Petition for Rehearing — Donald Ray Middlebrooks, Petitioner v. Tony Mays, Acting Warden

CAPITAL CASE

No. 17-5592

IN THE

SUPREME COURT OF THE UNITED STATES

DONALD MIDDLEBROOKS,

Petitioner

vs.

TONY MAYS, Acting Warden,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR REHEARING

* Paul R. Bottei

Gretchen L. Swift

Office of the Federal Public Defender

Middle District of Tennessee

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

*Counsel Of Record

In Hidalgo v. Arizona, U.S. No. 17-251, this Court is being asked to reconsider the

constitutionality of the death penalty in Arizona and in general, as Hidalgo maintains that

the death sentence is arbitrary and irrational, and constitutes cruel and unusual

punishment. See Pet. for Cert. in Hidalgo v. Arizona, O.T. 2017, No. 17-251, pp. 8-9, 10-16,

21-34. On December 6, 2017, this Court just called for the record to examine those issues

more closely.

Inhis petition for writ of certiorari, Donald Middlebrooks has maintained that he has

suffered the very violation of the Eighth Amendment that Hidalgo maintains infects the

entire system. Relying on Booth v. Maryland, 482 U.S. 496 (1987), Middlebrooks has

asserted that his death sentence is arbitrary, capricious, and cruel and unusual under the

Eighth Amendment, because it was based on pointed prosecutorial argument that death

should be imposed, as that was the request of the victim’s mother. As this Court has made

clear in Booth and its progeny (e.g., Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991)), the

admission of such evidence violates the Eighth Amendment because it “creates a

constitutionally unacceptable risk that the jury may impose the death penalty in an

arbitrary and capricious manner.” Booth, 482 U.S. at 503.

Thus, while Hidalgo maintains that the death sentence in general violates the Eighth

Amendment because it is imposed in an “arbitrary” and “irrational” manner (Pet. for Cert.

in Hidalgo v. Arizona, O.T. 2017, No. 17-251, pp. 8-9), Donald Middlebrooks’ case presents

a specific proven instance of the arbitrary and irrational infliction of the death sentence.

While Hidalgo further maintains that the death penalty is cruel and unusual because, in

part, it is imposed based upon “caprice” (Id., p. 28), Middlebrooks has provided this Court

a specific instance of such caprice that violates the Eighth Amendment in his case.

Accordingly, should this Court grant certiorari in Hidalgo to consider whether the

death sentence is arbitrary or capricious, or cruel and unusual, this Court should hold this

petition for rehearing pending the disposition of Hidalgo. Were this Court to grant

certiorari to determine whether the death penalty violates the Eighth Amendment, a

fortiori, Donald Middlebrooks may be entitled to relief as well, where he has established a

specific Eighth Amendment violation in this case. The principles this Court would enunciate

and apply in Hidalgo would necessarily inform the ultimate determination whether

Middlebrooks should be accorded relief.

This Court, therefore, should hold this petition for rehearing pending the final

disposition of Hidalgo. Ifthis Court grants certiorari in Hidalgo, this Court should hold this

petition for rehearing, and then after any decision in Hidalgo, this Court should grant this

petition for rehearing, vacate its prior order denying certiorari, grant Donald Middlebrooks’

petition for writ of certiorari, and then vacate and remand for further consideration in light

of Hidalgo. Should Hidalgo be able to secure relief where he has been convicted of multiple

homicides with multiple aggravating circumstances, a fortiori, Donald Middlebrooks would

be entitled to relief where he has received the death sentence for a single homicide with a

single aggravating circumstance, resulting from a clear Booth violation.

CONCLUSION

This Court should hold this petition for rehearing pending the final disposition of

Hidalgo. Should this Court grant certiorari in Hidalgo, it should hold this petition for

rehearing, and following any decision in Hidalgo, the Court should grant rehearing, vacate

its prior order denying certiorari, grant Donald Middlebrooks’ petition for writ of certiorari,

and then vacate and remand for further consideration in light of Hidalgo.

Respectfully Submitted,

* Paul R. Bottei

Gretchen L. Swift

Office of the Federal Public Defender

Middle District of Tennessee

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing petition for rehearing was served upon counsel

for Respondent, Jennifer Smith, 425 Fifth Avenue North, Nashville, Tennessee 37243, this

29th day of December, 2017.

Paul R. Bottei

CERTIFICATE

I certify that this petition for rehearing complies with United States Supreme Court

Rule 44.2, is restricted to grounds specified by that rule, and is presented in good faith and

not for delay.

Paul R. Bottei