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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, SE
Atlanta, Georgia 30303
(404) 656-7659; (404) 651-6459 fax

ATTORNEYS FOR APPELLEES

-i-
Appellant is scheduled for execution after 7 p.m. (EST) on Tues. June 17,
2014.
-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 J une 12, 2014.
Georgia will use pentobarbital; Georgia has used pentobarbital as the single drug in
its lethal injection protocol since J uly 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?





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 J une 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

1
ECF 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 J une 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. J une 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 with
Saunders 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 to
Saunders. 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 that
Saunders 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 approximately
3:00 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 the
apartment. 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 second
look. 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 one
side 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 door
and 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 caught
sight 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 officers
were 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 that
Wellons 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 J une 8, 1993 and was
convicted of the murder and rape of India Roberts. On J une 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 J uly 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 J anuary 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 J uly 27, 2007. The Eleventh Circuit denied relief on J anuary 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 J anuary 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, J une 17, 2014. On J une 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 J une 16, 2014. Appellant appealed to the Eleventh
Circuit which also denied relief today, J une 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 J uly 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.
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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

2
To the extent that Petitioner asserts a transparent protocol is an acceptable
alternative under Baze, this is not what Baze contemplated. 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 a
substantial 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] sure or very likely to cause serious illness and needless
suffering, and give rise to sufficiently imminent dangers 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 to cause 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 J uly 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, J une 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 to
win.

(J une 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

3
Lockett 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] sure or

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very likely to cause serious illness and needless suffering, and give rise to
sufficiently imminent dangers. Baze, 553 U.S. at 50.
Appellant focuses on cases from other states and mostly from Oklahoma.
Pet. at 20-26. Although J ose 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 J uly, 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

20
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, as
an 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.

21
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.

22

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 J uly 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.

23
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).

24
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 of
sensitive 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.


25
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. J ohnson, 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. J indal,

26
729 F.3d. 413 (5th Cir. 2013). Regardless, in Georgia, the execution protocol has
remained unchanged since J uly 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

27
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.

28
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

29
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

30
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.


31
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: sgraham@law.ga.gov
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of J une, 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, J r.
J effrey Lyn Ertel
Federal Defender Program, Inc.
101 Marietta Street, Suite 1500
Atlanta, GA 30303
Gerald_King@fd.org
J eff_Ertel@fd.org

Mary Elizabeth Wells
Law Office of M.E. Wells
376 Milledge Ave., S.E.
Atlanta, GA 30312
Mewells27@comcast.net




s/Mitchell Watkins
MITCHELL WATKINS
Assistant Attorney General
40 Capitol Square, S.W.
Atlanta, Georgia 30334
Telephone: (404) 651-6927
Facsimile: (404) 651-6459
Email: mwatkins@law.ga.gov