Petition for Writ of Certiorari — Roy Lee Ward, Petitioner v. Robert E. Carter, Jr., Commissioner, Indiana Department of Correction, et al.

No. _________

In the

Supreme Court of the United States

_______________

ROY WARD,

Petitioner,

v.

ROBERT CARTER, JR. and

RON NEAL,

Respondents.

_______________

On Petition for a Writ of Certiorari

to the Indiana Supreme Court

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

David W. Frank

Counsel of Record*

(United States Supreme Court Bar

admission pending)

Christopher C. Myers & Associates

809 South Calhoun Street, Suite 400

Fort Wayne, IN 46802

(260) 424-0600

dfrank@myers-law.com

Counsel for Petitioner

i

QUESTION PRESENTED

CAPITAL CASE

The State of Indiana recognizes no constitutional obligation to notify

condemned prisoners of the lethal substances it will use to execute them.

The question presented is:

Whether the Due Process Clause of the Fourteenth Amendment to the United

States Constitution entitles condemned state prisoners to notice of the lethal

substances a state will use to execute them.

ii

PARTIES TO THE PROCEEDINGS

Petitioner, the plaintiff in the state trial court, the appellant in the Indiana

Court of Appeals, the respondent on petition to transfer to the Indiana Supreme

Court, and the appellant at oral argument and on petition for rehearing in the

Indiana Supreme Court, is Roy Ward, a state prisoner held in Indiana State Prison

in LaPorte County, Indiana.

Respondents, the defendants in the state trial court, the appellees in the

Indiana Court of Appeals, the petitioners on petition to transfer to the Indiana

Supreme Court, and the appellees at oral argument and on petition for rehearing in

the Indiana Supreme Court, are Robert Carter, Jr., in his official capacity as

commissioner of the Indiana Department of Correction, and Ron Neal, in his official

capacity as warden of Indiana State Prison. Robert Carter, Jr. replaced Bruce

Lemmon, former commissioner of the Indiana Department of Correction, as a

respondent in this litigation at the Indiana Court of Appeals stage after Mr. Carter

was appointed as the new commissioner of the department in January 2017.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................ i

PARTIES TO PROCEEDINGS .................................................................................... ii

TABLE OF AUTHORITIES ........................................................................................ iv

PETITION FOR WRIT OF CERTIORARI .................................................................. 1

OPINIONS AND ORDERS BELOW ............................................................................ 1

JURISDICTION ............................................................................................................ 1

CONSTITUTIONAL PROVISION INVOLVED .......................................................... 1

STATEMENT ................................................................................................................ 1

REASONS FOR GRANTING THIS PETITION. The Indiana Supreme Court

decided Indiana has no independent obligation under the Due Process Clause of the

Fourteenth Amendment to notify condemned state prisoners of the lethal

substances the state will use in executions. The state supreme court’s decision is in

conflict with relevant decisions of this Court ............................................................... 4

1. Relevant decisions of the Court presume there is a right to notice ................... 5

2. Rejection of a notice right conflicts with relevant decisions of the Court ......... 8

CONCLUSION ............................................................................................................ 14

APPENDIX

Appendix A. Opinion of the Indiana Supreme Court ............................................... 1a

Appendix B. Opinion of the Indiana Supreme Court, Denying Rehearing ........... 12a

Appendix C. Opinion of the Indiana Court of Appeals ........................................... 13a

Appendix D. Opinion of the Indiana Circuit Court, LaPorte County .................... 23a

iv

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma, 470 U.S. 68 (1985) ......................................................................... 10

Armstrong v. Manzo, 380 U.S. 545 (1965) ......................................................... 5, 13-14

Baldwin v. Hale, 68 U.S. 223 (1863) ............................................................................ 6

Baze v. Rees, 553 U.S. 35 (2008) .............................................................................. 9-10

Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985) .................. 5-6, 10-11

Davidson v. New Orleans, 96 U.S. 97 (1877) ............................................................ 6-7

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................ 9-10

Frank v. Mangum, 237 U.S. 309 (1915) ..................................................................... 11

Fuentes v. Shevin, 407 U.S. 67 (1972) .......................................................................... 6

Genesis HealthCare Corp. v. Symczyk, 569 U.S. ___, 133 S.Ct. 1523 (2013)............. 13

Glossip v. Gross, 576 U. S., ___, 135 S. Ct. 2726 (2015) .............................................. 9

Goss v. Lopez, 419 U.S. 565 (1975) ............................................................................. 11

Gregg v. Georgia, 428 U.S. 153 (1976) ........................................................................ 10

Hall v. Florida, 572 U.S. ___, 134 S.Ct. 1986 (2014) ................................................... 8

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ..................................................................... 5

Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454 (1989) ................................................ 7-8

Joint Anti-Fascist Comm. v. McGrath, 341 U.S. 123 (1951) .................................... 5-6

v

TABLE OF AUTHORITIES - Continued

Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................... 5, 7, 10-12

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978) .............................. 6, 11

Morrissey v. Brewer, 408 U.S. 471 (1972) ..................................................................... 7

Pollard v. United States, 384 F.Supp. 304 (M.D. Ala. 1974)...................................... 13

Solesbee v. Balkcom, 339 U.S. 9 (1950) ................................................................. 10-11

Saenz v. State, 479 S.W.3d 939 (Tex. Ct. App. 2015) ................................................ 13

U.S. v. Lee, 744 F.2d 1124 (5th Cir. 1984) .................................................................. 13

Vitek v. Jones, 445 U.S. 480 (1980) .............................................................................. 8

Ward v. Carter, 90 N.E.3d 660 (Ind. 2018) .................................................................. 4

Ward v. Carter, 79 N.E.3d 383 (Ind. Ct. App. 2017) .................................................... 2

Washington v. Harper, 494 U.S. 210 (1990) ................................................................ 8

Wilkinson v. Austin, 545 U.S. 209 (2005) .......................................................... 7, 9, 11

Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................. 7-8

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV ........................................................................................passim

U.S. Const. amend. VIII .......................................................................................... 9-10

CODES, STATUTES, AND RULES

28 U.S.C. § 1257(a) ........................................................................................................ 1

vi

TABLE OF AUTHORITIES - Continued

42 U.S.C. § 1983 ............................................................................................................. 2

Ind. Code Ann. §§ 4-22-2 et seq.. ................................................................................... 4

Ind. Code Ann. § 35-38-6-1 ...................................................................................... 9, 14

Indiana Rule of Trial Procedure 12(B)(6) ..................................................................... 2

1

PETITION FOR WRIT OF CERTIORARI

Petitioner Roy Ward respectfully petitions for a writ of certiorari to review

the judgment of the Indiana Supreme Court.

OPINIONS AND ORDERS BELOW

The opinion of the Indiana Supreme Court is reported at 90 N.E.3d 660. See

App. 1a. The opinion of the Indiana Court of Appeals is reported at 79 N.E.3d 383.

See App. 13a. The opinion of the Indiana Circuit Court of LaPorte County is

unpublished but included in the Appendix. See App. 23a.

JURISDICTION

The judgment of the Indiana Supreme Court was entered on February 13,

2018, and rehearing was denied on April 23, 2018. This Court has jurisdiction to

grant a writ of certiorari to review the judgment of the Indiana Supreme Court

under 28 U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

Section 1 of the Fourteenth Amendment to the United States Constitution

provides in relevant part: “No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without due process of law . . .”

STATEMENT

Petitioner Roy Ward (“Petitioner”), a state prisoner who is under sentence of

death and incarcerated by the State of Indiana’s Department of Correction at

Indiana State Prison in LaPorte County, Indiana, filed his complaint against

2

Respondents, the commissioner of the Indiana Department of Correction, now

Robert Carter, Jr., and the warden of Indiana State Prison, Ron Neal

(“Respondents”), in the LaPorte Circuit Court on December 22, 2015 alleging that

they had failed to provide adequate due process in their selection of the lethal

substances with which they intend to execute him in violation of the Due Process

Clause of the Fourteenth Amendment to the U.S. Constitution and state law.

Respondents’ Indiana Trial Rule 12(b)(6) Motion to Dismiss Petitioner’s federal Due

Process claim brought pursuant to 42 U.S.C. § 1983 as well as his state law claims

was granted by the state trial court on July 13, 2016. See App. 23a-26a. The state

trial court held, following oral argument, that Petitioner’s due process rights “have

been met when the Court held a hearing on the matter [Respondent’s Motion to

Dismiss] on June 24, 2016. Plaintiff appeared and was able to be heard by the

Court. Therefore, Plaintiff’s due process rights have not been violated.” Id. 25a.

Petitioner appealed the trial court’s dismissal of his federal constitutional

claim and state law claims. On June 1, 2017, following oral argument, the Indiana

Court of Appeals in Ward v. Carter, 79 N.E.3d 383 (Ind. Ct. App. 2017) reversed the

state trial court’s order dismissing Petitioner’s suit and remanded the case on one of

his state law claims without reaching his Fourteenth Amendment Due Process

claim. See App. 13a-22a. As the state appellate court noted: “Because we have

found that Ward’s complaint prevails based on relevant [state] statutory language,

we need not consider his due process arguments.” Id. 22a n.6.

3

Respondents petitioned the Indiana Supreme Court for transfer on July 3,

2017. Respondents did not address Petitioner’s federal Due Process Clause claim

either in their petition to transfer or in their reply brief. Petitioner raised his

federal constitutional claim in his response in opposition to Respondents’ petition to

transfer.

On September 7, 2017, the Indiana Supreme Court granted Respondents’

petition to transfer and, on October 5, 2017, the state supreme court held oral

argument. At oral argument, Respondents notified the Court that they were

selecting lethal substances that they intended to use for the executions of

condemned state prisoners, including Petitioner, but declined to identify the

substances. To date, Respondents have not disclosed the identity of the lethal

substances. Respondents contended at oral argument that the only question for the

Indiana Supreme Court to consider in reviewing Petitioner’s claims was what

procedural process Petitioner was entitled to in the Indiana Department of

Correction’s selected method of lethal injection. As Respondents argued: “What or

what was not done in this particular protocol is largely beside the point. The

question is going forward what will the [Indiana] Department [of Correction] need

to do when it identifies a new execution procedure.”1 Respondents did not concede

Petitioner is entitled by right to any notice whatsoever of the identity of the lethal

Indiana Supreme Court online portal of oral arguments in Roy Ward v. Robert Carter, Jr., et al.,

46S03-1709-PL-00569 (Ind. Oct. 5, 2017), available at

https://mycourts.in.gov/arguments/default.aspx?&id=2146&view=detail&yr=&when=&page=3&court

=sup&search=&direction=%20ASC&future=False&sort=&judge=&county=&admin=False&pageSize

=20

1

4

substances they will use in Petitioner’s execution. Petitioner raised his federal

constitutional claim at oral argument.

On February 13, 2018, the Indiana Supreme Court issued its Opinion in

Ward v. Carter, 90 N.E.3d 660 (Ind. 2018) affirming the trial court’s dismissal of

Petitioner’s federal Due Process Clause claim, as well as his state law claims,

against Respondents. See App. 1a-11a. The Indiana Supreme Court’s decision

rejected Petitioner’s claim that he had an independent federal due process right to

notice of the lethal substances with which the state intended to execute him

separate from the state statutory claim he brought under the Indiana

Administrative Rules and Procedures Act, Ind. Code §§ 4-22-2 et seq. (“ARPA”).

The state supreme court decided that Petitioner’s “federal constitutional claims

cited only due process violations, which hinged upon whether the Department’s

lethal injection protocol amounted to a rule subject to ARPA. Since we hold the

Department protocol does not carry the effect of law and therefore is not a rule

subject to ARPA, his constitutional claims necessarily fail.” Id. 11a.

On April 23, 2018, the Indiana Supreme Court denied Petitioner’s Petition for

Reconsideration of dismissal of his Fourteenth Amendment Due Process claim. See

App. 12a.

REASONS FOR GRANTING THE PETITION

Petitioner respectfully petitions for a writ of certiorari to review the judgment

of the Indiana Supreme Court.

5

The Indiana Supreme Court has decided Indiana has no independent

obligation under the Due Process Clause of the Fourteenth Amendment to the

United States Constitution to notify condemned prisoners of the lethal substances

the state will use for executions. Respectfully, the state supreme court’s decision

must be in conflict with relevant decisions of this Court. The Court here should

grant review and hold that the Due Process Clause of the Fourteenth Amendment

entitles condemned state prisoners to the right to meaningful notice of the lethal

substances a state will use to execute them.

1. Relevant decisions of the Court presume there is a right to notice.

The Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution provides: “No state shall . . . deprive any person of life, liberty, or

property without due process of law”. U.S. Const. amend. XIV. This Court has

found that in order to receive due process of law, a person must necessarily have

meaningful notice of a state’s intended deprivation of life, liberty, or property and

the opportunity to be heard to object to the intended deprivation. See Hamdi v.

Rumsfeld, 542 U.S. 507, 533 (2004); Cleveland Bd. of Education v. Loudermill, 470

U.S. 532, 541 (1985); Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Without

meaningful notice, coupled with the meaningful opportunity to be heard, prior to

the state’s intended deprivation, a person is denied due process of law. See

Mathews v. Eldridge, 424 U.S. 319, 348-49 (1976). “[A] person in jeopardy of serious

loss be given notice of the case against him and opportunity to meet it.” Joint AntiFascist Comm. v. McGrath, 341 U.S. 123, 171-72 (1951) (Frankfurter, J.,

6

concurring). “Secrecy is not congenial to truth-seeking and self-righteousness gives

too slender an assurance of rightness.” Id. at 172.

The right under the Due Process Clause to be meaningfully heard prior to

state deprivation cannot be separated from the right to meaningful notice of the

intended deprivation. See Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972). “For more

than a century the central meaning of procedural due process has been clear:

‘Parties whose rights are to be affected are entitled to be heard; and in order that

they may enjoy that right they must first be notified.’” Id. at 80 (quoting Baldwin v.

Hale, 68 U.S. 223, 233 (1863)). The right to meaningful notice is central to due

process under law and a prerequisite to the right to a meaningful opportunity to be

heard. Notice is necessarily the means by which a state should “apprise the affected

individual of, and permit adequate preparation for, an impending hearing.”

Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 14 (1978). “The essential

requirements of due process, and all that respondents seek . . . are notice and an

opportunity to respond. The opportunity to present reasons, either in person or in

writing, why proposed action should not be taken is a fundamental due process

requirement.” Loudermill, 470 U.S. at 546. “If the right to notice and a hearing is

to serve its full purpose, then, it is clear that it must be granted at a time when the

deprivation can still be prevented.” Fuentes, 407 U.S. at 81; see also Hale, 68 U.S.

at 233 (“Common justice requires that no man shall be condemned in his person or

property without notice and an opportunity to make his defense.”); Davidson v. New

Orleans, 96 U.S. 97, 107 (1877) (process that is “arbitrary, oppressive, and unjust”

7

does not suffice as “due process of law”) (Bradley, J., concurring). Without specific,

actual, and meaningful notice of a state’s intended deprivation, a person is not able

to meaningfully exercise his procedural rights under the U.S. Constitution.

To establish a violation of the right to due process under the Fourteenth

Amendment generally, a person must show, first, that the state’s intended

deprivation interferes with his life, liberty, or property interests, and, second, that

the state’s notice of intended deprivation or opportunity for hearing is not

sufficiently meaningful. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460

(1989); see also Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (Prisoners “may not be

deprived of life, liberty, or property without due process of law.” (citations omitted)

(procedural due process required prior to revocation of prisoner’s jail credit time);

Wilkinson v. Austin, 545 U.S. 209, 221, 224, (2005) (procedural due process required

prior to prisoner’s transfer to high-security prison); Morrissey v. Brewer, 408 U.S.

471, 483-90 (1972) (procedural due process required prior to revocation of prisoner’s

parole). A court will consider three factors to determine whether the state’s notice

and opportunity for hearing prior to the intended deprivation are sufficiently

meaningful: (1) the nature of a person’s interests affected by the state’s procedure;

(2) the risk of error created by the state’s procedure; and (3) the state’s interests in

maintenance of its procedure. See Eldridge, 424 U.S. at 335. The relevant decisions

of this Court recognize that specific, actual, and meaningful notice of a state’s

intended deprivation are necessary for a person to meaningfully exercise his right to

due process under the United States Constitution.

8

2. Rejection of a notice right conflicts with relevant decisions of the Court.

The Court should grant review in this case to clarify and hold that the Due

Process Clause of the Fourteenth Amendment to the U.S. Constitution entitles a

condemned state prisoner to the right to meaningful notice of the lethal substances

with which a state intends to execute him. Respectfully, the Indiana Supreme

Court’s rejection of this independent right to notice conflicts with the relevant

decisions of the Court that find meaningful notice prior to deprivation an essential

requirement of due process under the Fourteenth Amendment.

Here, Petitioner’s right to meaningful notice under the Due Process Clause of

the Fourteenth Amendment is at issue because his life and liberty interests are

implicated by the state’s intended execution of him by injection of lethal substances

into his body. See Thompson, 490 U.S. at 460; McDonnell, 418 U.S. at 556. First,

Petitioner has life and liberty interests in notice of the lethal substances with which

the State of Indiana intends to execute him. See e.g., Washington v. Harper, 494

U.S. 210, 229 (1990). “[N]otice is essential to afford the prisoner an opportunity to

challenge the contemplated action and to understand the nature of what is

happening to him.” Vitek v. Jones, 445 U.S. 480, 496 (1980); see also Hall v.

Florida, 572 U.S. ___, 134 S.Ct. 1986, 2001 (2014) (“The death penalty is the gravest

sentence our society may impose. Persons facing that most severe sanction must

have a fair opportunity to show that the Constitution prohibits their execution.”).

Without the right to meaningful notice of the lethal substances with which the

State of Indiana will execute him, any potential Eighth Amendment challenge by

9

Petitioner to the use of a particular substance is effectively blocked by the state

because, lacking notice of the lethal substances the state intends to use, he

necessarily cannot make out a claim against the state’s lethal injection protocol

under the requirements set out by this Court. See Glossip v. Gross, 576 U. S., ___,

135 S. Ct. 2726, 2737 (2015); Baze v. Rees, 553 U.S. 35, 47-50 (2008). Notice of the

lethal substances with which the State of Indiana intends to execute Petitioner are

necessary for him to meaningfully exercise his procedural rights under the

Fourteenth Amendment to U.S. Constitution.

Second, the state’s notice policy at present is not meaningful because, other

than the fact that by statute Petitioner is on notice he will executed by lethal

injection, he has been provided no notice, and the state recognizes no such notice, of

the lethal substances with which he will be injected. See Ind. Code § 35-38-6-1(a)

(“The punishment of death shall be inflicted by intravenous injection of a lethal

substance or substances into the convicted person: (1) in a quantity sufficient to

cause the death of the convicted person; and (2) until the convicted person is dead.”).

The state’s policy of providing no notice of the substances it will use in its lethal

injection protocol fails to satisfy the requirements of due process. See Austin, 545

U.S. at 220-24. The State of Indiana’s notice of policy is of particular concern under

the Fourteenth Amendment as the “heightened concern for fairness and accuracy

that has characterized our review of the process requisite to the taking of a human

life” requires “‘respect for the basic ingredient of due process, namely, an

opportunity to be allowed to substantiate a claim before it is rejected.’” Ford v.

10

Wainwright, 477 U.S. 399, 410, 414 (1986) (quoting Solesbee v. Balkcom, 339 U.S. 9,

23 (1950) (Frankfurter, J., dissenting)). It may go without saying that meaningful

notice of the intended deprivation in the immediate matter is of no use to Petitioner

after the infliction of the state’s intended deprivation.

Review of the three factors outlined in Mathews v. Eldridge show condemned

state prisoners, including Petitioner, must have meaningful notice of the lethal

substances the state will use to execute them in order to exercise their procedural

rights under the Due Process Clause of the Fourteenth Amendment to U.S.

Constitution. First, a condemned prisoner’s interests in his life and liberty are

necessarily at issue where he will be executed by injection through use of unknown

substances. Eldridge, 424 U.S. at 335. A condemned prisoner has an interest in

not being executed in a manner that violates the Eighth Amendment to the U.S.

Constitution. See Gregg v. Georgia, 428 U.S. 153, 169-73 (1976) (plurality); Baze,

553 U.S. at 49. Without a right to notice, a state may deny a condemned prisoner

procedure to bring a constitutional challenge by withholding notice of the lethal

substances it intends to use in executions and thereby extinguish any potential

claims against the lethal injection protocol. A state deprivation “that places an

individual’s life or liberty at risk is almost uniquely compelling.” Ake v. Oklahoma,

470 U.S. 68, 78 (1985). The U.S. Supreme Court has recognized the protections of

the Due Process Clause in far less consequential assertions to a liberty interest.

See, e.g., Loudermill, 470 U.S. at 538-41; (liberty interest in civil servant job

protection); Memphis Light, 436 U.S. at 9012 (liberty interest in receiving public

11

utility services); Goss v. Lopez, 419 U.S. 565, 572-76 (1975) (liberty interest in

attending public school). “It cannot be that the Court is more concerned about

property losses that are not irremediable than about irretrievable human claims.”

Solesbee, 339 U.S. at 23.

An analysis of the remaining two factors outlined in Mathews v. Eldridge

further demonstrate that the interests at stake in a state’s intended lethal injection

protocol necessitate that condemned state prisoners, including Petitioner, have a

right under the Due Process Clause of the Fourteenth Amendment to the U.S.

Constitution to notice of the lethal substances a state intends to use to execute

them. The risks to a condemned prisoner’s interests are great. A state’s interests

in refusing to provide any notice whatsoever of the lethal substances to be used are

minimal. See Eldridge, 424 U.S. at 335. A condemned prisoner’s ability to object to

a potentially unconstitutional method of lethal injection is eliminated under a nonotice policy, here maintained by the State of Indiana. See Wilkinson, 545 U.S. at

221. A state refusing to provide notice has no apparent countervailing interests in

withholding notification, other than that of shielding itself from litigation. The Due

Process Clause requires “the fundamental rights of the prisoner shall not be taken

from him arbitrarily or without the right to be heard.” Frank v. Mangum, 237 U.S.

309, 334-35 (1915). “The right to be heard before being condemned to suffer

grievous loss of any kind . . . is a principle basic to our society. The fundamental

requirement of due process is the opportunity to be heard at a meaningful time and

in a meaningful manner.” See Eldridge, 424 U.S. at 333 (citations and quotation

12

marks omitted). The right to notice of the lethal substances in the State of

Indiana’s lethal injection protocol is inherent in Petitioner’s right to due process

under the Fourteenth Amendment to the U.S. Constitution.

To be clear, Petitioner is not requesting the Court grant his petition in order

to expound upon the precise contours, limits, and reaches of his right to notice.

Rather, because the State of Indiana has rejected the assertion that this

independent right exists, Petitioner asks the Court to correct the state’s

assumption, made in contradiction to relevant decisions by this Court, that the Due

Process Clause does not reach through the closed doors of the execution chamber in

LaPorte County, Indiana. The relevant decisions of this Court recognize the

specific, actual, and meaningful independent right to notice under the Fourteenth

Amendment that Petitioner asserts.

Presently, the State of Indiana’s rejection of an independent right to notice

permits it to select, rescind, alter, and introduce lethal substances in its lethal

injection protocol without a guarantee of any notice to Petitioner whatsoever aside

from what Respondents as they may or may not deem suitable choose to reveal. It

is anticipated Respondents may object to this petition on grounds that at some

unknown future date they may voluntarily reveal to Petitioner the lethal substance

or substances they will use to execute him. They may even, in an effort to moot

Petitioner’s action, suddenly on their own accord offer up for the Court’s review the

lethal substances they to use for execution. But, under their reading of the

Fourteenth Amendment, the identity of these lethal substances would be voluntary

13

revealed and could be voluntarily replaced at any time without notice. And

replaced with what? The State of Indiana does not concede Petitioner has a right to

know. Sodium hypochlorite? See Saenz v. State, 479 S.W.3d 939, 954 (Tex. Ct. App.

2015) (affirming conviction for murders committed through injection of bleach).

Treponema pallidum? See Pollard v. United States, 384 F.Supp. 304, 306 (M.D. Ala.

1974) (finding cause of action for deadly injections of syphilis). Water? U.S. v. Lee,

744 F.2d 1124, 1125 (5th Cir. 1984) (affirming conviction for “torture of prisoners”

through use of “water cure” technique). Without a recognized independent right to

notice, the potential harm of being injected with a constitutionally objectionable

substance, or a substance in constitutionally objectionable quantity, would remain

inherently transitory through execution, and the lethal substances used or not used

could not be ultimately determined until after death. Genesis HealthCare Corp. v.

Symczyk, 569 U.S. ___, 133 S.Ct. 1523, 1531 (2013).

A condemned state prisoner has the right under the Due Process Clause to be

notified, prior to death, of the lethal substances a state will use to execute him.

This notice must meaningful. In Indiana, there is no certainty of any notice at all,

meaningful or otherwise, and, therefore, no certainty of a reasonable and

meaningful opportunity to be heard. “Many controversies have raged about the

cryptic and abstract words of the Due Process Clause but there can be no doubt that

at a minimum they require that deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for hearing appropriate to the

nature of the case. An elementary and fundamental requirement of due process in

14

any proceeding which is to be accorded finality is notice reasonably calculated,

under all the circumstances, to apprise interested parties of the pendency of the

action and afford them an opportunity to present their objections.” Manzo, 380 U.S.

at 550 (citations and quotation marks omitted). The State of Indiana will execute

Petitioner by the injection of lethal substances into his body in a quantity great

enough to produce death. See I.C. § 35-38-6-1(a). The state has provided no notice

of the identity of these lethal substances. None will be required unless this Court

grants review.

Therefore, the Court should grant rehearing to recognize the Due Process

Clause of the Fourteenth Amendment to the United States Constitution entitles a

condemned state prisoner to meaningful notice of the lethal substances with which

a state intends to execute him.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

David W. Frank

Counsel of Record*

(United States Supreme Court Bar

admission pending)

Christopher C. Myers & Associates

809 South Calhoun Street, Suite 400

Fort Wayne, IN 46802

(260) 424-0600

dfrank@myers-law.com

Counsel for Petitioner

July 6, 2018