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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
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
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
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
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
2
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
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
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STATEMENT OF THE CASE
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
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.
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.
5
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
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
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
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
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.).
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
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
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
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).
7
Critically, Melson bears the burden of showing that the circumstances justify an
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
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
merits. The court failed to cite to any decision from this Court holding that an inmate
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.
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
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
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
cannot justify the issuance of a stay. Even if the Eleventh Circuit were inclined to
grounds, that would still not be a basis to grant Melson a stay of execution. For
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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
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
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
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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
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.
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.
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]
risk of severe pain. Glossip, 135 S. Ct. at 2737. Melson cannot 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-
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
as follows:
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
1315.
...
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?
Doc. 145-6 at 94:695:7. The fact that both of Melsons experts concede that a large
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Moreover, Melson cannot demonstrate a likelihood of success because he
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
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
evidence of any source for the drugs, and that plaintiffs allegation that 500-miligram
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
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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
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
Id. at 7. Thus, the district court dismissed Melsons complaint for the same reasons
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
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
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
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.).
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
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.
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
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.
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
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
Id. n. 6. The court also rejected the argument that adding an allegation about a recent
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
procedure. Id. The Court also rejected the notion that the Eighth Amendment
declined to hold that a consciousness assessment like Alabamas was required under
19
the Eighth Amendment. Id. at 5960; see also Glossip, 135 S. Ct. at 2742. Thus,
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
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-
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
20
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
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
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
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
21
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 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
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
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
22
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.
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
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
23
surviving victim in this case have waited long enough for justice to be delivered.
CONCLUSION
The State respectfully requests that this Honorable Court vacate the stay of
Respectfully submitted,
Steven T. Marshall
Alabama Attorney General
Andrew Brasher
Alabama Solicitor 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
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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