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No.

CAPITAL CASE
EMERGENCY PETITION; EXPEDITED CONSIDERATION REQUESTED

In the SUPREME COURT of the UNITED STATES

In re: WARDEN, COMMISSIONER, Alabama Department of Corrections
ROBERT BRYANT MELSON,
Consol. Plaintiff/Appellant,
v.
WARDEN, COMMISSIONER, Alabama Department of Corrections
Defendants/Appellees.


EMERGENCY MOTION AND APPLICATION TO VACATE
STAY OF EXECUTION

Steven T. Marshall
Attorney General

Andrew Brasher
Solicitor General

Thomas R. Govan, Jr.


Deputy Attorney General
Counsel of Record *

Office of the Attorney General


501 Washington Avenue
Montgomery, Alabama 36130-0152
tgovan@ago.state.al.us
(334) 353-3637 Fax
June 5, 2017 (334) 242-7300
EXECUTION SCHEDULED FOR THURSDAY, JUNE 8, 6:00 P.M. C.S.T.
EMERGENCY MOTION AND APPLICATION TO VACATE
STAY OF EXECTUION

The State respectfully requests that this Court vacate the stay of execution

issued by the Eleventh Circuit for Robert Melsons June 8, 2017, execution date. In

1994, Melson fatally shot three employees and wounded another while robbing a

fast-food restaurant. After raiding the restaurant safe while holding the employees

at gunpoint, Melson and his co-defendant ordered the employees into the freezer,

where Melson opened fire, shooting each of the employees, although one survived

and was able to crawl to a telephone to call for help. See Melson v. State, 775 So.

2d 857, 864 (Ala. Crim. App. 1999). A jury convicted Melson of capital murder and

recommended a sentence a death. The Alabama Supreme Court set Melsons

execution date for this Thursday, June 8.

No one disputes that Alabama will execute Melson using the same lethal-

injection protocol which this Court approved in Glossip v. Gross, 135 S. Ct. 2726

(2015). But on Friday evening, June 2, an Eleventh Circuit panel stayed Melsons

execution pending the resolution of Melson and his co-plaintiffs appeals from the

dismissal of their 1983 method-of-execution lawsuit. The Eleventh Circuits stay

was improper and fundamentally misapplied this Courts long-standing stay

principles by completely failing to address, much less find, a likelihood of success

on the merits of Melsons method-of-execution challenge. Glossip, 135 S. Ct. at

2737. It also ignored this Courts precedent requiring courts to be sensitive to the
State's strong interest in enforcing its criminal judgments without undue interference

from the federal courts. Hill v. McDonough, 547 U.S. 573, 584 (2006).

In short, the Eleventh Circuit granted Melson a stay because it wanted to hear

his co-appellants appeals, not because Melson had a likelihood of success on his

claims. No. 17-11536-P, Or. 4 (To enable us to process these consolidated appeals

in an orderly fashion, we GRANT Melsons application for a stay.) The court gave

no basis for a stay, other than to note that resolving Melsons stay request would be

prejudging the merits of his co-appellants appeals. Not only is that not a reason

for granting a stay of execution under this Courts jurisprudence, but, to the contrary,

that is precisely what a court presented with a stay request from an inmate should

do: examine the merits and assess the likelihood of success of the inmates claim in

determining whether to grant the stay. Instead, the Eleventh Circuit violated this

Courts jurisprudence by issuing a stay without justification.

Indeed, there is no justification for a stay because Melson cannot demonstrate

a likelihood of success on the merits. The very fact that Alabama uses the method

of execution this Court affirmed in Glossip forecloses against a stay being granted.

A little over a month ago, this Court denied the stay requests of four Arkansas

inmates who were executed using this same protocol. See McGehee v. Hutchinson,

137 S. Ct. 1275 (2017). Alabama has already carried out three executions using this

protocol, including one less than two weeks ago in which this Court, and the

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Eleventh Circuit, denied a stay. See Arthur v. Dunn, Nos. 16A1160 (161407), 2017

WL 2289630 (May 25, 2017). Notably, two of those executed inmates were co-

plaintiffs in this very case, and their stay requests were denied by the Eleventh

Circuit because their nearly identical claims were also time-bared. See Grayson v.

Warden, 672 Fed.Appx. 956, 968 (11th Cir. 2016) (unpublished); Brooks v. Warden,

810 F.3d 812, 823 (11th Cir. 2016). Melson presents nothing different; he filed the

same complaint, alleging the same claims, and relying on the same expert witnesses,

who admitted in their depositions in this case that a large enough dose of midazolam

will place a person in a coma such that he would not respond to noxious stimuli.

There is no lawful basis for the Eleventh Circuits stay. Allowing the Eleventh

Circuits stay to stand, which hardly gave any reasons at all for its issuance, would

effectively preclude the State from carrying out an execution or seeking relief from

unlawful stays. To preserve this Courts jurisprudence concerning the requirements

that must be met to grant a stay of execution and to protect the States interest in

enforcing its criminal judgments, this Court should vacate the stay.

Melsons death warrant does not expire until June 8, 2017. It is respectfully

requested, therefore, that this Court expedite review of this matter, and notify the

Commissioner of its resolution as soon as possible so that preparations can continue

for Melsons execution in the event this motion is granted.

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STATEMENT OF THE CASE

A brief summary of the procedural history of this case demonstrates that

Melson presents nothing new or novel to justify a stay. Melson is part of a

consolidated group of death-row inmates who filed identical complaints challenging

Alabamas execution protocol. Two of the co-plaintiffs have already been executed

and their claims have been rejected by this Court and the Eleventh Circuit. Melson

presents nothing different. The only difference in this case is that the Eleventh

Circuit panel here apparently disagreed with or ignored the previous rejection of the

same claims Melson now presents.

Melsons case is on appeal from the Middle District of Alabamas dismissal

of the multi-plaintiff Midazolam Litigation,1 a collection of twelve 42 U.S.C.

1983 complaints alleging that the Alabama Department of Corrections (ADOC)

lethal-injection protocol is unconstitutional. Specifically, the district court

dismissed Melsons complaint and the complaints of co-plaintiffs, Geoffrey Todd

1
The Midazolam Litigation began in 2012, when Carey Grayson, a death-row
inmate and the lead plaintiff, filed a 1983 action challenging the States then
three-drug pentobarbital protocol. Doc. 239. After Alabama announced it was
substituting midazolam for pentobarbital, four other plaintiffs filed virtually
identical complaints and the cases were consolidated. Doc. 53. After extensive
litigation, the district court granted summary judgment against those plaintiffs last
year. Doc. 192.
4
West, Charles Lee Burton, Torrey Twane McNabb, and Jeffrey Lynn Borden,

because they were barred by the statute of limitations. Vol. 3, Tab 17.2

Melson, West, Burton, McNabb, and another inmate, Ronald Smith, filed

nearly identical complaints in April 2016. See Vol. 2, Tab 11 (Melson); Vol. 1, Tab

7 (West); Vol. 12, Tab 9 (Burton); Tab 10 (McNabb); Doc. 160-4 (Smith)3. Borden

filed his complaint in September. Vol. 1, Tab 8. These complaints were virtually

identical and attached the same evidence that had been generated in discovery in the

pending Midazolam Litigation. See Vol. 1, Tabs 7B, 7D, 7F. Given the common

issues of law and fact, the plaintiffs jointly moved to consolidate their cases with the

Midazolam Litigation, which the district court granted. Docs. 153, 233.

Smith was scheduled to be executed on December 8, 2016. In November

2016, the district court dismissed Smiths complaint as untimely. Grayson v. Dunn,

No. 2:12-cv-316-WKW, 2016 WL 6832630 (M.D. Ala. Nov. 18, 2016). The court

held that Smiths Eighth Amendment claim accrued in July 2002, and that, as all of

the alternatives Smith named were single-drug protocols, Smiths challenge was not

to midazolam, but rather to any of the ADOCs three-drug protocols, the first of

which was enacted in July 2002. Id. at *34 (In effect, he is challenging the last

2
Volume numbers refer to the Appellants Appendix filed on appeal in the Eleventh
Circuit.
3
Document numbers will refer to the lead case in the Midazolam Litigation,
Grayson v. Dunn, 2:12-cv-316-WKW (M.D. Ala.), which Melson joined.

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two drugs, not the first: not sodium thiopental, not pentobarbital, not midazolam.).

The Eleventh Circuit affirmed and denied Smiths request for a stay. Grayson, 672

Fed.Appx. at 968. Smith was executed on December 8.

Prior to that, another co-plaintiff in the Midazolam Litigation, Christopher

Brooks, was set to be executed on January 21, 2016. Brooks raised a virtually

identical Eighth Amendment claim as Smith, and also asserted the same single-drug

protocols as alleged alternative methods of execution. The district court denied

Brookss motion for a stay of execution, holding that his claim was time-barred; that

Brooks failed to show that two of his alternative methods of execution, one-drug

protocols of pentobarbital or sodium thiopental, were readily available to the ADOC;

and that Brooks failed to show a one-drug midazolam protocol was feasible, readily

available, and in fact significantly reduced a substantial risk of severe pain when

compared to the ADOCs three-drug midazolam protocol. Grayson v. Dunn, 156 F.

Supp. 3d 1340 (M.D. Ala. 2015). The Eleventh Circuit affirmed, Brooks, 810 F.3d

812, and this Court denied certiorari, Brooks v. Dunn, 136 S. Ct. 979 (2016) (Mem.).

Brooks was executed on January 21.

On March 31, 2017, the district court dismissed Melson, West, Burton,

McNabb, and Bordens complaints as time-barred. Vol. 3, Tab 17. Noting the

claims they assert are identical to Smiths claims, id. at 7, the district court

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dismissed the co-plaintiffs respective complaints on the same basis, and

incorporated its reasoning from the Smith dismissal order. Id. at 8.

On April 4, the Alabama Supreme Court ordered that Melson be executed on

June 8, 2017. Order, Ex parte Melson, No. 1981463 (Ala. Apr. 4, 2017). Rather

than ask for expedited briefing on his appeal, Melson proceeded with the normal

appeal process and filed his brief in the Eleventh Circuit on May 16. On May 25,

Melson then filed a motion for a stay of execution pending appeal in the Eleventh

Circuit. On June 2, the Eleventh Circuit granted Melsons stay of execution.

I. The stay must be vacated because the Eleventh Circuit violated this
Courts precedents concerning the requirements for the issuance of a stay
where it failed to find that Melson had a substantial likelihood of success
on the merits.

A court cannot grant a stay of execution without first finding that the stay

applicant has a significant likelihood of success on the merits. See Barefoot v.

Estelle, 463 U.S. 880, 895896 (1983). The Eleventh Circuit erred in granting a stay

where it failed to find that Melson made this showing. To determine whether a stay

of execution is warranted, a court must consider four factors: (1) whether the stay

applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether issuance

of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009).

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Critically, Melson bears the burden of showing that the circumstances justify an

exercise of that discretion. Id.

Yet in granting Melson a stay of execution, the Eleventh Circuit failed to

address any of these four factors. In particular, while acknowledging it as the

predominate factor, the court failed to address the likelihood that Melson would

succeed on the merits of his claims. Instead, the court refused to answer this

controlling question by noting that it would in effect, be prejudging the merits of

his co-appellants appeals, which the court found would be untenable.4 But this

fact is not a reason to grant a stay, nor did it absolve the Eleventh Circuit from

determining whether Melson demonstrated a substantial likelihood of success on the

merits. The court failed to cite to any decision from this Court holding that an inmate

is entitled to a stay of execution as a matter of course because his co-appellants

appeals are pending. To the contrary, there is no basis for such a decision, and in

fact, this Court has held that an inmate is not entitled to a stay of execution as a

4
To be sure, the Eleventh Circuits reasoning is unfounded because the court had
already denied a stay from one of Melsons co-plaintiffs, Ronald Smith, who filed
an identical complaint to Melson and the other co-plaintiffs, joined the
Midazolam Litigation with Melson and the others, and whose complaint was
dismissed for the very same reason that Melson and the co-plaintiffs complaints
were dismissed. See Grayson, 672 Fed.Appx. at 968. If the Eleventh Circuit was
concerned with prejudging the co-plaintiffs appeals, that issue was mooted after
Grayson.
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matter of right to file a petition for certiorari even in this Court. See Netherland v.

Tuggle, 515 U.S. 951 (1995).

Moreover, there is no authority, and the Eleventh Circuit cited none, holding

that the fact that an inmates co-appellants appeals will remain pending means that

he established a significant likelihood of success on the merits. If anything, this fact

weighs against a stay. Melson and his co-plaintiffs were death-row inmates whose

convictions were final and their conventional appeals finished when they sought to

consolidate their method-of-execution challenges with the pending Midazolam

Litigation. Thus, it was certainly foreseeable that one, if not more, of their execution

dates would be set while their case was still pending. See McNair v. Allen, 515 F.3d

1168, 1174 (11th Cir. 2008) (holding that the day a litigants death sentence becomes

final on direct review is the date on which a capital defendant's 1983 challenge to

the method of his execution will accrue because it is the date by which the relevant

facts (i.e., the manner and certainty of execution under state law) should be apparent

to a person with a reasonably prudent regard for his rights.).

Regardless, the fact that Melsons co-appellants appeals remain pending

cannot justify the issuance of a stay. Even if the Eleventh Circuit were inclined to

reverse the summary dismissal of the plaintiffs complaints on statute of limitations

grounds, that would still not be a basis to grant Melson a stay of execution. For

Melson would still have to demonstrate a substantial likelihood of success on the

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ultimate merits of his method-of-execution challenge which, as detailed below, he

simply cannot do. The Eleventh Circuit was flatly wrong to grant a stay without

considering this fact.

The Eleventh Circuits grant of a stay also conflicts with the authority that the

court cited. The court, citing Nken, 556 U.S. at 426, noted that it had authority under

the All Writs Act to grant a stay. Or. At 4. But the fact that the Eleventh Circuit

had a means to issue a stay does not also serve as a ground to issue a stay. The

Eleventh Circuits reasoning was circular. While the All Writs Act provides a court

authority to grant a stay, to actually issue a stay, a court must address whether the

party seeking the stay established all four of the traditional elements for a stay. In

fact, in Nken, in determining what criteria ... should govern the Court in exercising

th[e] power to grant a stay under the All Writs Act, this Court held that the four

traditional stay requirements must be met to establish entitlement to a stay. 556 U.S.

at 427, 434 (internal citations omitted). The Eleventh Circuit was wrong in granting

a stay without finding those requirements to be met.

Finally, the Eleventh Circuits stay violates both the traditional principles for

a stay and frustrates the States ability to carry out its criminal laws and enforce its

sentences. As this Court has noted a stay simply suspend[s] judicial alteration of

the status quo . . . by returning to the status quo[.] Id. at 429 (internal citations

omitted). Far from returning to the status quo, the Eleventh Circuits stay, devoid of

10
any reasoning, upended the status quo by interfering with the execution of a states

judicially-ordered execution that was long overdue resulting from a heinous capital

murder that occurred in 1994. This case is not like Nken, where a stay temporarily

set aside a district courts removal order under federal law. Indeed, the Eleventh

Circuits stay goes well beyond the stay of a federal district courts order, as it

intrudes on a states ability to enforce its laws and carry out a criminal sentence that

this Court has held is constitutional. Such an intrusion should only take place in the

limited circumstances where an inmate demonstrates that he has a substantial

likelihood of success on the merits. Because the Eleventh Circuit granted a stay

without finding that Melson met that standard, the court erred and the stay should be

vacated.

II. The stay must be vacated because Melson cannot demonstrate a


substantial likelihood of success on the merits.

Even if the Eleventh Circuit had properly addressed the requirements for a

stay of execution, a stay would not have been warranted because Melson had no

likelihood of success because he cannot prove his Eighth Amendment claim, and

because it was barred by the law of the case and the statute of limitations in any

event.5

5
The normal course would be to address the procedural grounds which bar Melson
from relief, particularly as the district court dismissed his complaint on statute of
limitations. But in the context of his emergency petition, because it is so clear that
11
A. Melson cannot demonstrate a likelihood of success on the merits of
his Eighth Amendment claim.

To establish an Eighth Amendment violation, a prisoner must prove two

things: (1) that the method of execution is sure or very likely to cause serious illness

and needless suffering and (2) that there is an alternative [method of execution]

that is feasible, readily implemented, and in fact significantly reduces a substantial

risk of severe pain. Glossip, 135 S. Ct. at 2737. Melson cannot demonstrate a

likelihood of success on either prong.

As an initial matter, it is extremely unlikely that Melson could demonstrate a

sure or very likely risk of needless suffering because the very three-drug protocol

approved by the Supreme Court in Glossip is the same one Alabama will use here.

Brooks, 810 F.3d at 823 (denying stay of execution for one of Melsons co-plaintiffs

in the Midazolam Litigation). But apart from the uphill climb Melson or any other

inmate would face in challenging the Glossip protocol, the particular facts in his case

establish that he cannot prove a substantial risk of serious harm because his own

experts concede that a sufficient dose of midazolam will render a person in a drug-

induced coma where they will be unable to respond to noxious stimuli.

In his complaint, as well as all of the co-plaintiffs complaints, Melson

attached the reports of two experts, Dr. Frolich and Dr. Tackett. See Vol. 1 Tab 7B,

Melson could not prove the merits of his Eighth Amendment claim, even at a trial,
the State addresses these dispositive grounds first.
12
7F, 11. Notably, while their reports noted some general characteristics and concerns

with the drug, neither specifically opined that the use of midazolam in Alabamas

three-drug protocol would likely result in pain. Indeed, in their depositions in this

case, both doctors conceded that midazolam could effectively render a person in a

drug-induced coma. Specifically, Dr. Frolich, a practicing anesthesiologist, testified

as follows:

Q: How would you define the term coma in a drug-induced context?

A: A lack of responsiveness to arousal with a variety of intense stimuli.

Doc. 145-7 at 36:1519.

Later, Dr. Frolich testified as follows:

Q: Okay. Generally, in a healthy adult, would you think 500 milligrams


bolus of Midazolam would likely result in that person being put into a
drug-induced coma?

A: I think thats a fair statement.

Id. at 95:1014. Dr. Frolich did note the lack of scientific evidence regarding high

doses of drugs and the possibility of perceiving pain, speculating that we dont

know if pain is one of those functions thats bring preserved . . . in the very deep

levels of anesthesia, id. at 36; 134:710, but such speculation cannot entitle Melson

to a stay of execution. See Brewer v. Landrigan, 562 U.S. 996 (2010) (speculation

cannot substitute for evidence that the use of the drug is sure or very likely to cause

serious illness and needless suffering.) (citing Baze v. Rees, 553 U.S. 35, 50

13
(2008)). Moreover, Dr. Frolich admitted that he had previously given midazolam

intravenously to induce unconsciousness prior to surgery while in residency. Id. at

1315.

Likewise, Dr. Tackett, a pharmacologist, also admitted that a large enough

dose of midazolam could put a person in a coma:

Q: All right. Would you agree or disagree with a definition of a coma


as, quote, a state of unconsciousness where a person cannot be
awakened, fails to respond normally to painful stimuli, light or sound,
lacks a normal wake/sleep cycle, and does not initiate voluntary
actions?

A: I would say that characterizes a coma.

Q: So part of the definition of a coma is that a person is so deeply


unconscious that they cannot respond to noxious stimuli?

A: Thats what I would understand, yes, sir.

...

Q: So pursuant to the package insert, its safe to say midazolam can put
you into a deep sleep to which you are unable to respond to painful
stimuli?

A: It can put you into a coma, right.

Doc. 145-6 at 94:695:7. The fact that both of Melsons experts concede that a large

dose of midazolam can induce a coma where a person is unresponsive to noxious

stimuli demonstrates that he cannot establish a substantial likelihood of success of

showing a sure or very likely risk of pain and suffering.

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Moreover, Melson cannot demonstrate a likelihood of success because he

cannot demonstrate the existence of known and available alternatives. Melson

proposed three alternatives: (1) a single dose of pentobarbital, (2) a single dose of

sodium thiopental, and (3) a single dose of 500 milligrams of midazolam. See Vol.

2, Tab 11 at 1420. The district court granted summary judgment against the lead

Midazolam Litigation plaintiffs, finding that they failed to meet their burden of

demonstrating known and available alternatives to the ADOCs lethal-injection

protocol. Grayson v. Dunn, 218 F.Supp.3d 1321, 1333 (M.D. Ala. 2016). The court

held that the plaintiffs failed to demonstrate that compounded pentobarbital and

sodium thiopental were available to the ADOC, as plaintiffs failed to produce

evidence of any source for the drugs, and that plaintiffs allegation that 500-miligram

bolus of midazolam was a significantly safer alternative was eviscerated by the

opinion of their own expert, Dr. Tackett, who opined that a 500mg dose is too low

for a one-drug execution. Id. Melson is part of the Midazolam Litigation and relied

on the same evidence in his complaint which the district court found to be

insufficient to prove a known and available alternative. Further, the Eleventh Circuit

already denied a stay request from one of Melsons co-plaintiffs who asserted the

exact same alternatives. See Grayson, 672 Fed. Appx. at 964 (holding that it is

apparent from the face of the complaint that Smith most likely will not be able to

show that there is a feasible, readily available alternative method of execution

15
that would substantially reduce the risk of an unconstitutional level of pain as

required by the second prong of Glossip.). There is no likelihood that Melson will

be able to establish a known and available alternative method of execution. Thus,

the Eleventh Circuits stay must be vacated.

B. Melson cannot demonstrate a likelihood of success on the merits


because his Eighth Amendment claim is barred by the law of the
case and the statute of limitations.

The district court dismissed Melson and his co-plaintiffs complaints because

they were time-barred. Vol. 3, Tab 17 at 8. The court noted that their complaints

are cookie-cutter complaints: they raise the same claims and request the same relief

as co-plaintiff Ronald Smith, whose complaint was also dismissed as time-barred.

Id. at 7. Thus, the district court dismissed Melsons complaint for the same reasons

and incorporated its dismissal order from Smiths case. Id.

Specifically, the district court held that their complaints were untimely

because their real challenge is to the last two drugs in Alabama's execution protocol,

and not to midazolam per se. Grayson v. Dunn, 2016 WL 6832630, at *3 (M.D.

Ala. Nov. 18, 2016). The district court noted that [a]s alternatives to midazolam in

the ADOC's three-drug protocol, [plaintiffs] propose[] the use of either

pentobarbital, sodium thiopental, or a 500milligram dose of midazolam to be used

in a single-drug protocol, despite the fact that Alabama had used each of those drugs

at some point as the first drug in their three-drug protocol. Id. Thus, the court

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concluded that [i]n effect, he is challenging the last two drugs, not the first: not

sodium thiopental, not pentobarbital, not midazolam. Id.

The district court noted that it was well settled that a method of execution

claim accrues on the later of the date on which state review is complete, or the date

on which the capital litigant becomes subject to a new or substantially changed

execution protocol. Id. (citing McNair, 515 F.3d at 1174). Since Alabama has

employed a three-drug protocol since 2002, the court held that the statute of

limitations for Smiths claim challenging Alabama's use of rocuronium bromide and

potassium chloride in lethal injection executions expired many years ago. Id. at *3,

*4 (These one-drug protocol proposals strip away the veneer from Smith's claim,

revealing its true identity: a challenge to all three-drug protocols that employ a

paralytic as the second drug and potassium chloride as the third drug.).

The Eleventh Circuit affirmed the district courts dismissal on statute of

limitations grounds. Grayson, 672 Fed. Appx. at 964 (holding that we agree with

the district court that Smith's allegations pose a general challenge to the use of a

three-drug protocoland the pain caused by the paralytic and the potassium chloride

used as the last two drugs in the protocolrather than to the use of midazolam per

se.). The court noted that the gist of Smiths claims related to the continued use

of a three-drug protocol and that Alabama's switch to midazolam has no bearing

17
on these allegations, which Smith [and Melson] could have asserted any time after

Alabama instituted lethal injection per a three-drug protocol in July 2002. Id.

Thus, the Eleventh Circuits affirmance of the dismissal of Smiths case on

statute of limitations, whose complaint is identical to Melson and the other co-

plaintiffs, has become the law of the case. The law of the case doctrine requires

that when a court decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same case. Arizona v.

California, 460 U.S. 605, 618 (1983). As such, Melsons claim is barred by the law

of the case and by the statute of limitations for the reasons articulated by the Eleventh

Circuit in Grayson. For these reasons, Melson cannot establish a significant

likelihood of success on his Eighth Amendment claim, and the Eleventh Circuit

panels failure to apply these bars requires this Court to vacate the stay of execution.

C. Melson cannot demonstrate a substantial likelihood of success on


his remaining claims.

Although the focus of Melsons appeal centers on his main Eighth

Amendment claim, he cannot demonstrate a likelihood of success on his two other

claims. First, Melsons Eighth Amendment challenge to Alabamas consciousness

assessment is time-barred. Melson alleges that the consciousness assessment is an

inadequate procedure[] for assessing anesthetic depth and is performed by a

corrections officer who has received no medical training. Vol. 2 Tab 11 7077.

But these general arguments could have been raised against the consciousness
18
assessment years ago. Melson does not dispute that the consciousness assessment

has been a part of Alabamas execution protocol since October 2007.

The Eleventh Circuit has held that this exact claim was time-barred in

affirming the dismissal of Melsons co-plaintiffs identical claim. See Grayson, 672

Fed.Appx at 966. Specifically, the court held the allegations concerning Alabamas

consciousness assessment procedure could have been raised in 2007 and were time-

barred as of 2009. Id. Indeed, the court noted that one of the lead plaintiffs asserted

a similar constitutional challenge to the consciousness assessment as early as 2012.

Id. n. 6. The court also rejected the argument that adding an allegation about a recent

execution revived this time-barred general challenge to the consciousness

assessment. Id. Thus, for these same reasons, Smiths claim is time-barred.

And even if it were not time-barred, the claim is meritless. In Baze, 553 U.S.

at 59, this Court expressly rejected other inmates claim that a professional

anesthesiologist was needed to help assess anesthetic depth. The Court noted that

because anesthesiologists own ethical guidelines prohibited them from participating

in capital punishment, the argument that an anesthesiologist was needed to provide

a constitutional execution is nothing more than an argument against the entire

procedure. Id. The Court also rejected the notion that the Eighth Amendment

requires more sophisticated procedures for assessing unconsciousness and

declined to hold that a consciousness assessment like Alabamas was required under

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the Eighth Amendment. Id. at 5960; see also Glossip, 135 S. Ct. at 2742. Thus,

Melson cannot establish a substantial likelihood of success on this claim.

Second, Melson cannot demonstrate a substantial likelihood of success on his

purported right of access claim, in which he seeks for his attorneys to have access to

a cell phone during his execution. This Court recently denied certiorari on this exact

claim less than two weeks ago in denying a stay to another Alabama inmate. Arthur

v. Dunn, Nos. 16A1160 (161407), 2017 WL 2289630 (May 25, 2017). Further, the

claim is clearly time-barred on the face of the complaint. Melsons complaint

attached a letter in which his counsel admitted that the ADOC has a general policy

against possession of cell phones and wireless devices within its facilities[.] Vol. 1,

Tab 7-G at 9. Moreover, it is clear from the ADOCs policy, easily available online,

that this policy has been in effect since at least August 2012. Grayson, 672

Fed.Appx at 966. For these reasons, the Eleventh Circuit twice has held that this

claim is time-barred. Id. (holding [e]ven assuming the policy did not go into effect

until that date, Smiths April 2016 claim concerning the policy would be time-

barred.); Arthur v. Commr., Ala. Dept. of Corrs., No. 17-11879-P, 2017 WL

2292095, at *9 (11th Cir. May 24, 2017) (unpublished) (holding that we agree

with the district court that August 1, 2012 was the point at which Arthur knew or

should have known of the putative injury to his right of access.).

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Further, those cases also establish that Melsons claim is meritless on its face,

as he does not cite, and the Court has not found, any precedent suggesting that

Alabama's policy prohibiting witnesses from having cell phone or landline access

infringes on the First, Eighth, or Fourteenth Amendments. Grayson, 672 Fed.Appx

at 966; see also Arthur, 2017 WL 2292095, at *12-14. Melson offers nothing

different from what was presented in those cases. Thus, he cannot establish a

significant likelihood of success. Finally, even if there was a doubt about the merits

of Melsons purported right of access claim, which there is not, it would not justify

the issuance of a stay. For there is no reason to stay Melsons execution as his right

of access claim has no impact on the method by which he will be executed, and this

Court could simply order that his counsel be given access to a cell phone instead of

staying his execution.

III. The stay must be vacated because the Eleventh Circuit did not address
the remaining requirements for a stay of execution, and the stay will
substantially harm the public and the States interest in a timely
enforcement of a criminal judgment.

This Court has held that [b]oth the State and the victims of crime have an

important interest in the timely enforcement of a sentence. Hill v. McDonough,

547 U.S. 573, 584 (2006). For this reason, equity must be sensitive to the State's

strong interest in enforcing its criminal judgments without undue interference from

the federal courts. Id. Further, [a] court considering a stay must also apply a

strong equitable presumption against the grant of a stay where a claim could have
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been brought at such a time as to allow consideration of the merits without requiring

entry of a stay. Id. (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)).

The Eleventh Circuit also fundamentally erred by failing to address whether

the grant of the stay would substantially injure the other parties interested in the

proceeding, as well as the public interest at stake in this case. Nken, 556 U.S. at

434. The court failed to even mention the strong interest that the State and the

victims of Melsons crime have in enforcing its criminal judgments. Hill, 547 U.S.

at 584. The Eleventh Circuits failure to follow this Courts precedent in this regard

alone requires the stay to be vacated.

In a footnote, the Eleventh Circuit noted that [i]n the circumstances of this

case, the remaining factors counsel the granting of a stay, Or at 4, n.4, but again the

Court provided absolutely no reason why these factors supported the grant of a stay.

Apart from the courts failure to articulate a reason, the lower court was wrong.

Without question, the public interest is in favor of carrying out Melsons lawful

execution, and the State and the victims of his crime would be harmed by delaying

his sentence from being carried out. This Court has held that the States strong

interest in carrying out a sentence of death in a timely manner acquires an added

moral dimension when post-conviction proceedings have run their course.

Calderon v. Thompson, 523 U.S. 538, 556 (1998). Melson has been on death row

for over twenty-one years for a crime he committed in 1994. His crime was

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particularly heinous, involving an execution-like killing of three restaurant

employees that he had forced into a freezer at gunpoint. His conviction is valid, and

a competent state court with jurisdiction over his case properly set his execution date

according to Alabama law. This Court should strongly consider Alabamas interest

in enforcing its criminal judgment in weighing the equities to vacate the stay.

Further, the States interest in the timely enforcement of criminal judgments

is even stronger given that Melsons execution date has been set once before. See

Order, Ex parte Melson, No. 1981463 (Ala. Jan. 11, 2010). The State first moved to

set Melsons execution date again on February 26, 2016. Despite knowing that his

execution date was imminent for a considerable time, Melson delayed in filing his

method-of-execution lawsuit until April 2016, (1) nearly three years after his

conventional appeals had ended (including fifteen years since his direct appeals

concluded), (2) nineteen months after the ADOCs September 2014 addition of

midazolam to its protocol, (3) over ten months after this Court decided Glossip, and

(4) nearly two months after the State originally moved the Alabama Supreme Court

to set his execution date.

These factors weigh heavily against the grant of a stay, and the Eleventh

Circuit was wrong to ignore them. If the stay is allowed to stand, Melsons execution

will be delayed many months, if not years. The State, the victims families, and the

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surviving victim in this case have waited long enough for justice to be delivered.

This Court should vacate the lower courts stay.

CONCLUSION

The State respectfully requests that this Honorable Court vacate the stay of

execution entered by the Eleventh Circuit.

Respectfully submitted,

Steven T. Marshall
Alabama Attorney General

Andrew Brasher
Alabama Solicitor General

s/Thomas R. Govan, Jr.


Thomas R. Govan, Jr.
Deputy Attorney General

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CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of June, 2017, I did serve a copy of the

foregoing on the attorney for the Petitioner, by electronic mail addressed as follows:

John Palombi
John_Palombi@fd.org

Spencer J. Hahn
Spencer_Hahn@fd.org

s/Thomas R. Govan, Jr. _


Thomas R. Govan, Jr.
Deputy Attorney General
Counsel of Record *

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-3637 Fax
tgovan@ago.state.al.us

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