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THIS IS A CAPITAL CASE - EXECUTION SCHEDULED

MISSOURI HAS SET APPLICANTS EXECUTION FOR


JULY 16, 2014 at 12:01 AM

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT


JOHN C. MIDDLETON, :
Petitioner-Appellee, : No.: 14-2677
:
v. :
:
DONALD P. ROPER, Superintendent, :
Potosi Correctional Facility, :
Respondent-Appellant. :
:


PETITION FOR REHEARING EN BANC

This Court should grant John Middleton a rehearing en banc pursuant to Fed.
R. App. P. 35 because Mr. Middleton has made a substantial showing of the denial of
a constitutional right and the panels decision vacating the stay of execution granted
by the district court incorrectly applied the standard of review and the law.
The Panels order indicates that Middleton has not shown a substantial
likelihood of success on the merits of his federal habeas petition. But that is the
incorrect standard for a Ford substantial threshold showing, which Petitioner has
shown has been met by the district courts express findings. Doc. 135. The Panel
erred in jumping to a substantial likelihood of success assessment. This is patent
given the nature of Ford litigation. Having met that Ford showing entitles Petitioner
to a hearing and, necessarily, a stay of execution. Ford, 477 at 426 (Powell, J.,
concurring). The orders below are reviewed for clear error.
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Also, the Panel has incorrectly found that the Ford issue was not presented to
the Missouri Supreme Court. The district court made a factual finding that Mr.
Middleton had pursued his Ford claim in the state courts. Middleton v. Roper, 4:03-
CV-00543-CDP, 7/15/2014 Order, Doc. 135. The district court expressly found that
Middleton filed a writ of error coram nobis with the state trial court, and a motion
for appointment of a special master with the Missouri Supreme Court. Both motions
challenged Missouris lack of a method for raising Ford claims in state court and both
sought as relief a full hearing on Middletons competency to be executed. Both were
summarily denied by the Missouri courts; neither court explained its rationale for the
denials. Id. Judge Bye, in his dissent, also remarked upon that fact. Dissent at 4.
Not only does the Panels per curiam opinion repeatedly and incorrectly assert
that Mr. Middleton failed to avail himself of state court remedies (Order at 3, 4), it goes
so far as to speculate about why he did not do so. Order at 4. (Middleton thus far has
declined, perhaps for tactical reasons in light of 2254(d), to advance a Ford claim
before the Supreme Court of Missouri.)
With respect to the Rhines criteria are met, it is clear that reasonable time
limits on a petitioners trip to state court and back xx place when that The Panels
reasoning is also contrary to Rhines, which specifically contemplates stays of
execution in order to permit a petitioner to exhaust. Were the Panels reasoning
correct, a petitioner would never be entitled to a stay on an unexhausted claim. Here,
after Middleton took his Ford issue to two state courts and then the federal court and
was told, last night, that because the Missouri Supreme Court could adapt its
practice and, for the first time ever, contemplate a Ford claim, he is to pay. And pay
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dearly. If this Court wants the comity concerns addressed here, then Middleton must
be permitted to return to the state courts, as advised.
The panels order wholly disregards the districts finding and is patently
unreasonable. The Court en banc should grant rehearing.
VI. CONCLUSION
For the foregoing reasons, Petitioner-Appellee respectfully requests that the
Court order a hearing en banc and ENTER A TEMPORARY STAY OF
EXECUTION DURING THE PENDENCY OF SUCH A HEARING.
Respectfully submitted,
s/Joseph J. Perkovich
Joseph J. Perkovich
PO Box 2171
New York, NY 10008
(212) 400-1660 (Tel.)
jjp@jos.perkovich.name


RICHARD H. SINDEL, #23406
KATHRYN B. PARISH, #61781
SINDEL SINDEL & NOBLE, P.C.
8000 Maryland Ave., Suite 350
Clayton, MO 63105
Clayton, MO 63105
(314) 721-6040 (tel)
(314) 721-8545 (fax)
kparish@sindellaw.com

Counsel For Petitioner John C. Middleton

July 16, 2014
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed electronically with the
Clerk of the Court using the CM/ECF system. Notice of this filing and its viewing
and downloading are thereby provided to all counsel of record by cooperation of the
CM/ECF system.

Dated: July 16, 2013
New York, New York

s/Joseph J. Perkovich
Joseph J. Perkovich
Church Street Station
PO Box 2171
New York, NY 10008-2171
(212) 400-1660 (Tel.)
jjp@jos.perkovich.name

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