Petition for Writ of Certiorari — Edmund Zagorski, Petitioner v. Bill Haslam, Governor of Tennessee, et al.

THIS IS A CAPITAL CASE

EXECUTION SET FOR NOVEMBER 1, 2018 AT 7 PM

IN THE

SUPREME COURT OF THE UNITED STATES

No. 18-6530

———————

EDMUND ZAGORSKI,

Petitioner,

v.

BILL HASLAM, et al.,

Respondent.

———————

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

———————

CORRECTED PETITION FOR WRIT OF CERTIORARI

———————

KELLEY J. HENRY*

Supervisory Asst. Federal Public Defender

AMY D. HARWELL

Asst. Chief, Capital Habeas Unit

RICHARD TENNENT

KATHERINE DIX

JAY O. MARTIN

Asst. Federal Public Defenders

810 Broadway, Suite 200

Nashville, TN 37203

Phone: (615) 736-5047

Fax: (615) 736-5265

*Counsel of Record

November 1, 2018

QUESTIONS PRESENTED

1.

Did Glossip v. Gross, 135 S.Ct. 2726 (2015), modify centuries-old

jurisprudence prohibiting involuntary waiver of constitutional protections in the

context of method of execution claims?

2.

Does Stewart v. LaGrand, 526 U.S. 115 (1999), prevent a death-sentenced

inmate from challenging a barbaric method of execution he was coerced into

choosing by threat of an even more-barbarous method because he was prevented

from meeting the alternative-method-pleading-requirement of Glossip by state

secrecy laws and procedural technicalities?

TABLE OF CONTENTS

Questions Presented.................................................................................................. i

Table of Authorities ................................................................................................. iii

Opinions Below ......................................................................................................... 1

Jurisdiction ............................................................................................................... 2

Constitutional and Statutory Provisions Involved ................................................. 2

Statement of the Case .............................................................................................. 3

Reasons Why the Writ Should Be Granted ........................................................... 13

I. The perverse (mis)application of Glossip shields courts from honestly

considering whether a method of execution is cruel and unusual ....................... 13

II. The court should grant certiorari to resolve the tension between Stewart v.

LaGrand, Glossip v. Gross, and Johnson v. Zerbst ............................................... 17

Conclusion............................................................................................................... 23

Certificate of Service .............................................................................................. 24

ii

TABLE OF AUTHORITIES

Abdur’Rahman v. Parker, ___ S.W. 3d. ___, 2018 WL 4858002,

(Tenn. Oct. 8, 2018) ....................................................................................passim

Adams v. United States ex rel McCann, 317 U.S. 269 (1942) .............................. 19

Arizona v. Fulminante, 499 U.S. 279 (1991) ......................................................... 16

Blackburn v. Alabama, 361 U.S. 199 (1960) ......................................................... 16

Bryan v. Moore, 528 U.S. 960 (1999) ....................................................................... 9

Bryan v. Moore, 528 U.S. 1133 (2000) ................................................................ 9,22

Dawson v. State, 554 S.E. 2d 137 (Ga. 2001) .......................................................... 9

E.g. Price v. Dunn, 2017 WL 1013302 (S.D. Ala. March 15, 2017)

aff’d Price v. Comm’r Alabama Dept Corrections, -- Fed Appx.,

2018 WL 4502035 (11th Cir. Sept. 19, 2018) ..................................................... 16

Fierro v. Gomez, 77 F.3d 301 (9th Cir. 1996) ......................................................... 18

Garrity v. State of N.J., 385 U.S. 493 (1967) ........................................................ 15

Glossip v. Gross, 135 S.Ct. 2726 (2015) ..........................................................passim

Graham v. Florida, 560 U.S. 48 (2010) ........................................................ 16,17,22

Guardian News & Media LLC v. Ryan, slip opinion, 2017 WL 4180324

(D.Az. September 21, 2017)............................................................................... 17

Hope v. Pelzer, 536 U.S. 730 (2002)....................................................................... 16

In re Kemmler, 136 U.S. 436 (1890) ....................................................... 14,16,17,22

Iowa v. Tovar, 541 U.S. 77 (2004) .......................................................................... 19

Janus v. Am. Fed’n of State, Cty, & Mun. Employees, Council 31,

138 S.Ct. 2448 (2018) ........................................................................................ 18

Johnson v. Zerbst, 304 U.S. 458 (1938) ................................................................. 18

LaGrand v. Stewart, 133 F.3d 1253 (9th Cir. 1998) .............................................. 18

iii

Maryland v. Shatzer, 559 U.S. 98 (2010) ......................................................... 18,19

McGehee v. Texas Dept. of Criminal Justice, slip opinion, 2018 WL 3996956

(S.D. Texas, Aug. 21, 2018) ............................................................................... 17

Miranda v. Arizona, 384 U.S. 436 (1966) .............................................................. 19

Montejo v. Louisiana, 556 U.S. 778 (2009) ............................................................ 19

Payne v. Arkansas, 356 U.S. 560 (1958) ............................................................... 16

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ................................................ 15

Simmons v. U.S., 390 U.S. 377 (1968) ................................................................... 15

Stanford v. Parker, 266 F.3d 442 (6th Cir. 2001) ................................................... 12

State v. Manta, 745 N.W.2d 229 (Neb. 2008) ..................................................... 9,10

Stewart v. LaGrand, 526 U.S. 116 (1999) ......................................................passim

United States v. Olano, 507 U.S. 725 (1993) ......................................................... 18

U.S. v. Jaackson, 390 U.S. 570 (1968) ................................................................... 15

West v. Schofield, 468 S.W. 3d 482 (Tenn. 2015) .......................................... 3,19,20

West v. Schofield, 519 S.W. 3d 550 (Tenn. 2017) .................................................... 3

Wilkerson v. Utah, 99 U.S. 130, (1878) .................................................. 14,16,17,22

Zagorski v. Haslam, et al., No. 18-6145 (6th Cir. 2018)........................................... 1

Zagorski v. Haslam, et al. No. 3:18-cv-1205 (M.D. Tenn. October 30, 2018) ...... 1,2

Zagorski v. Parker, No. 18-6238, 2018 WL 4900813 (Oct. 11, 2018).................... 21

Zagorski v. State, 983 S.W. 2d 654 (Tenn. 1998), cert denied

528 U.S. 829 (1999) ............................................................................................. 3

CONSTITUTIONAL PROVISIONS AND STATUTES

28 U.S.C. § 1254 ....................................................................................................... 2

iv

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

T.C.A. § 40-23-114 ................................................................................................. 3,6

U.S. Constitution, Amendment VIII...............................................................passim

OTHER AUTHORITIES

Edmund Zagorski has chosen the electric chair over lethal injection.

Will other inmates do the same? Adam Tambourin, The Tennessean,

October 31, 2018 ..................................................................................................... 13

v

THIS IS A CAPITAL CASE

EXECUTION SET NOVEMBER 1, 2018, 7:00 PM

IN THE

SUPREME COURT OF THE UNITED STATES

———————

No. 18-______

———————

EDMUND ZAGORSKI,

Petitioner,

v.

TONY PARKER, et al.,

Respondent.

———————

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENNESSEE SUPREME COURT

———————

PETITION FOR WRIT OF CERTIORARI

———————

Edmund Zagorski respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the court of appeals is unreported. Zagorski v. Haslam, et al.,

No. 18-6145 (6th Cir. 2018). Appendix A. The district court’s entry of judgment as to

Counts I and II of Zagorski’s complaint is unreported. Zagorski v. Haslam, et al, No.

3:18-cv-1205 (M.D. Tenn. October 30, 2018). Appendix B. The Order of the District

Court denying the motion to alter or amend is unreported. Zagorski v. Haslam, et al,

No. 3:18-cv-1205 (M.D. Tenn. October 29, 2018). Appendix C. The District Court’s

Memorandum and Order dismissing counts I and II of the Complaint is unreported.

Zagorski v. Haslam, et al, No. 3:18-cv-1205 (M.D. Tenn. October 26, 2018). Appendix

D.

JURISDICTION

The judgment of the court of appeals was entered on October 31, 2018.

Appendix A. This petition is timely filed pursuant to Supreme Court Rule 30.1.

Jurisdiction is invoked pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment to the United States Constitution provides:

[N]or cruel or unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides:

[N]or shall any State deprive any person of life, liberty, or

property without due process of law[.]

42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any action brought

against a judicial officer for an act or omission taken in such officer's

judicial capacity, injunctive relief shall not be granted unless a

declaratory decree was violated or declaratory relief was unavailable.

2

STATEMENT OF THE CASE

Edmund Zagorski is an inmate under sentence of death. Zagorski v. State,

983 S.W.2d 654 (Tenn. 1998), cert. denied 528 U.S. 829 (1999). This petition relates

solely to the manner in which he will die.

In 2015, Edmund Zagorski was one of thirty-seven plaintiffs, all under

sentence of death, in the case of West v. Schofield, 468 S.W.3d 482, 485 fn. 2 (Tenn.

2015). The plaintiffs contended that death in Tennessee’s electric chair would be

cruel and unusual. Id. at 484. The Tennessee Supreme Court rejected their suit as

unripe, as lethal injection by pentobarbital was the constitutional default option,

and the State would only resort to electrocution if it could not obtain lethal injection

chemicals or if a court found its lethal injection protocol unconstitutional. Id. at 48485; see also T.C.A. § 40-23-114. The court reasoned that the events needed to trigger

use of electrocution might never come to pass and that the pentobarbital protocol “if

administered properly, will likely cause death with minimal pain and with quick

loss of consciousness.” West v. Schofield, 519 S.W.3d 550, 562 (Tenn. 2017).

On January 8, 2018, Tennessee modified its lethal injection protocol to add a

second option, a three-drug protocol using midazolam, vecuronium bromide, and

potassium chloride. R. 1, PageID # 7-8. 1 On February 20, 2018, Mr. Zagorski joined

thirty-two other plaintiffs in filing suit in state court against the midazolam option.

Id. at 8. The inmates submitted that Tennessee’s first enumerated option, singledrug pentobarbital, was a feasible and readily available alternative that had

1 Record citations, unless otherwise noted, will be to the underlying record in the Middle District of

Tennessee, Case 3:18-cv-01205.

3

already been found to be constitutional and pain-free. Abdur’Rahman v. Parker,

___S.W.3d. ___, 2018 WL 4858002, at *3 (Tenn. Oct. 8, 2018).

On March 15, 2018, the Tennessee Supreme Court scheduled Mr. Zagorski to

die on October 11, 2018. R. 1, PageID # 8.

On July 5, 2018, four days before trial was to commence, the State of

Tennessee amended their lethal injection protocol to delete the single-drug

pentobarbital alternative, leaving the midazolam-protocol as the only lethal

injection method. R. 1, PageID # 23. On July 9, 2018, through July 24, 2018—over

ten days of testimony—proof was presented from six expert witnesses, twelve

witnesses to midazolam executions, and three representatives of the State of

Tennessee; 151 exhibits were introduced. R. 1, PageID # 8-9. 2

The proof presented was not rebutted (indeed, in all material respects it was

agreed to by the State’s expert), and it established that:

a.

Midazolam, regardless of dose, does not possess analgesic properties,

and it cannot render a person insensate to pain;

b.

The midazolam is dissolved in 100 ml of pH 3.0 acid, and this acid will

cause pulmonary edema; the condemned’s lungs will fill with fluid, and he

will struggle to breathe; other inmates suffering this edema have “coughed,

gasped, labored to breathe, barked and strained against their restraints;”

c.

Following a three-minute wait, and a medically inappropriate

“consciousness check,” the inmate will be injected with vecuronium bromide,

which will cause paralysis and then suffocation;

2 The complaint misstated the number of eyewitnesses as eleven, forgetting that in addition to eleven

lawyers, plaintiffs also called one investigator.

4

d.

Finally, after two additional minutes of pulmonary edema and

paralysis, the inmate will be injected with potassium chloride, which will

cause excruciating pain, as it “ignites” every nerve fiber in his body.

Id. at 9-11; R. 9, PageID # 65.

On July 26, 2018, the trial court ruled against the plaintiffs. R. 1, PageID #

11. On July 30, 2018, Mr. Zagorski and the majority of other plaintiffs filed notice

of appeal. Id.

On August 9, 2018, Tennessee performed its first execution using midazolam

on a man named Billy Ray Irick. R. 1, PageID # 11. The prison officials did not

follow their protocol. Id. The first dose of midazolam was not prepared until 28

minutes after the execution was set to commence. Id. The backup dose, ostensibly

designed to protect Mr. Irick if he displayed signs of “consciousness,” was never

prepared at all. Id.

Witnesses to Mr. Irick’s execution described what the experts had predicted:

he gasped for breath, coughed, and strained against his restraints. Id. Mr. Irick

was clearly sensate to pain and suffering from pulmonary edema. Id. After the

vecuronium took effect, the degree of suffering he felt from continuing edema, air

hunger, paralysis and the chemical burning of potassium chloride is unknown, but

was inevitably severe and horrific. Id.

On August 13, 2018, the Tennessee Supreme Court “reached down” to take

jurisdiction of Mr. Zagorski’s appeal. Id. at 12. The court set an expedited briefing

schedule, with oral argument set for October 3, 2018—eight days before Mr.

Zagorski’s scheduled execution. Id.

5

On August 30, 2018, with his appeal pending, and his execution looming, Mr.

Zagorski delivered a letter to the Warden of his prison, informing him that he was

unable to choose a method of execution. Id. at 13. Pursuant to Tennessee law, Mr.

Zagorski had the option to accept the default—death by some manner of lethal

injection—or to choose death in the electric chair. Tenn. Code Ann. §§ 40-23-114,

116.

At approximately 4:00 p.m. on October 8, 2018, the Tennessee Supreme

Court issued its decision. Id. It declined to determine whether Tennessee’s

midazolam protocol would cause severe pain, finding this issue “pretermitted” and

moot. Abdur’Rahman v. Parker __ S.W.3d __, 2018 Wl 4858002, at *1, 14-15.

Instead, the court concluded that the inmates had failed to “plead and prove” a

feasible and readily implemented alternative. Id. at *1, 7-15. In reaching this

decision, the court upheld the application of a discretionary Tennessee procedural

bar, Rule 15.02, and declined to consider a two-drug alternative that was feasible

and readily implemented. Id. at *9-12. The court found that the State of

Tennessee’s pre-trial maneuver of removing the single-drug pentobarbital protocol

as an option four days before trial did not excuse the inmates from having failed to

plead an alternative-to-that-alternative prior to trial. Id. at *11-12.

In conclusion, the Tennessee Supreme Court held that “the Plaintiffs failed to

establish that Tennessee’s current three-drug lethal injection protocol constitutes

cruel and unusual punishment.” Id. at *15. Put another way, the Tennessee

Supreme Court held that a discretionary decision of the lower court to apply a

6

procedural rule, and to refuse to consider a clearly feasible and readily implemented

alternative, made it constitutionally acceptable to execute inmates under a protocol

that they had proven was sure or very likely to inflict severe pain, mental anguish

and needless suffering. 3

Within two-hours of the Tennessee Supreme Court finding that the plaintiffs

had not prove the midazolam protocol was unconstitutional, Mr. Zagorski submitted

to the Warden his “Affidavit Concerning Method of Execution,” wherein he chose

death in the electric chair. R. 1, PageID # 13. In this affidavit, he made the

following statement:

By signing this affidavit I am not conceding that electrocution is

constitutional. I believe that both lethal injection and electrocution

violate my rights under the 8th amendment. However, if I am not

granted a stay of execution by the courts, as between two

unconstitutional choices I choose electrocution. I do not waive my right

to continue to appeal my challenge to lethal injection. And, if that

appeal is successful, then I will challenge electrocution as

unconstitutional. I am signing this document because I do not

currently have a stay of execution and I do not want to be subjected to

the torture of the current lethal injection method.

R. 1, PageID # 13-14.

On October 9, 2018, the State declined to honor Mr. Zagorski’s election and

told him he would be killed with midazolam, vecuronium bromide and potassium

chloride. Id. at 14. Mr. Zagorski filed suit in federal district court on October 10,

2018, to enjoin the State from killing him with chemical poisons and to require that

3 The rightness or wrongness of the Tennessee Supreme Court’s decision is not the

basis of this petition. However, their elevation of technical pleading rules of dubious

application over bedrock constitutional protections animates at least one of the

arguments that follows.

7

it use the electric chair. Id. at 14. The court granted a temporary injunction

enjoining prison officials from executing him by lethal injection contrary to his

expressed wishes. Id. Prison officials already had conducted required training on

the use of the chair on September 27, 2018, and tested the chair itself on October

10, 2018. Id. All was set for Mr. Zagorski to die; indeed on the evening of October

11, 2018, this Honorable Court dissolved a separate stay (in his habeas

proceedings—unrelated to this particular litigation), and cleared the way for death

in the chair. However, some hours earlier, the Governor of Tennessee granted a tenday reprieve, apparently so that the electric chair could be made ready for use. R. 1,

PageID # 14. Mr. Zagorski does not know what prevented its use on October 11,

2018.

Mr. Zagorski’s choice of the electric chair was made in light of the alternative.

Id. at 13. If he had not selected electrocution, he would have suffered over 10 to 18

minutes in a manner that was described by the state trial court as “dreadful and

grim.” Id. The three separate and distinct vehicles of suffering, described above,

would all be inflicted upon him—the last two while he appeared insensate and

serene because of the paralytic.

Death in the electric chair was comparatively superior, in Mr. Zagorski’s

estimation. Id. Yet, what he chose was also something he believed was

unconstitutionally cruel and unusual. Id.

8

From an inmate’s perspective there are two major issues with Tennessee’s

electric chair: (1) it is an electric chair, and (2) it is Tennessee’s specific electric

chair.

Following a series of botched electrocutions this Court granted certiorari to

address whether execution by electrocution is unconstitutional under the Eighth

Amendment because it constitutes cruel and unusual punishment and violates

evolving standards of decency. Bryan v. Moore, 528 U.S. 960 (1999). In response to

the grant of certiorari, the state of Florida abandoned electrocution as its default

method of punishment resulting in the case being dismissed. Bryan v. Moore, 528

U.S. 1133 (2000). There has been an overwhelming movement of states

discontinuing use of the electric chair as a means of execution. In 1974, nineteen

states used the electric chair as their sole method of execution. R. 1, PageID # 2122. Today, no state uses it as the primary method, and only a small handful even

keep it as an alternative. Id. The supreme courts of Georgia and Nebraska have

both found the electric chair to be cruel and unusual under their respective state

constitutions. State v. Mata, 745 N.W.2d 229, 278 (Neb. 2008); Dawson v. State,

554 S.E.2d 137, 143-44 (Ga. 2001). Georgia concluded that, factually, the electric

chair carries the “specter of excruciating pain” and the “certainty of cooked brains

and blistered bodies.” Dawson, 554 S.E.2d at 144. Nebraska held it violative of its

state constitution for two major reasons. First:

There is also no question that [the electric chair’s] continued use will

result in unnecessary pain, suffering, and torture for some, but not all

of [the] condemned murderers in this state. Which ones or how many

will experience this gruesome form of death and suffer unnecessarily;

9

and which ones will pass with little conscious suffering cannot be

known.

Mata, 745 N.W.2d at 272.

Second,

Besides presenting a substantial risk of unnecessary pain, we conclude

that electrocution is unnecessarily cruel in its purposeless infliction of

physical violence and mutilation of the prisoner’s body. Electrocution’s

proven history of burning and charring bodies is inconsistent with both

the concepts of evolving standards of decency and the dignity of man.

Id. at 279.

Thus, when Mr. Zagorski chose death in the electric chair, he chose a method

that had been found to cause extreme suffering, and physical mutilation. Yet, he

chose it based on his hope that the duration of suffering would be shorter. R. 1,

PageID # 3.

He also chose it as preferable to the midazolam protocol, despite the fact that

the chair to be used was Tennessee’s electric chair. This chair was designed and

installed by Fred Leuchter, who falsely held himself out to be an electrical engineer.

Id. at 17. He also held himself out to be an expert on the Holocaust (or its absence),

having published a denial report entitled “An Engineering Report on the Alleged

Execution Gas Chambers at Auschwitz, Birkenau, and Majdanek.” Id. But for the

zeal of the State of Massachusetts, this charlatan might still be trying to sell

implements of death. That state forced him into a consent decree wherein he agreed

to cease (1) pretending to be an electrical engineer, and (2) distributing his

Holocaust denial report. Id.

10

For Tennessee, however, the damage was done. Leuchter’s chair has been

tested and found wanting by two separate engineering firms (apparently real ones).

Id. at 17-18. Tennessee has made some of the modifications those engineers

suggested, but not all. Id. at 18. Whatever was done, on October 11, 2018,

Tennessee was not comfortable using it. Id. at 14.

This history of the chair leads to the next developments. On October 22,

2018, the Tennessee Supreme Court issued a new execution date: November 1,

2018. Id. at 15. On October 24, 2018, the State moved the district court to make

permanent its temporary injunction against use of midazolam, and requirement

that the State use the electric chair in Mr. Zagorski’s execution. M.D. Tenn. 3:18-cv01035, R. 15, PageID # 464-68.

On October 26, 2018, with his challenge to the electric chair finally ripe, Mr.

Zagorski did what he had said he would do in his affidavit of October 8, 2018, and

what he had tried to do back in 2014—he filed suit challenging the constitutionality

of the electric chair. R. 1, PageID # 1-33. He also filed suit challenging the coercive

pressure that had been placed upon him, which had compelled him to choose such a

gruesome method of death. R. 1, PageID # 29-30. 4

Within hours of filing suit, the district court dismissed these two counts. R. 8,

PageID # 48-50. In regards to his due process coercion claim, the court found that

4 In a third count, which is not subject to this petition, Mr. Zagorski sued so that

during his execution he would have two attorneys present and/or his attorney(s)

would have access to a telephone, so that his right to access the courts would be

respected. R. 1, PageID # 31.

11

collateral estoppel precluded such suit. Id. at 48-49. As to his challenge to the

electric chair, the court held that Stewart v. LaGrand, 526 U.S. 115, 119 (1999),

required dismissal without consideration for the (in)voluntariness of the alleged

waiver. On October 28, 2018, Mr. Zagorski filed a Motion to Alter or Amend, with

supporting documents. R. 9, PageID # 52-448. On October 29, 2018, the district

court denied this motion. R. 15, PageID # 589-597. Respondents did not file

responses to any of these pleadings. 5

On October 30, 2018, the District Court issued final judgment, and Mr.

Zagorski promptly filed Notice of Appeal. Briefing was completed on October 31,

2018, and the Court of Appeals denied relief at 8:20 p.m. EST that evening, holding

in substantive part:

To prevail on his coercion claim (count I), Zagorski would have to show

that he was coerced to waive his constitutional right against

electrocution—and a challenge to the constitutionality of electrocution

is precisely the one we are bound to conclude Zagorski waived. See

Stanford v. Parker, 266 F.3d 442, 462 (6th Cir. 2001) (“[W]e need not

consider whether electrocution is cruel and unusual punishment

because, for that issue to be relevant, Stanford would first have to

waive it.”) (citing Stewart v. LaGrand, 526 U.S. 115 (1999)). His

standalone Eighth Amendment challenge to his electrocution (count II)

fails for the same reason.

18-6145, R. 11-1, Page 3 (emphasis in original).

5 The district court ordered Respondents to reply only to the access-to-courts claim.

12

The Sixth Circuit did not address the collateral estoppel ground relied upon

by the district court. Id. Similarly, the court did not decide whether Mr. Zagorski

was in fact coerced, or whether that coercion led to his waiver. Id.

By failing to address the substance of the legal arguments presented by

Zagorski in his appeal to the Sixth Circuit (the district court’s error in finding

Count I barred by collateral estoppel and whether the constitution tolerates and

involuntary waiver of a constitutional right), the Court has essentially ruled that

though Zagorski may be legally correct, Glossip v. Gross, 135 S.Ct. 2726 (2015),

modified centuries old jurisprudence mandating that constitutional rights can only

be waived if done so voluntarily.

REASONS WHY THE WRIT SHOULD BE GRANTED

I.

The perverse (mis)application of Glossip shields courts from honestly

considering whether a method of execution is cruel and unusual.

Mr. Zagorski’s coerced choice to die swiftly, but painfully and gruesomely in

the electric chair is not unique. As the media are recognizing, his decision is

consistent with a larger national trend that can only be expected to grow. Adam

Tambourin, Edmund Zagorski has chosen the electric chair over lethal injection.

Will other inmates do the same?, The Tennessean, October 31, 2018, available at

https://www.tennessean.com/story/news/crime/2018/10/31/tennessee-electric-chairlethal-injection-zagorski/1774951002/ (last visited Nov. 1, 2018). Eight inmates in

Alabama have chosen death by lethal gas, rather than execution under a midazolam

protocol that is substantively identical to Tennessee’s. Id.

13

This is the unintended, and largely unanticipated result of Glossip v. Gross :

extremely painful execution methods that would never have been permissible under

In re Kemmler, 136 U.S. 436, 447 (1890) and Wilkerson v. Utah, 99 U.S. 130, 136

(1878) are now deemed “not unconstitutional,” if inmates are unable to carry their

burden on the alternative requirement. Undoubtedly, this court never intended to

condone the intentional infliction of severe pain as constitutional—yet through

(mis)application of Glossip that has now occurred as courts focus exclusively on

alternatives and ignore all proof regarding suffering.

In this case, the Tennessee Supreme Court found it irrelevant to their

decision whether the midazolam-based, three-drug protocol causes severe pain.

Abdur’Rahman v. Parker, – S.W.3d –, 2018 WL 4858002, *1, 7, 13-15 (Tenn. Oct. 8,

2018). The substantive proof regarding the certainty of severe pain, mental

anguish and needless suffering, presented by four experts—including the nations’

leading researcher on midazolam, Dr. David Greenblatt—and from twelve eyewitnesses did not merit a single sentence in the Tennessee Supreme Court’s opinion

Abdur’Rahman at *1-15 (established by omission). 6 Instead, the Tennessee

Supreme Court devoted its analysis to the Glossip “prerequisite” that the inmates

carry their burden to plead and prove a feasible alternative. Id. at *1, 6-7, 9-15. The

court found that the inmates failed to carry this burden—in large part based on

technical Tennessee pleading requirements and discovery rules that prevented

The court merely mentioned that they testified, but the substance of this testimony

was not mentioned. Abdur’Rahman at *3

6

14

examination of the person responsible for purchasing pentobarbital. Id. For this

reason, alone, the court held that “the Plaintiffs failed to establish that Tennessee’s

current three-drug lethal injection constitutes cruel and unusual punishment.” Id.

at *15. 7 Thus, “whether the lethal injection protocol creates a demonstrated risk of

severe pain” was “pretermitted” and made moot. Id. at *14.

The proof that the Tennessee Supreme Court did not address, has been

considered by Edmund Zagorski. While, under the (mis)application of Glossip it

may be legally irrelevant that the three-drug protocol will cause him a “dreadful

and grim” death lasting from 10 to 18 minutes, during which he will face the

certainty of (1) pulmomary edema (drowning in his own fluids), (2) paralysis,

suffocation and air hunger, and (3) excruciating pain from chemical burning—these

realities are very relevant to him, and to other inmates who face such a death. That

this painful and prolonged death was not “established” to be unconstitutional in no

way alters the reality of the suffering it will inflict. And, it is the certainty of that

extreme suffering that acted to coerce Mr. Zagorski to choose a less-awful death in

the electric chair, in violation of his due process rights against such compulsion.

Arizona v. Fulminante, 499 U.S. 279, 287-88 (1991); Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973); U.S. v. Jackson, 390 U.S. 570, 581-82 (1968). Simmons v.

U.S., 390 U.S. 377, 394 (1968) Garrity v. State of N.J., 385 U.S. 493, 498 (1967). It

is that compulsion, which makes any purported waiver of his Eighth Amendment

7 It might bear mention that a failure to prove something unconstitutional, does not establish that it

is constitutional. Criminal defense attorneys are often reminded of this truth when they win an

acquittal, which is (at least in Tennessee) rendered as a finding of “Not Guilty” not one of “Innocent.”

15

rights involuntary and of no significance. Blackburn v. Alabama, 361 U.S. 199

(1960); Payne v. Arkansas, 356 U.S. 560 (1958)

Mr. Zagorski’s predicament is not unusual, and will become more prevalent

as more courts adopt Tennessee’s interpretation of Glossip. In the Eleventh Circuit,

it is now acceptable to conduct a bifurcated trial that focuses solely on the

alternative prong, and to decline to hear any proof regarding pain or suffering. E.g.

Price v. Dunn, 2017 WL 1013302 (S.D. Ala. March 15, 2017) aff’d Price v. Comm’r

Alabama Dept. Corrections, -- Fed.Appx., 2018 WL 4502035 (11th Cir. Sept. 19,

2018). Under such analysis In re Kemmler, Wilkerson and even Graham v. Florida,

560 U.S. 48, 59 (2010) are dead letters. Under this (mis)application of Glossip, the

Eighth Amendment no longer “prohibits the imposition of inherently barbaric

punishments under all circumstances”. Graham, 560 U.S. at 59 (citing Hope v.

Pelzer, 536 U.S. 730 (2002)). Rather, barbaric punishments are fully acceptable

unless inmates can find a willing seller of lethal injection drugs (or some other

method of ending life).

It might need noting that since Glossip was decided no plaintiff, anywhere,

has succeeded in satisfying the alternative requirement. Possibly, state and federal

laws regulating the sale of Schedule II controlled substances (such as pentobarbital

and sodium thiopental) play a role. 8 Perhaps, the desire of pharmacies that would

sell such drugs to maintain anonymity and avoid public notice is significant.

8 As criminal defense attorneys by trade, counsel for Mr. Zagorski are aware that reasonable people

have some reticence about talking to complete strangers about conduct that could carry significant

prison time.

16

McGehee v. Texas Dept. of Criminal Justice, slip opinion, 2018 WL 3996956, at *3

(S.D. Tex. Aug. 21, 2018) (noting that Texas has “acquired pentobarbital from

compounding pharmacies that have attempted to keep their identities secret”). No

doubt, it is due to this desire for anonymity that no less than fourteen states have

adopted secrecy laws that protect the identity of drug suppliers. Guardian News &

Media LLC v. Ryan, slip opinion, 2017 WL 4180324, at *7-8 (D.Az. September 21,

2017) (providing history of laws protecting drug suppliers from identification).

In any event, the inherent hope of Glossip that more humane methods of

execution might be identified by death row inmates has proven to have been in vain.

Instead, the tragic result of lower courts’ (mis)application of this precedent has been

a complete overturning of over one-hundred and forty years of precedent, and an

abandonment of all protections against “inherently barbaric” punishments.

Graham, 560 U.S. at 59; see also In re Kemmler, 136 U.S. at 447; Wilkerson, 99

U.S. at 136.

Review by this court is needed, so that Glossip can be correctly placed within

the larger cannon of Eighth Amendment jurisprudence. What was, arguably, a wise

and common-sense approach to “risks of substantial harm” has been misapplied to

become a warrant for cruelty, and a justification for the abandonment of judicial

review.

II.

The court should grant certiorari to resolve the tension between Stewart v.

LaGrand, Glossip v. Gross, and Johnson v. Zerbst.

Respondents and the district court are incorrect that Stewart v. LaGrand,

526 U.S. 115 (1999), prevents him from bringing an Eighth Amendment challenge

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to being executed in Tennessee’s electric chair. LaGrand only applies to voluntary

waivers. Mr. Zagorski was unconstitutionally coerced to select death in the electric

chair. Such a compelled waiver, aside from violating due process and the

Fourteenth Amendment, does not comport with the rationale of LaGrand, which

involved the voluntary choice to forego a constitutional AND pain-free method of

execution (a lethal injection protocol involving an actual anesthetic, sodium

thiopental), for an obviously more painful method of death—one that had already

been declared unconstitutional—poison gas. LaGrand, 526 U.S. at 119; Fierro v.

Gomez, 77 F.3d 301, 309 (9th Cir. 1996) (finding California’s use of lethal gas to be

cruel and unusual); see also LaGrand v. Stewart, 133 F.3d 1253, 1263-64 (9th Cir.

1998) (history of LaGrand’s choice).

This Court has set a “high standar[d] of proof for the waiver of constitutional

rights” since at least 80 years ago, when it decided Johnson v. Zerbst, 304 U.S. 458

(1938). See Maryland v. Shatzer, 559 U.S. 98, 118 (2010) (Thomas, J., concurring)

(alteration in original). A waiver of constitutional rights “cannot be presumed.”

Janus v. Am. Fed'n of State, Cty., & Mun. Employees, Council 31, 138 S. Ct. 2448,

2486 (2018) (First Amendment context) (citing Zerbst, 304 U.S. at 464). 9 Waiver is

the “intentional relinquishment or abandonment of a known right.” United States v.

Olano, 507 U.S. 725, 733 (1993) (quoting Zerbst, 304 U.S. at 464). Relinquishment

9 Indeed, this Court has created a presumption against finding that a constitutional right has been

waived in some contexts. See, e.g., Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (once an arrestee

asserts Fifth Amendment right to counsel during custodial interrogation, later waiver is presumed

involuntary).

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of constitutional rights must be “voluntary, knowing, and intelligent.” Montejo v.

Louisiana, 556 U.S. 778, 786–88 (2009) (citations omitted). This Court has

“described a waiver of counsel as intelligent when the defendant ‘knows what he is

doing and his choice is made with eyes open.’” Iowa v. Tovar, 541 U.S. 77, 87–88

(2004) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)).

The Zerbst inquiry takes into account the totality of the circumstances surrounding

the waiver—including [in the Miranda context] any improper pressures by police.”

Shatzer, 559 U.S. at 118 (Thomas, J., concurring) (citing Miranda v. Arizona, 384

U.S. 436, 475 (1966)).

Mr. Zagorski did not waive his right to raise an Eighth Amendment challenge

to Tennessee’s electric chair. His election form stating his preference to be

electrocuted instead of poisoned explicitly stated that he was not waiving his right

to challenge the constitutionality of electrocution. As a result, he cannot be said to

have waived his Eighth Amendment right in a manner that was “voluntary,

knowing, or intelligent.” To the contrary, he knew “what he [was] doing” and made

his choice “with eyes open” when he stated his intention to challenge the

constitutionality of Tennessee’s electric chair.

The totality of the circumstances shows that Mr. Zagorski was coerced into

“choosing” to die by electrocution. The State of Tennessee has thwarted each effort

he has made to challenge the constitutionality of Tennessee’s electrocution and its

midazolam-based execution protocol. In 2014, he attempted to challenge the

constitutionality of the electric chair, but his claim was deemed not yet ripe. West v.

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Schofield, 468 S.W.3d 482, 485 (Tenn. 2015). While waiting for the Tennessee

Supreme Court to rule on his challenge to Tennessee’s midazolam-based lethal

injection protocol, on August 30, 2018, Mr. Zagorski informed the Department of

Corrections in a signed affidavit that (1) he would not elect a method of execution as

required by state statute until the Tennessee Supreme Court ruled on his challenge

to Tennessee’s midazolam-based lethal injection protocol, and (2) given the

opportunity, he intended to “challenge electrocution as unconstitutional.” On

October 8, 2018, the Tennessee Supreme Court rendered its decision in Mr.

Zagorski’s lethal injection challenge—just three days before his scheduled

execution. Within hours, Mr. Zagorski informed Respondents of his wish to elect to

be executed by electrocution rather than by Tennessee’s midazolam-based execution

protocol. After Tennessee prison officials refused to honor that request, he filed suit,

and the district court enjoined the State from executing him by lethal injection. On

October 24, 2018, the State then moved the district court to enter a permanent

injunction requiring it not to execute him by lethal injection. On October 26, 2018,

two days after his challenge to Tennessee’s electric chair became ripe, Mr. Zagorski

filed suit, as he had made clear he would.

Mr. Zagorski has also made vigorous efforts to challenge Tennessee’s

midazolam-based lethal injection protocol, to no avail. The State hid its change from

its previous pain-free protocol (pentobarbital) from Mr. Zagorski’s counsel until

January 8, 2018, when it issued an amended protocol with the midazolam-based

three-drug protocol listed as an alternate to its previous pentobarbital protocol. Just

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before releasing this protocol, the State asked the Tennessee Supreme Court for

expedited execution dates for several inmates, in what can only be characterized as

gamesmanship intended to make it difficult for inmates to have sufficient time to

challenge the new protocol. On February 20, 2018, within five weeks of the release

of the January 2018 protocol, Mr. Zagorski and other inmates sued the State of

Tennessee, requesting that the court declare three-drug, midazolam-based protocol.

The plaintiffs submitted that Tennessee’s other option, a single-drug protocol using

pentobarbital satisfied the Glossip alternative requirement. Prior to trial, counsel

for the State, in open court, refused to disavow the intent or ability to use the

single-drug protocol. At the State’s urging, the trial court drastically limited the

inmates’ discovery into the availability of pentobarbital to the State by

misconstruing state law, which fundamentally impaired the inmates’ ability to

prove availability of an alternative method of execution under Glossip. See Zagorski

v. Parker, No. 18-6238, 2018 WL 4900813, at #2 (Oct. 11, 2018) (“When the

prisoners tasked with asking the State to kill them another way are denied by the

State information crucial to establishing the availability of that other means of

killing, a grotesque requirement has become Kafkaesque as well.”).

Then, on July 5, 2018, four days before trial, in what can only be temperately

described as a cynical act of gamesmanship, the State amended its protocol to

remove the plaintiffs’ chosen alternative. This gambit worked, and the State

prevailed—not on the merits of their chosen protocol (which, for all intents and

21

purposes they made no effort to defend)—but through their last-minute removal of a

feasible and readily implemented alternative.

Given this series of events, Mr. Zagorski was coerced into electing to die by

electrocution, which neither he nor other Tennessee death-row inmates have ever

been allowed to challenge – and a method which this Court was poised to rule

unconstitutional in Bryan. This was not a valid waiver of his Eighth Amendment

rights. LaGrand does not prevent him from challenging electrocution in this

context.

In our post-Glossip world, a very painful method of lethal injection appears to

be immune from challenge unless inmates do what Zagorski was unable to do given

the extreme and unfair restrictions placed upon him by the state court, and find a

willing supplier of more benign lethal injection chemicals. Thus, a “choice” to select

a (hopefully) less-painful method of execution (such as the electric chair) does not

presuppose that either the preferred method or the avoided method (midazolam

protocol) do not involve severe pain, mental anguish, and needless suffering.

At the time of LaGrand, prior to the comparative harm and alternative

revolution of Glossip and Baze, courts still applied In re Kemmler, 136 U.S. 436

(1890), Wilkerson v. Utah, 99 U.S. 130 (1878), and even Graham v. Florida, 560

U.S. 48 (2010) to evaluate punishments in a categorical and objective manner. 10 At

the time of LaGrand, courts were only asked to consider whether a particular

10 To be clear, Mr. Zagorski believes that In re Kemmler, Wilkerson, and Graham are all still good law

and controlling authority. He believes that Baze made clear that an inmate’s being exposed to the pain

and suffering of a paralytic and potassium chloride, would violate the Eighth Amendment. Baze, 553

U.S. at 53.

22

punishment was cruel and unusual. Now, post Glossip, the same method of

punishment may be challenged ad infinitum in a series of comparative harm cases,

as inmates (ideally from their perspective) become better at finding purveyors of

less risky and less painful methods of execution.

In this ever-shifting world, a coerced “waiver” cannot pretermit a valid

constitutional challenge to the electric chair. LaGrand is from a different time, and

from different facts, and does not apply here.

CONCLUSION

WHEREFORE, the petition should be granted.

Respectfully submitted,

/s/ Kelley J. Henry

Kelley J. Henry*

Supervisory Assistant Federal Public

Defender, Capital Habeas Unit

Amy D. Harwell

Asst. Chief, Capital Habeas Unit

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Richard L. Tennent

Katherine M. Dix

Jay O. Martin

Asst. Federal Public Defender

Office of the Federal Public Defender

810 Broadway, Suite 200

Nashville, Tennessee 37203

(615) 736-5047

*Counsel of Record

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing petition for writ of certiorari, and

accompanying appendix, were served upon counsel for Respondent, Jennifer Smith,

Assistant Solicitor General, 425 Fifth Avenue North, Nashville, Tennessee, 37203,

via email and United States Mail, this 1st day of November, 2018.

/s/ Kelley J. Henry

Kelley J. Henry

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