law, O.C.G.A. 42-5-36(d). That statute provides:

(d) (1) As used in this subsection, the term identifying

information means any records or information that reveals a

name, residential or business address, residential or business

telephone number, day and month of birth, social security

number, or professional qualifications.

(2) The identifying information of any person or entity who

participates in or administers the execution of a death sentence

and the identifying information of any person or entity that

manufactures, supplies, compounds, or prescribes the drugs,medical supplies, or medical equipment utilized in the

execution of a death sentence shall be confidential and shall not

be subject to disclosure under Article 4 of Chapter 18 of Title

50 [the Georgia Open Records Act, O.C.G.A. 15-18-70, et

seq] or under judicial process. Such information shall be

classified as a confidential state secret.


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O.C.G.A. 42-5-36(d)(1), (2).

The constitutionality of this statute has been upheld by the Georgia Supreme

Court. See Owens v. Hill, 2014 Ga. LEXIS 400 (Ga. May 19, 2014).

Furthermore, federal courts have upheld Georgias confidential state secret

privilege when invoked. See Taylor v. Nix, 451 F. Supp. 2d 1351 (N.D. Ga.

2006). In Taylor, the defendants asserted the privilege when an inmate requested

information received by the Georgia Board of Pardons and Parole in performing its

duties. Id. at 1352. The court found that the Georgia Legislature had expressly

conferred privileged status on the information, and that Georgia had a compelling

interest in preserving the information under the state secrets privilege. Id. at 1354.

As discussed above, Appellant does not set out a plausible Eighth Amendment

claim, and as a matter of law, the information he seeks cannot ultimately aid his

suit. Appellants claims would fail even if he received the confidential information

he requests.

Under GDCs July 2012 Protocol, executions are carried out by a physician,

along with a qualified IV Team including at least one nurse, and an Injection

Team. Prior to an execution, the IV Team provides two intravenous accesses to

the inmate. To begin the execution, the Injection Team injects two syringes, each

containing 2.5 grams of the pentobarbital, followed by a saline flush of the line.


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After sufficient time, if there are visible signs that the inmate is still awake despite

administration of the drug, the Injection Team administers an additional five grams

of pentobarbital, followed by the saline flush. A physician then enters the

execution chamber to examine the inmate and pronounces him dead.

As Appellants speculations cannot substitute for evidence that the use of the

pentobarbital or GDCs protocol is sure or very likely to cause him serious illness

and needless suffering, this Court should deny his request for a stay. Appellant has

no chance of succeeding on an Eighth Amendment claim where he would be

executed with pentobarbital under procedures fully designed to minimize any pain

and suffering. The lower courts correctly denied his challenge and requests for

relief, and this Court should decline review.

2. Appellant fails to state a viable cause of action because he

fails to identify a more humane method of execution.

An Eighth Amendment claim under Baze also requires a showing that the

demonstrated risk of severe pain is substantial when compared to the known

and available alternatives. Baze, 553 U.S. at 61. Proposing marginally safer

alternatives will not suffice. Rather, the proposed alternative must effectively

address a substantial risk of serious harm, and must be feasible, readily

implemented, and in fact significantly reduce a substantial risk of severe pain. Id.

at 52 (quotation omitted).


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Appellant offers no viable alternative method of execution, instead merely

asserting he wants transparency. But the Court should not entertain any argument

from Appellant that he needs information from the GDC in order to meet his

burden under Bazes prong twothat burden rests solely on his provision of a

readily available alternative to using pentobarbital from a compounding pharmacy.

As the Eighth Circuit recently explained, even if Appellants hypothetical

situations were to come to pass, they would demonstrate only a risk of pain, not

that the risk was substantial when compared to known and available alternatives:

Without a plausible allegation of a feasible and more humane

alternative method of execution, or a purported design by the State to

inflict unnecessary pain, the Appellants have not stated an Eighth

Amendment claim based on the use of compounded pentobarbital. . . .

It was therefore a clear abuse of discretion for the district court to

allow the claim to proceed and to order on that basis discovery ofsensitive information, the disclosure of which Lombardi avers would

prevent the State form acquiring lethal chemicals necessary to carry

out the death penalty.

In re Lombardi, 741 F.3d 888, 896 (8th Cir.) (en banc), cert. denied,134 S. Ct.

1790 (2014). Because Appellant failed to state a viable cause of action, the lower

courts were precluded from issuing injunctive relief or stays of execution, and this

Court should also deny Appellants requests for certiorari or a stay of execution.

B. Appellant did not show a substantial likelihood of success

on the merits on his remaining claims.


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Similarly, the lower courts did not err in denying Appellants motions for a

stay. Appellants claims regarding other alleged constitutional violations do not

warrant this Courts exercise of certiorari review, or the grant of a stay.

Appellants due process and access to the courts do not state plausible claims for

relief. Due process ensures the right to notice, the meaningful opportunity to be

heard, and a fair and impartial process appropriate to the nature of the case. See

LaChance v. Erickson, 522 U.S. 262, 266 (1998). It does not enable prisoners to

discover grievances, and to litigate effectively once in court. Lewis v. Casey, 518

U.S. 343, 354 (1996); see also Giarratano v. Johnson, 521 F.3d 298, 305-306 (4th

Cir. 2008) (denying a due process access to the courts claim where an inmate was

completely denied access to a prison systems medical protocol, noting that this did

not make the inmates challenge impossible, but just made it more difficult.).

The Fifth Circuit has held that an inmates right to due process is not violated by

the States refusal to disclose its execution protocol, holding: There is no violation

of the Due Process Clause from the uncertainty that Louisiana has imposed on

[Appellant] by withholding the details of its execution protocol. Perhaps the

states secrecy masks a substantial risk of serious harm, but it does not create

one. Having failed to identify an enforceable right that a preliminary injunction

might safeguard, [Appellant] cannot prevail on the merits. Sepulvado v. Jindal,


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729 F.3d. 413 (5th Cir. 2013). Regardless, in Georgia, the execution protocol has

remained unchanged since July 2012. The only thing that is different is the

manufacturer from which the GDC obtained the pentobarbital. Having failed to

identify an enforceable right that a preliminary injunction might safeguard,

Appellant cannot prevail on the merits, and this Court should affirm.

Finally, Plaintiffs First Amendment claim does not entitle Plaintiff to a stay

of execution. Furthermore, this presents an issue of state law, specifically an

exception to Georgias Open Records Act for information held by state officials,

which the state legislature has decided to protect from disclosure by statutorily

invoking its confidential state secrets privilege. The Georgia Supreme Court has

determined that this statute is constitutional, see Owens v. Hill, 2014 Ga. LEXIS

400 (Ga. May 19, 2014), and federal courts have previously upheld this privilege

against an inmates First Amendment challenge and request for discovery, and

determined that the State has a compelling and justifiable interest in creating and

preserving this privilege. See Taylor v. Nix, 451 F. Supp. 2d 1351, 1354 (N.D. Ga.

2006).

Appellant has not cited any circuit that has recognized a First Amendment

right to the confidential information that he requests, information that would not

assist him in demonstrating a substantial likelihood of success on the merits of his


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Eighth Amendment claim. Appellant is not in lawful possession of this

information, is not in the business of publishing such information, and does not

have to cease disseminating once-public information to comply with O.C.G.A.

42-5-36(d). Accordingly, Appellant cannot raise a facial challenge to the statute,

and his claim is properly analyzed as a content-based restriction of access to

government information. [T]his is not a case in which the government is

prohibiting a speaker from conveying information that the speaker already

possesses. Los Angeles Police Dept v. United Reporting Pub. Corp., 528 U.S.

32, 40-41 (1999). Appellant has not demonstrated that he had an initial right to the

identities of the execution team, only that before the enactment of O.C.G.A. 42-

5-36(d), inmates in Georgia were provided with the labels of companies that

subsequently ceased providing drugs for use in lethal injections. ECF Doc. 1-8.

Because Appellant cannot show a substantial likelihood of success on the merits,

the lower courts correctly denied Appellants claims. This Court should therefore

reject Appellants allegations that he needs additional time and information

regarding the pentobarbital in order to assess the viability and constitutionality of

his impending execution.


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II. Appellant Cannot Show that the Balance of Harms Favors an

Injunction.

Finally, it is not in the public interest to grant an injunction. A stay of

execution is an equitable remedy and, as such, it must be sensitive to the States

strong interest in enforcing its criminal judgments without undue interference from

the federal courts. Hill, 547 U.S. at 384 (citing, Nelson, 541 U.S. at 649-50). So,

too, an injunction against a particular method of execution must not ignore the

States interests. Appellants state and federal collateral proceedings have long run

their course in the many years since he was sentenced to death. The State has an

interest in seeing that its laws are enforced and in carrying out executions as

scheduled. Further unnecessary delay hinders that interest. Similarly, the needless

uncertainties and expense that come from unwarranted delay in death penalty

cases, as well as the impact of such delay upon the friends and families of victims

and their communities, is only compounded by issuance of unwarranted injunctive

relief. This is especially true where, as here, Appellant cannot succeed on the

merits of his claims.

III. Appellant is Not Entitled to a Stay of Execution from This Court.

Appellant is not entitled to a stay of execution because he cannot

demonstrate a substantial denial of a constitutional right that would become moot

if he were executed. Barefoot v. Estelle, 463 U.S. 880 (1983). In order to make


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such a showing, an applicant must demonstrate more than the absence of frivolity

or good faith on the part of applicant. Id. at 893. Indeed, he must demonstrate

that the issues are debatable among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are adequate to deserve

encouragement to proceed further. Id. at 893 fn. 4. Appellant fails to make this

showing.

As demonstrated above, Appellants view totally disregards Bazes

statement that courts are not supposed to function as boards of inquiry charged

with determining best practices for execution, with each ruling supplanted by

another round of litigation[.] Baze, 553 U.S. at 51. Each person scheduled for

execution in the coming months is not entitled to delay the execution solely to

complain about the use of a drug (pentobarbital) that has been used humanely for

years. That does not change merely because the drug may now come from a

different source, because of the efforts of inmates and death penalty foes.

Furthermore, Appellant cannot show a substantial denial of a constitutional

right when he refuses to acknowledge: (1) the existence of Bazes second prong;

(2) the fact that he needs nothing from the State in order to submit an alternative to

the Court; and (3) he has had plenty of time to come up with an alternative to the

method of a single dose of pentobarbital, and apparently has not even tried. Baze


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forbids the Court to stay an execution based on method-of-execution challenges

(and even Appellants process-based claims are based upon a purported Eighth

Amendment challenge to GDCs established protocol) when the challenger offers

no alternative, much less one that is feasible and readily available.


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IV. CONCLUSION

For the reasons set forth above, the Court should deny Appellants petition

for writ of certiorari and deny his application for stay of execution.

Respectfully submitted,

SAMUEL S. OLENS 551540

Attorney General

BETH A. BURTON 027500

Deputy Attorney General

s/Sabrina Graham______________________

SABRINA GRAHAM 305755

Senior Assistant Attorney General

s/Mitchell Watkins_____________________

MITCHELL WATKINS 740559

Assistant Attorney General

Please serve:

SABRINA GRAHAM

Senior Assistant Attorney General

40 Capitol Square, S.W.

Atlanta, Georgia 30334

Telephone: (404) 656-7659

Facsimile: (404) 651-6459

Email: [email protected]


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CERTIFICATE OF SERVICE

I hereby certify that on the 17th day of June, 2014, I electronically filed the

foregoing Appellees Brief in Opposition with the Clerk of the Court using the

CM/ECF system, which will automatically send e-mail notification of such filing

the following attorneys of record:

Gerald W. King, Jr.

Jeffrey Lyn Ertel

Federal Defender Program, Inc.101 Marietta Street, Suite 1500

Atlanta, GA 30303

[email protected]

[email protected]

Mary Elizabeth Wells

Law Office of M.E. Wells

376 Milledge Ave., S.E.

Atlanta, GA [email protected]

s/Mitchell Watkins

MITCHELL WATKINS

Assistant Attorney General

40 Capitol Square, S.W.

Atlanta, Georgia 30334Telephone: (404) 651-6927

Facsimile: (404) 651-6459

Email: [email protected]

GA - Cert Opposition

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