Opposition Brief — Patrick H. Murphy, Petitioner v. Bryan Collier, Executive Director, Texas Department of Criminal Justice, et al.

Supreme Court briefSep 27, 2019

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No. 18-9832

IN THE

Supreme Court of the United States

PATRICK HENRY MURPHY,

Petitioner,

BRYAN COLLIER; LORIE DAVIS; BILLY LEWIS,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals for the Fifth Circuit

BRIEF IN OPPOSITION

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

LISA TANNER

Acting Deputy Attorney General

For Criminal Justice

MATTHEW OTTOWAY

Assistant Attorney General

Counsel of Record

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

matthew.ottoway@oag.texas.gov

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

GWENDOLYN S. VINDELL

Assistant Attorney General

Counsel for Respondents

CAPITAL CASE

QUESTIONS PRESENTED

Should this Court grant a writ of certiorari to address the

timeliness of a request for an execution protocol accommodation in a case

that is no longer in a stay posture and therefore moot?

If the propriety of a stay denial question is not moot, should

the Court address it when doing so would have little consequence given

that any future stay request will be evaluated under a different set of

facts?

Does the Court have jurisdiction to consider claims where

there is no final judgment in the district court?

If there is jurisdiction absent final judgment, ought the Court

address claims that neither the district court nor the court of appeals

have passed upon, and that are also barred by limitations and

unexhausted?

Should the Court hear highly fact dependent claims before a

district court has made relevant findings and where the petitioner has

failed to provide the Court with an adequate record to resolve disputes?

TABLE OF CONTENTS

QUESTIONS PRESENTED ...................................................................... i

TABLE OF CONTENTS ...........................................................................ii

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

BRIEF IN OPPOSITION .......................................................................... 1

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

Murphy’s Offense and Postconviction Challenges .......................... 1

II.

The Litigation Preceding His First Execution Setting.................... 2

III.

The Course of Murphy’s Present Lawsuit ....................................... 3

IV.

The Second Execution Setting ......................................................... 6

REASONS FOR DENYING THE PETITION .......................................... 6

Because the Execution Warrant Placing This Case in a Stay

Posture Has Expired, the Case Is Moot ........................................... 7

II.

If This Case Is Not Moot, the Stay Denial Was Not an Abuse

of Discretion, Including the Portion Finding Murphy’s Actions

Dilatory…. ........................................................................................ 9

III.

The Court Lacks Jurisdiction to Consider the Merits of

Murphy’s Claims ............................................................................ 19

IV.

Even if the Court Possessed Jurisdiction to Review the Merits

of Murphy’s Claims, Prudence Favors Restraint in this Case ...... 21

Assuming Jurisdiction and a Lack of Prudential Concerns,

Murphy’s Claims Fail ..................................................................... 23

The claims are unexhausted ................................................. 23

The claims are untimely ....................................................... 25

The claims are without merit ............................................... 28

Establishment Clause claims ...................................... 28

Religious hostility ...................................................... 29

ii.

Viewpoint discrimination .......................................... 31

Free Exercise Clause claim .......................................... 36

RLUIPA claim .............................................................. 38

CONCLUSION ........................................................................................ 40

iii

TABLE OF AUTHORITIES

Cases

Already, LLC v. Nike, Inc., 568 U.S. 85 (2013) ......................................... 7

Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067 (2019) ...... 29, 30, 34

Beard v. Banks, 548 U.S. 521 (2006) ...................................................... 31

Booth v. Churner, 532 U.S. 731 (2001) ............................................. 13, 24

Burke v. Barnes, 479 U.S. 361 (1987) ................................................... 8, 9

Calderon v. Moore, 518 U.S. 149 (1996).................................................... 9

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)......................................... 7

Cutter v. Wilkinson, 544 U.S. 709 (2005) .......................................... 23, 38

Diaz v. Stephens, 731 F.3d 370 (5th Cir. 2013) ...................................... 20

Diffenderfer v. Cent. Baptist Church, 404 U.S. 412 (1972) ...................... 8

Dugger v. Johnson, 485 U.S. 945 (1988) ................................................. 11

Dunn v. Ray, 139 S. Ct. 661 (2019) ......................................................... 16

Ellis v. Ry. Clerks, 466 U.S. 435 (1984) .................................................... 7

Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) ....... 18

Gay v. Ruff, 292 U.S. 25 (1934) ............................................................... 21

Gomez v. U.S. Dist. Ct. N. Dist. Cal., 503 U.S. 653 (1992) ..................... 19

Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) .............................. 18, 19

Hernandez v. Comm’r, 490 U.S. 680 (1989) ............................................ 29

Hill v. McDonough, 547 U.S. 573 (2006)........................................... 10, 11

Holt v. Hobbs, 135 S. Ct. 853 (2015) ....................................................... 38

Howard v. Dretke, 157 F. App’x 667 (5th Cir. 2005) .............................. 20

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990) ............................ 17

Jones v. Bock, 549 U.S. 199 (2007) ............................................. 13, 24, 25

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004) ...................... 26

Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298 (2012) .......... 7

Larson v. Valente, 456 U.S. 228 (1982) ............................................. 28, 31

Lemon v. Kurtzman, 403 U.S. 602 (1971) ............................................... 28

Link v. Wabash R.R. Co., 370 U.S. 626 (1962) ....................................... 18

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................... 27

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988) ..... 39

Mills v. Green, 159 U.S. 651 (1895) .......................................................... 9

Moussazadeh v. Tex. Dep’t of Justice, 703 F.3d 781

(5th Cir. 2012) .......................................................................... 13, 24

Murphy v. Collier, 139 S. Ct. 1475 (2019)....................................... passim

Murphy v. Hunt, 455 U.S. 478 (1982) ....................................................... 7

Nelson v. Campbell, 541 U.S. 637 (2004) ........................................ passim

Nken v. Holder, 556 U.S. 418 (2009) ....................................................... 10

O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) .................................. 36

Pfeil v. Lampert, 603 F. App’x 665 (10th Cir. 2015) ............................... 26

Porter v. Nussle, 534 U.S. 516 (2002)...................................................... 24

Pouncil v. Tilton, 704 F.3d 568 (9th Cir. 2012) ...................................... 26

Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) ................................... 15

Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689 (11th Cir. 2019) ........ 16

Robinson v. Superintendent Houtzdale SCI, 693 F. App’x 111

(3d Cir. 2017) .................................................................................. 26

Ross v. Blake, 136 S. Ct. 1850 (2016) ...................................................... 13

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).......................... 28

Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........................................ 27

Thorne v. Jones, 765 F.2d 1270 (5th Cir. 1985) ...................................... 33

Trottie v. Livingston, 766 F.3d 450 (5th Cir. 2014) .......................... 15, 27

Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017) ..................... 8, 9

Turner v. Safley, 482 U.S. 78 (1987) ................................................. 31, 38

United States v. Johnston, 268 U.S. 220 (1925) ..................................... 22

Van Orden v. Perry, 545 U.S. 677 (2005) ................................................ 29

Walker v. Epps, 550 F.3d 407 (5th Cir. 2008) ................................... 25, 26

Wilson v. Garcia, 471 U.S. 261 (1985) .................................................... 25

Woodford v. Ngo, 548 U.S. 81 (2006) ................................................ 23, 24

Wright v. Hollingsworth, 260 F.3d 357 (5th Cir. 2001) .......................... 24

Statutes

28 U.S.C. § 1254(1) ............................................................................ 20, 21

28 U.S.C. § 1292(a)(1).............................................................................. 20

28 U.S.C. § 1658(a) .................................................................................. 26

42 U.S.C. § 1983 ........................................................................................ 3

42 U.S.C. § 2000cc-1(a)............................................................................ 38

Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) ....................................... 25

Tex. Code Crim. Proc. art. 43.14 ............................................................... 8

Tex. Code Crim. Proc. art. 43.141(a) ......................................................... 8

Tex. Code Crim. Proc. art. 43.15 ............................................................... 8

Rules

Sup. Ct. R. 10........................................................................................... 22

Sup. Ct. R. 11..................................................................................... 21, 22

Constitutional Provisions

U.S. Const. amend. I, cl. 1 ....................................................................... 28

vii

BRIEF IN OPPOSITION

Bryan Collier, Executive Director, Lorie Davis, the Director of the

Correctional Institutions Division, and Billy Lewis, Senior Warden, all of

the Texas Department of Criminal Justice (TDCJ), respectfully submit

this brief in opposition to the petition for a writ of certiorari filed by

Patrick Henry Murphy.

STATEMENT

Murphy’s Offense and Postconviction Challenges

On December 13, 2000, Murphy and six other inmates escaped from

a Texas prison. Murphy v. Davis, 737 F. App’x 693, 695 (5th Cir. 2018).

On December 24, 2000, the “Texas Seven” robbed a sporting-goods store

in Irving, Texas, killing Officer Aubrey Hawkins as they fled. Id. at 696–

07. The escapees made their way to Colorado where they were eventually

captured, save one who committed suicide, in January 2001. Id. at 697.

Murphy was convicted of capital murder and sentenced to death in

November 2003. Murphy v. State, No. AP-74,851, 2006 WL 1096924, at

*1 (Tex. Crim. App. Apr. 26, 2006). His conviction was affirmed on direct

appeal in April 2006. Id. His state habeas application was denied in July

2009. Ex parte Murphy, No. WR-63,549-01, 2009 WL 1900369, at *1 (Tex.

Crim. App. Nov. 15, 2006).

Murphy turned to the federal forum, but collateral relief was denied

by the district court. Murphy, 737 F. App’x at 699. On appeal, Murphy

was unable to obtain a certificate of appealability or otherwise

demonstrate reversible error. Id. at 709. His petition for writ of certiorari

was denied late last year. Murphy v. Davis, 139 S. Ct. 568 (2018).

II.

The Litigation Preceding His First Execution Setting

In late November 2018, the state district court set Murphy’s

execution for March 28, 2019. Order Setting Execution Date, State v.

Murphy, No. F01-00328-T (283d Dist. Ct., Dallas County, Tex. Nov. 29,

2018). About two weeks before this execution date, Murphy moved the

Court of Criminal Appeals (CCA) to reopen his direct appeal. Suggestion

That the Court, On Its Own Motion, Reconsider Its April 26, 2006 Denial

of Relief, Murphy v. State, No. AP-74,851 (Tex. Crim. App. Mar. 12, 2019).

The CCA declined Murphy’s request on March 20, 2019. Order, at 1,

Murphy v. State, No. AP-74,851 (Tex. Crim. App. Mar. 20, 2019).

That same day, Murphy filed a petition for writ of prohibition, a

motion for leave to file that petition, a motion for a stay of execution with

the CCA, and a motion to reopen his habeas proceeding. Petition for Writ

of Prohibition, Ex parte Murphy, No. WR-63,549-02 (Tex. Crim. App.

Mar. 20, 2019); Motion for Leave to File Petition for Writ of Prohibition,

Ex parte Murphy, No. WR-63,549-02 (Tex. Crim. App. Mar. 20, 2019);

Motion for Stay of Execution, Ex parte Murphy, No. WR-63,549-02 (Tex.

Crim. App. Mar. 20, 2019); Suggestion That the Court, On Its Own

Motion, Reconsider Its July 1, 2009 Denial of Relief, Ex parte Murphy,

No. WR-63,549-01 (Tex. Crim. App. Mar. 20, 2019). In a single order, the

CCA declined to reopen his habeas proceeding and denied him leave to

file his writ of prohibition. Ex parte Murphy, Nos. WR-63,549-01 to -02,

2019 WL 1379859, at *1 (Tex. Crim. App. Mar. 25, 2019).

III. The Course of Murphy’s Present Lawsuit

Two days before his March execution setting, Murphy filed suit

against TDCJ pursuant to 42 U.S.C. § 1983 and the Religious Land Use

and Institutionalized Persons Act (RLUIPA). ROA.4–34. 1 He claimed an

Establishment Clause violation because TDCJ permitted only TDCJemployed chaplains to accompany condemned offenders in the execution

chamber, none of whom were Buddhist, Murphy’s faith preference.

“ROA” refers to the record on appeal filed in the court below.

ROA.15–23. Murphy also alleged that TDCJ’s execution protocol, barring

non-TDCJ personnel from the execution chamber, violated his First

Amendment right to practice his faith and that, if this protocol did not

violate the Free Exercise Clause, it violated RLUIPA. ROA.23–25.

Predicated on this suit, he sought a stay of execution. ROA.41–45. The

district court declined to grant him one. ROA.244–55.

Murphy appealed the district court’s stay denial and moved the

United States Court of Appeals for the Fifth Circuit for a stay to await

its decision. Plaintiff–Appellant’s Brief 1–22, Murphy v. Collier, 919 F.3d

913 (5th Cir. Mar. 27, 2019) (No. 19-70007). The Fifth Circuit affirmed

the district court and thus denied Murphy a stay. Murphy v. Collier, 919

F.3d 913, 914–16 (5th Cir. 2019).

On the day Murphy was to be executed, he moved this Court to stay

his execution pending the filing and disposition of a petition for writ of

certiorari. Mot. Stay Execution Pending Filing, Consideration, &

Disposition Pet. Writ Cert. 7–10. The Court partially granted Murphy’s

motion, allowing his execution to proceed only if TDCJ permitted or

provided him a Buddhist spiritual advisor inside the execution chamber.

Murphy v. Collier, 139 S. Ct. 1475, 1475 (2019). TDCJ declined this

condition, so Murphy’s execution warrant expired, and he was not

executed.2

Since that date, Murphy has amended his complaint. First

Amended Complaint 1–18, Murphy v. Collier, No. 4:19-CV-1106 (S.D.

Tex. Apr. 18, 2019), ECF No. 22 [hereinafter “Am. Compl.”]. Murphy has

split his Establishment Clause claim in two—TDCJ’s employee-only

protocol is hostile to religion generally and TDCJ still favors Christians

and Muslims because its chaplains have greater access to the condemned

in the hours prior to an execution. See id. at 11–14. The Free Exercise

and RLUIPA claims are essentially the same. Compare id. at 15–17, with

ROA.23–25. After discovery ended, the parties filed dueling motions for

summary judgment and are awaiting a decision. Plaintiff’s Motion for

Summary Judgment 1–21, Murphy v. Collier, No. 4:19-CV-1106 (S.D.

Tex. July 19, 2019); Motion for Summary Judgment by Defendants 5–33,

Murphy v. Collier, No. 4:19-CV-1106 (S.D. Tex. July 19, 2019).

Murphy also filed an original petition for writ of prohibition, a motion for leave

to file the same, and a stay of execution. Orig. Pet. Writ Prohibition 9–29; Mot. Leave

File Orig. Action 1–2; Mot. Stay Execution 1–2. The latter became moot when the

Court stayed his execution, and the former were eventually denied by the Court. In

re Murphy, 139 S. Ct. 1642 (2019).

IV.

The Second Execution Setting

On August 12, 2019, the state trial court ordered Murphy’s

execution set for November 13, 2019. Order Setting Execution Date, State

v. Murphy, No. F01-00328-T (283d Dist. Ct., Dallas County, Tex. Aug. 12,

2019). No litigation has yet arisen from this second setting.

REASONS FOR DENYING THE PETITION

Murphy seeks an advisory opinion declaring him diligent in the

context of a stay of execution that has become moot. The Court should

not indulge this request because it lacks jurisdiction to do so, it is a

request for mere error correction, and he was not, in fact, diligent.

As to the merits of Murphy’s claims, the Court is without

jurisdiction to consider them as the district court has yet to rule, and

there is no good reason for the Court to hear them now, interrupting the

normal litigation process and becoming a court of first review, both as to

law and facts. Merits review is also unwarranted because the claims are

barred by the relevant statutes of limitation and have not been exhausted

through available administrative avenues, and Murphy has not provided

justification as to why any of his claims are particularly compelling

beyond his own personal interest in them. The petition should be denied.

Because the Execution Warrant Placing This Case in a Stay

Posture Has Expired, the Case Is Moot.

Murphy asks for summary reversal of the Fifth Circuit’s stay denial

affirmance “to make clear [that] the State’s delay in responding to an

inmate’s request regarding the way in which he is to be executed must be

considered when determining whether he is entitled to a stay of his

execution.” Pet. Cert. 4. Doing so would be an advisory opinion, however,

because the stay component of this case is now moot.

“A case becomes moot . . . ‘when the issues presented are no longer

live or the parties lack a legally cognizable interest in the outcome.’”

Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting Murphy v.

Hunt, 455 U.S. 478, 481 (1982) (per curiam)). This occurs “only when it

is impossible to grant ‘any effectual relief whatever’ to the prevailing

party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307

(2012) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). “[A]s

long as the parties have a concrete interest, however small, in the

outcome of the litigation, the case is not moot.” Id. at 307–08 (alteration

in original) (quoting Ellis v. Ry. Clerks, 466 U.S. 435, 442 (1984)).

When a party challenges a law that has been repealed by the time

the issue reaches the Court, the case is moot. Diffenderfer v. Cent. Baptist

Church, 404 U.S. 412, 414–15 (1972) (per curiam). Also moot is a

challenge to a bill that expires by its own terms prior to landing on the

Court’s docket. Burke v. Barnes, 479 U.S. 361, 363–64 (1987). And this

rule applies to self-expiring executive orders losing effect before the Court

can issue an opinion on the merits. Trump v. Int’l Refugee Assistance, 138

S. Ct. 353, 353 (2017). This case presents a similar situation.

In Texas, after the completion of postconviction review, a trial court

must enter an order setting an execution date to effectuate a capital

sentence. Tex. Code Crim. Proc. art. 43.141(a). That order, in turn,

triggers the issuance of a warrant of execution authorizing TDCJ to carry

out sentence. Id. art. 43.15. Both these statutes are cabined by another,

providing that an inmate may not be executed before 6:00pm and no later

than 11:59pm on the date chosen by the trial court. Id. art. 43.14.

By operation of Texas law, TDCJ lost the power to execute Murphy

pursuant to the November execution order at midnight on March 29,

2019. Like in Trump and Burke, the November execution order “expired

by its own terms,” and thus Murphy cannot be executed pursuant to it.

See Nelson v. Campbell, 541 U.S. 637, 648 (2004) (declining to address

issues related to a prior stay of execution because “the execution warrant

has now expired”). Murphy’s second execution setting is, as noted above,

based on a new execution order and warrant and, should Murphy seek a

stay of this execution date, the facts will necessarily be different than

those presented to the Fifth Circuit six months ago. See id. (noting that,

“[i]f the State reschedules the execution while this case is pending on

remand and petitioner seeks another . . . stay, the District Court will

need to address” future issues). When the November execution order

expired, so did this case as a live controversy. See Trump, 138 S. Ct. at

353; Burke, 479 U.S. at 363. And the Court should deny Murphy’s petition

on this point because “federal courts may not ‘give opinions upon moot

questions or abstract propositions.’” Calderon v. Moore, 518 U.S. 149, 150

(1996) (per curiam) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)).

II.

If This Case Is Not Moot, the Stay Denial Was Not an Abuse

of Discretion, Including the Portion Finding Murphy’s

Actions Dilatory.

As mentioned above, Murphy believes this Court should address

whether claimed “dilatory inaction by” TDCJ should factor into “the

balance of equities in granting or denying a motion for a stay of

execution.” Pet. Cert. 9. He believes himself diligent. Id. at 4–9. He was

not, and it was not an abuse of discretion to deny him a stay of execution.

“Filing an action that can proceed under § 1983 does not entitle the

complainant to an order staying an execution as a matter of course.” Hill

v. McDonough, 547 U.S. 573, 583–84 (2006). “The party requesting a stay

bears the burden of showing that the circumstances justify an exercise of

[judicial] discretion.” Nken v. Holder, 556 U.S. 418, 433–34 (2009). In

utilizing that discretion, a court must consider:

(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.

Id. at 434 (citations omitted) (internal quotation marks omitted).

“[I]nmates seeking time to challenge the manner in which the State plans

to execute them must satisfy all of the requirements for a stay, including

a showing of a significant possibility of success on the merits.” Hill, 547

U.S. at 584. “Both the State and the victims of crimes have an important

interest in the timely enforcement of a sentence” and courts “must be

sensitive to the State’s strong interest in enforcing its criminal judgments

without undue interference from the federal courts.” Id. Thus, “[a] court

considering a stay must also apply ‘a strong equitable presumption

against the grant of a stay where a claim could have been brought at such

a time as to allow consideration of the merits without requiring entry of

a stay.’” Id. (quoting Nelson, 541 U.S. at 650). “[F]ederal courts can and

should protect States from dilatory or speculative suits.” Id. at 585.

Review of stay decisions is deferential and should be overturned only

“when the lower courts have clearly abused their discretion.” Dugger v.

Johnson, 485 U.S. 945, 947 (1988) (O’Connor, J., concurring).

Two members of the Court seemingly agree with Murphy’s view of

things. Murphy, 139 S. Ct. at 1476–79 (Kavanaugh, J., respecting grant

of stay). Three do not. Id. at 1478–82 (Alito, J., dissenting from stay). The

votes of the remaining members of the Court remain uncertain, along

with the reasons for them. The three dissenters are correct.

In his statement respecting the grant of stay, Justice Kavanaugh

noted the email inquiry Murphy’s attorneys made to TDCJ’s general

counsel twenty-eight days before his execution. Murphy, 139 S. Ct. at

1477 (Kavanaugh, J., respecting grant of stay). Murphy emphasizes this

point as well. Pet. Cert. 5. TDCJ’s general counsel responded to Murphy’s

attorneys within a week, informing them of what was already obvious

from TDCJ’s public execution protocol—no one, other than TDCJ

personnel, is permitted in the execution chamber. ROA.30. Two days

later, Murphy’s attorneys responded,

thanks for getting back to me. i am assuming from your

email TDCJ, so far as you are aware, does not have a buddhist

priest[] on its staff; however, if i am mistaken, and there is

such a buddhist on the TDCJ staff, then i believe murphy

would be content to have him in the chamber.

as i am sure you . . . are aware, the eleventh circuit faced

a similar question in the dominique ray case. i am attaching

its opinion to this email. of course, the supreme court

ultimately vacated the ca11 case, but only because ray waited

too long to raise the issue. we, on the contrary, have raised it

in what i believe is ample time for TDCJ to [e]nsure there are

no security issues presented by a religious figure of murphy’s

faith accompanying him during the execution.

i think that current TDCJ policy, as was the case in the

ca11 ray case, suggests an establishment clause violation, and

as well interferes with murphy’s right to the free exercise of

religion. so i am hoping there is a solution to this issue short

of litigation.

ROA.32 (lower case in original). Numerous problems arise in predicating

diligence on this chain of communication.

First, Murphy’s contact with TDCJ’s general counsel flouted the

normal administrative process by which religious accommodations are

made in Texas’s prison system. While TDCJ’s general counsel is a

talented attorney, she is not a security expert. Rather, Murphy’s request

for a religious accommodation should have gone through the well-

established administrative route, where TDCJ security personnel have

their say. See Moussazadeh v. Tex. Dep’t of Justice, 703 F.3d 781, 788 (5th

Cir. 2012) (“In Texas, prison grievances involve a two-step process.”).

Indeed, Murphy knew that TDCJ’s grievance process was the

proper course for seeking a religious accommodation—he requested one

just a few years earlier. ROA.77–80. If Murphy were found timely, it

would abrogate the democratically manifested intent expressed by the

Prison

Litigation

Reform

Act

1995

(PLRA),

“mandat[ing]

exhaustion . . . regardless of the relief offered through administrative

procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Ross v.

Blake, 136 S. Ct. 1850, 1857 (2016) (“But a statutory exhaustion provision

stands on a different footing. There, Congress sets the rules—and courts

have a role in creating exceptions only if Congress wants them to.”). And

would

create

dangerous

rule—that

utilizing

the

proper

administrative process no longer matters, at least in the context of

diligence for a stay, despite the fact the suit would be subject to summary

dismissal. See Jones v. Bock, 549 U.S. 199, 211 (2007) (“There is no

question that exhaustion is mandatory under the PLRA and that

unexhausted claims cannot be brought in court.”). The rule that Murphy

advances undermines the careful and deliberate choices made by prison

officials

hopes

addressing

matters

nonadversarial

administrative process, recognized by Congress as laudable goal,

subversion of which should not be rewarded.

Second, the date of Murphy’s first email—twenty-eight days before

the then-scheduled execution—should not be the yardstick by which

diligence is measured. Context must be accounted for—the person

Murphy’s attorneys emailed, TDCJ’s general counsel, is responsible for

representing the legal interests of a corrections department with a yearly

budget of over three billion dollars, more than 140,000 incarcerated

offenders, and 30,000 employees. See Tex. Dep’t of Criminal Justice,

Annual Review 2017, at 9, 18, https://www.tdcj.texas.gov/documents/Ann

ual_Review_2017.pdf. To expect a “prompt” response from someone who

would be considered an apex deponent simply ignores reality, and

diligence should not be determined by the strength of one’s contact list.

Indeed, the rule advocated by Murphy sets up a system designed

for failure (or manipulation). What if, for example, the email sent by

Murphy’s

attorneys

was

accidentally

deleted?

accidentally

overlooked? Or automatically sent to a “junk” folder by an email

program? Would Murphy still be diligent because his attorneys reached

out to some prison official, but the communication was rendered

ineffectual by an everyday occurrence? These questions do not arise,

however, if Murphy—and not his attorneys—utilizes the appropriate

grievance process in a timely manner, all the more reason why it should

be encouraged, not circumvented.

Third, Murphy’s first email made no mention that the absence of

Murphy’s spiritual advisor from the execution chamber was somehow a

constitutional deprivation. ROA.29. And there was no reason to suspect

it was—TDCJ’s then-current execution protocol had, for the most part,

been in place for at least more than a decade without complaint about its

chaplaincy provisions. See Raby v. Livingston, 600 F.3d 552, 555 (5th Cir.

2010) (noting that TDCJ’s lethal injection protocol was memorialized in

May 2008); see also Trottie v. Livingston, 766 F.3d 450, 452 n.1 (5th Cir.

2014) (noting that “[t]he only difference between the” July 2012 and the

May 2008 protocols “is a change from the use of three drugs to a single

drug”). Instead, Murphy waited to raise his constitutional concerns until

his second email, only twenty-one days before his then-scheduled

execution. ROA.32.

This period, the more appropriate measure, is similar to the one in

Dunn v. Ray, 139 S. Ct. 661 (2019). There, the death sentenced inmate

made his informal request to prison officials—that he should be

permitted the accompaniment of his preferred spiritual advisor inside the

execution chamber—fifteen days before his scheduled execution.

Compare Ray v. Comm’r, Ala. Dep’t of Corr., 915 F.3d 689, 692 (11th Cir.

2019) (February 7, 2019), with id. at 693 (January 23, 2019). Murphy

provided TDCJ with only six more days’ notice, certainly not enough time

to transmogrify dilatoriness into diligence, especially in the context of

last-minute litigation involving such a fraught and litigious practice.

Fourth, TDCJ’s lack of response to Murphy’s second email is wholly

understandable—he did not ask a question. ROA.32. In fact, Murphy’s

counsel assumed that TDCJ did not employ a Buddhist chaplain and that

TDCJ should contact him only if that assumption was incorrect. ROA.32.

Thus, TDCJ’s non response confirmed Murphy’s assumption. And

nothing else in the second email solicited a response either. Unlike in

Murphy’s first email, where his counsel offered a concrete compromise to

avoid litigation, ROA.29, counsel offered only his “belie[f]” of a

compromise in the second email, ROA.32. TDCJ’s general counsel’s

responsibilities are many and having to guess whether an email—lacking

a question or a definite offer—warrants a response should not be laid at

her feet, but rather at Murphy’s—his attorneys, after all, were the ones

who drafted it. 3 And once the notion that Murphy made a request in his

second email is dispatched, there is no “foot-dragging” attributable to

TDCJ such that it balances out or lessens Murphy’s dilatoriness.

Fifth, regarding Murphy’s attorneys, the lower courts were familiar

with them in a way this Court is not. As regional courts, they are better

positioned to interpret its bar’s actions, e.g., whether counsel knew that

only TDCJ employees are allowed in the execution chamber, if not from

policy then from practice, or how best to interpret the ambiguity in

Murphy’s second email. They did this, noting “counsel’s history of

bringing

last-minute

litigation,”

ROA.252,

and

their

“multiple

warnings . . . in the past for filing last-minute motions,” Murphy, 919

F.3d at 916. And they appropriately charged this behavior to Murphy.

See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 93 (1990) (“Under our

system of representative litigation, ‘each party is deemed bound by the

Respectfully, as the above demonstrates, Murphy never made a “request to

have any Buddhist minister in the execution room.” Murphy, 139 S. Ct. at 1477

(Kavanaugh, J., respecting grant of stay) (emphasis added). No question was asked,

and no firm settlement offered.

acts of his lawyer-agent[.]’” (quoting Link v. Wabash R.R. Co., 370 U.S.

626, 634 (1962))). Deference should be given these courts’ familiarity with

counsel and its impact on the diligence inquiry vis-à-vis a stay of

execution. Cf. Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144,

1149–50 (2017) (noting that this Court generally defers to a court of

appeals’s interpretation of their respective states’ laws).

Given the above, diligence is not supported by Murphy’s email

correspondence with TDCJ’s general counsel. And once that is set aside,

there is surely nothing else justifying Murphy’s extreme delay in bringing

suit. See Murphy, 139 S. Ct. at 1480–82 (Alito, J., dissenting from stay).

But instead of doing so in a timely manner, Murphy did “the very thing

he is not entitled to do . . . namely, to wait until his execution is imminent

before suing to enjoin the state’s method of carrying it out.” Harris v.

Johnson, 376 F.3d 414, 417 (5th Cir. 2004). Specifically,

[b]y waiting until the execution date was set, [Murphy] left

the state with a Hobbesian choice: It could either accede to his

demands and execute him in the manner he deems most

acceptable, even if the state’s methods are not violative of the

Eighth Amendment; or it could defend the validity of its

methods on the merits, requiring a stay of execution until the

matter could be resolved at trial. Under [Murphy’s] scheme,

and whatever the state’s choice would have been, it would

have been the timing of [Murphy’s] complaint, not its

substantive merit, that would have driven the result.

Id. “By waiting as long as he did, [Murphy] leaves little doubt that the

real purpose behind his claim[s] is to seek a delay of his execution, not

merely to affect an alteration of the manner in which it is carried out.”

Id. In fact, that “real purpose” is presently on display—Murphy’s

amendment to his complaint demonstrates that he will sue TDCJ no

matter the facts.4 And Murphy’s claims, even the amended ones, “could

have been brought [long] ago [and t]here is no good reason for this

abusive delay.” Gomez v. U.S. Dist. Ct. N. Dist. Cal., 503 U.S. 653, 654

(1992). Given these facts, and because the claims stand little chance of

success, see infra Argument V, the Fifth Circuit did not err in affirming

the denial of a stay of execution.

III. The Court Lacks Jurisdiction to Consider the Merits of

Murphy’s Claims.

Murphy asks the Court to consider the merits of his Establishment

and Free Exercise Clause claims, and his RLUIPA claim (in the event the

While Justice Kavanaugh opined that TDCJ’s protocol change “should

alleviate any future litigation delays or disruptions,” Murphy, 139 S. Ct. at 1476

(Kavanaugh, J., respecting grant of stay), that unfortunately has not come to pass.

Instead, Murphy now claims that one of Justice Kavanaugh’s suggested remedies is

itself unconstitutional and, if that suggestion remedied the constitutional violation in

the execution chamber, Murphy moves the goal posts to the period just before his

entrance into the chamber. It is almost as if TDCJ cannot exercise institutional

control over its facilities—by allowing its personnel greater access in its prisons than

civilians—without violating the Constitution.

Free Exercise claim falters). Pet. Cert. 9–16. But because there is no final

judgment in the district court, this Court lacks jurisdiction to do so.

Murphy claims jurisdiction via 28 U.S.C. § 1254(1). Pet. Cert. 2.

That statute facially provides jurisdiction to consider his first issue, the

Fifth Circuit’s stay decision, because that is a judgment by a court of

appeals (though it is now moot). § 1254(1). But the Fifth Circuit did not

have before it, and did not pass upon, the merits of Murphy’s claims—it

was solely reviewing the propriety of the district court’s stay denial.

Murphy, 919 F.3d at 915 (“[W]e review a district court’s decision to deny

a stay of execution for abuse of discretion.” (alteration in original)

(quoting Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 2013))). This is

necessarily true because the district court had not (and has not) entered

final judgment, it was only declining to utilize its stay authority.

ROA.244–55. As such, the Fifth Circuit’s jurisdiction emanated from its

ability to review interlocutory injunction decisions, § 1292(a)(1),

“[b]ecause a capital defendant’s request for a stay is a request for the

district court to enjoin the defendant’s execution,” Howard v. Dretke, 157

F. App’x 667, 670 (5th Cir. 2005); see, e.g., Nelson, 541 U.S. at 648

(describing a stay of execution arising from a § 1983 suit as injunctive

relief). Murphy’s claims are not part of a court of appeals’s judgment.

While it is true that this Court may grant a writ of certiorari

“before . . . rendition of judgment” by a court of appeals, § 1254(1), that

requires “there be a case pending in the . . . court of appeals,” Gay v. Ruff,

292 U.S. 25, 30 (1934) (emphasis added). Indeed, the Court’s rules reflect

this understanding. See Sup. Ct. R. 11 (“A petition for a writ of certiorari

to review a case pending in a . . . court of appeals, before judgment is

entered in that court, will be granted only” in extraordinary

circumstances. (emphasis added)). But there is no case pending in the

Fifth Circuit regarding the merits of Murphy’s claims—those are

presently before the district court awaiting a decision on whether

summary judgment is appropriate. Because Murphy’s claims are not part

of a judgment by, or the subject of a case pending in, a court of appeals,

this Court has no jurisdiction to entertain them via a writ of certiorari.

IV.

Even if the Court Possessed Jurisdiction to Review the

Merits of Murphy’s Claims, Prudence Favors Restraint in

this Case.

When this Court interrupts the normal appellate process, it is “only

upon a showing that the case is of such imperative public importance as

to justify deviation.” Sup. Ct. R. 11. Something even greater should then

be required when the litigation process has not ended, assuming

jurisdiction exists to do so, especially for claims that “are dependent on

the resolution of fact-intensive questions that simply cannot be decided

without adequate proceedings and findings at the trial level.” Murphy,

139 S. Ct. at 1481 (Alito, J., dissenting from stay). Murphy offers none of

the traditional reasons for granting a writ of certiorari, see Sup. Ct. R.

10(a)–(c), let alone a reason to interfere in the normal adjudicatory

process at the trial court level.

Indeed, granting the writ at this stage would deviate significantly

from this Court’s normal practice in at least two ways. First, because

litigation remains pending in district court, this Court would become a

factfinder. This Court, however, does not “grant a certiorari to review

evidence and discuss specific facts.” United States v. Johnston, 268 U.S.

220, 227 (1925). That review would be especially problematic in this case

given the “woefully deficient” and “flimsy record,” Murphy, 139 S. Ct. at

1481–82 (Alito, J., dissenting from stay), developed in the truncated

context that is last-minute capital litigation. Second, given that the

merits of Murphy’s claims have not been reached by the district court,

this Court would review them for the first time. But the Court is one “of

review, not first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Thus, even if jurisdictional deficiencies did not foreclose granting a writ

of certiorari in this case, prudence counsels against it.

Assuming Jurisdiction and a Lack of Prudential Concerns,

Murphy’s Claims Fail.

As mentioned above, what was once three claims is now four, and

they are pending in district court: (1) TDCJ’s employee-only policy is

hostile to religion generally; (2) TDCJ discriminates against certain

religions by providing its chaplains greater access to the condemned than

outside spiritual advisors in the hours before an execution; (3) the

employee-only policy interferes with Murphy’s free exercise of religion

under the First Amendment; and, (4) in the alternative, the policy

violates RLUIPA. Setting aside jurisdiction and prudence, the claims are

unexhausted, time barred, and without merit.

The claims are unexhausted.

Murphy is a prisoner proceeding in forma pauperis. ROA.256–58.

Thus, he is subject to the PLRA. See, e.g., Woodford v. Ngo, 548 U.S. 81,

81, 85 (2006). As such, he “must now exhaust administrative remedies

even where the relief sought . . . cannot be granted by the administrative

process.” Id. (citing Booth, 532 U.S. at 734). And the “exhaustion of

available administrative remedies is required for any suit challenging

prison conditions, not just for suits under § 1983.” Id. (citing Porter v.

Nussle, 534 U.S. 516, 524 (2002)). Indeed, “[t]here is no question that

exhaustion is mandatory under the PLRA and that unexhausted claims

cannot be brought in court.” Jones, 549 U.S. at 211. This includes

challenges to a state’s execution protocol. See Nelson, 541 U.S. at 643

(stating that the restrictions imposed by the PLRA apply to a method-ofexecution claim).

“In Texas, prison grievances involve a two-step process.”

Moussazadeh, 703 F.3d at 788; see also ROA.166–68 (TDCJ’s “Offender

Orientation Handbook” setting out the grievance process). To properly

exhaust, a prisoner must “pursue the grievance remedy to conclusion.”

Wright v. Hollingsworth, 260 F.3d 357, 358 (5th Cir. 2001). This requires

completion of both steps of TDCJ’s grievance process before a complaint

may be filed. Id.

Here, Murphy did not engage TDCJ’s grievance process concerning

his desire to have a Buddhist spiritual advisor, his own or TDCJprovided, accompany him into the execution chamber. See ROA.75–80.

Rather, the latest—and only—grievance Murphy filed was in late 2011.5

ROA.77–80. Hence, Murphy failed to exhaust his constitutional and

statutory claims arising from the denial of entry of his spiritual advisor

into the execution chamber. As such, these claims must be dismissed by

the district court. See Jones, 549 U.S. at 221 (“As a general matter, if a

complaint contains both good and bad claims, the court proceeds with the

good and leaves the bad.”).

The claims are untimely.

Claims challenging an execution protocol and raised in a civil rights

action are subject to a state’s personal-injury statute of limitations.

Walker v. Epps, 550 F.3d 407, 412–14 (5th Cir. 2008); see Wilson v.

Garcia, 471 U.S. 261, 276 (1985) (determining that a state’s personalinjury statute of limitations applies to § 1983 actions). Texas’s personalinjury-limitations period is two years. Tex. Civ. Prac. & Rem. Code Ann.

§ 16.003(a). A claim concerning execution protocol accrues on the later of

Despite the Director having raised the exhaustion defense repeatedly in this

litigation, upon information and belief, Murphy has still not filed a grievance. And,

notably, the one grievance Murphy did file concerned a request for a religious

accommodation. ROA.77. Thus, he cannot possibly claim that TDCJ’s grievance

procedure is not an appropriate and required administrative process necessary to

exhaust his present claims—also requesting religious accommodation—under the

PLRA.

two dates: when direct review is complete or when the challenged protocol

was adopted. Walker, 550 F.3d at 414–15.

Civil actions arising from acts of Congress post-1990 are subject to

the four-year, catch-all limitations period of 28 U.S.C. § 1658(a). Jones v.

R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004). RLUIPA, enacted

in 2000, thus qualifies, and claims pursuant thereto must be filed within

four years of the claim’s accrual date. See Robinson v. Superintendent

Houtzdale SCI, 693 F. App’x 111, 116–17 (3d Cir. 2017); Pfeil v. Lampert,

603 F. App’x 665, 667 (10th Cir. 2015); Pouncil v. Tilton, 704 F.3d 568,

573 (9th Cir. 2012).

Murphy’s constitutional claims are foundationally the same as

when he originally filed suit—TDCJ did not permit or provide him a

Buddhist spiritual advisor inside the execution chamber. See ROA.15–

24; Am. Compl. 11–14. And Murphy’s RLUIPA claim is but a different

standard of review for his Free Exercise Clause claim, and that claim did

not change in the amended complaint. ROA.23–25; Am. Compl. 15–17.

But publicly available TDCJ policy, since at least July 2012, provided

that only TDCJ chaplains may enter the execution chamber—“the

Huntsville Unit Chaplain[,] or a designated approved TDCJ Chaplain[,]

shall accompany the offender while in the Execution Chamber.”

ROA.236; see also Trottie, 766 F.3d at 452 n.1. In other words, TDCJ’s

execution protocol has clearly prohibited anyone other than TDCJ

employees from entering the execution chamber since at least July 2012.

Thus, years have passed since the claims accrued under the protocol

enactment date.6

The alternative accrual date does not save Murphy’s claims.

Murphy’s direct appeal was decided by the CCA on April 26, 2006.

Murphy v. State, No. AP-74,851, 2006 WL 1096924 (Tex. Crim. App. Apr.

26, 2006). Assuming that the denial of a writ of certiorari marks the point

of finality for limitations purposes, Murphy’s direct appeal ended more

than a decade ago. Murphy v. Texas, 549 U.S. 1119 (2007). As such, the

direct review termination accrual date does not render these claims

timely. See Walker, 550 F.3d at 415. Because Murphy filed outside of the

two-year limitations period based on either accrual date for his

While TDCJ’s execution protocol was amended on April 2, 2019, to permit only

TDCJ security personnel inside the execution chamber, that change had no effect on

Murphy—he was without a Buddhist spiritual advisor under both versions of the

protocol. The fact that more prisoners may now file suit because of the protocol’s

recent change means that they now have standing, not that a new accrual date is

proper. See, e.g., Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (“For an injury

to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’”

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)).

constitutional claims, and outside the four-year limitations period for his

RLUIPA claim, they are untimely.

The claims are without merit.

Establishment Clause claims

The Establishment Clause provides in relevant part that “Congress

shall make no law respecting an establishment of religion.” U.S. Const.

amend. I, cl. 1. This clause applies to the states through the Fourteenth

Amendment. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (2000).

Claims of religious-government entanglement are normally reviewed

under a three-prong test: (1) “the statute must have a secular legislative

purpose;” (2) “its principal or primary effect must be one that neither

advances nor inhibits religion;” and (3) “the statute must not foster an

excessive government entanglement with religion.” Lemon v. Kurtzman,

403 U.S. 602, 612–13 (1971).

The Establishment Clause prevents governments from officially

preferring one religion over another. See Larson v. Valente, 456 U.S. 228,

244 (1982). Where a denominational preference is claimed to exist, “the

initial inquiry is whether the law facially differentiates among religions.

If no such facial preference exists, [courts] proceed to apply the customary

three-pronged Establishment Clause inquiry derived from Lemon[.]”

Hernandez v. Comm’r, 490 U.S. 680, 695 (1989). However, the usefulness

and continuing viability of the Lemon test is questionable. See Am.

Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2079–82 (2019) (plurality

opinion); see also id. at 2092 (Kavanaugh, J., concurring) (“[T]his Court

no longer applies the old test articulated in Lemon[.]”).

Religious hostility

Although Murphy continues to advance his original denominational

preference claim, Pet. Cert. 9–13, despite having abandoned it in district

court, see Am. Compl. 11–14, there can be no doubt that such a claim is

moot given TDCJ’s recent execution protocol change permitting only

security personnel in the execution chamber, see Murphy, 139 S. Ct. at

1476 (Kavanaugh, J., respecting grant of stay) (“The new policy solves

the equal-treatment constitutional issue.”). Thus, TDCJ turns to the

Establishment Clause claims currently pending in district court, the first

being an allegation of religious hostility.

In addition to prohibiting religious preference, the Establishment

Clause “seeks to avoid” “a hostility toward religion.” Van Orden v. Perry,

545 U.S. 677, 704 (2005) (Breyer, J., concurring). For example, “a

campaign to obliterate items with religious associations may evidence

hostility to religion even if those religious associations are no longer in

the forefront.” Am. Legion, 139 S. Ct. at 2087.

TDCJ was not seeking to alter its execution protocol permitting

TDCJ chaplains into the execution chamber—it was defending it. That

defense, however, led to the delay in carrying out a just and

constitutional sentence. See Murphy, 139 S. Ct. at 1479 (Alito, J.,

dissenting from stay). And concern about future delay is undoubtedly the

reason TDCJ changed this policy “five days after the Court granted a

stay . . . [and made it] effective immediately.” Id. at 1476. This is because

the State has a “strong interest in the timely enforcement of valid

judgments of its courts” and concern over “inflict[ing] further emotional

trauma on the family and friends of the murder victim and the affected

community,” id. at 1481, rather than religious hostility. Moreover,

TDCJ’s present protocol still “allows all religious ministers . . . in the

viewing room” adjacent to the execution chamber, id. at 1476,

undermining any assertion that it is hostile to religion generally. TDCJ

did not—and has not—engaged in “a campaign to obliterate” religion.

Am. Legion, 139 S. Ct. at 2087. The claim fails.

ii.

Viewpoint discrimination

The allegation that TDCJ engages in religious viewpoint

discrimination also fails. Although such claims are normally reviewed

under strict scrutiny, see Larson, 456 U.S. at 251, the correctional setting

requires that additional deference be given to prison officials, see Turner

v. Safley, 482 U.S. 78, 89–90 (1987); see also Murphy, 139 S. Ct. at 1482–

83 (Alito, J., dissenting from stay). The Turner reasonableness test

proceeds as follows:

First, is there a “valid, rational connection between the prison

regulation and the legitimate governmental interest put

forward to justify it”? Second, are there “alternative means of

exercising the right that remain open to prison inmates”?

Third, what “impact” will “accommodation of the asserted

constitutional right . . . have on guards and other inmates,

and on the allocation of prison resources generally”? And,

fourth, are “ready alternatives” for further the governmental

interest available?

Beard v. Banks, 548 U.S. 521, 529 (2006) (quoting Turner, 482 U.S. at

89–90). Under that test, TDCJ’s limitations on civilians in the secure

area of the prison where executions take place, the Huntsville Unit,

passes constitutional muster.

On an execution day, the scene outside the Huntsville Unit is often

frenzied. Ex. I, at 1–2.7 Media arrive—and so do protestors. Id. Friends

and family of the victim arrive—and so do those for the condemned. Id.

TDCJ works inside and outside the prison to ensure the safety of all

visitors and staff and to prevent any disruptions in operations. Id. at 2.

Once the condemned is transferred to the Huntsville Unit, he or she

may meet with their spiritual advisor from 3:00 to 4:00 PM. ROA.236.

After that, TDCJ personnel remain behind in the secure areas so that

final preparations may be made. Ex. D, at 4:4–15. This includes a last

meal, and an opportunity for the condemned to shower and dress. Id. at

4:6–12. The condemned, however, may continue to speak with a spiritual

advisor by phone. Ex. E, at 15:17–21.

The execution process is intense. Ex. C, at 1. Emotions are

heightened. Id. “Security concerns peak in the hours before an execution,

and the introduction of contraband that could be used to harm staff or for

the offender to harm himself is a great concern.” Ex. R, at 1. When an

outside visitor enters the pre-execution area, TDCJ cannot strip search

All citations to exhibits refer to those filed by TDCJ and attached to their

motion for summary judgment in the district court unless otherwise stated.

them absent some level of suspicion. Id. at 1–2; see Thorne v. Jones, 765

F.2d 1270, 1276 (5th Cir. 1985) (requiring reasonable suspicion to strip

search a prison visitor). A less thorough pat down search is therefore

conducted, creating concerns about contraband. Ex. R., at 2. This concern

does not disappear just because the visitor is a religious one. Id. at 1

(listing incidents were religious volunteers have smuggled contraband

into TDCJ facilities). To limit that risk, the final in-person visitation is

observed, and contact is physically limited. Id. at 2. Permitting

unfettered access—unlimited time and fewer barriers—increases the

opportunity for contraband exchange, and therefore the risk to all

involved. Id.

Initially, there is no viewpoint discrimination in limiting civilian

access to the condemned during the last few hours before an execution.

While it is true that TDCJ uses chaplains during those hours, their role

is primarily secular. TDCJ generally tasks chaplains with: (1) conducting

religious worship services and education of their faith when a need

arises; (2) facilitating and encouraging religious exercise for all faiths;

and (3) secular administrative tasks such as notifying an inmate of a

family member’s death. Ex. J, at 2, § II(A); Ex. K, at 11:12–19. This broad

mandate requires knowledge of religious beliefs and practices of various

faiths, and knowledge of religious literature and resources for those

faiths. Ex. J, at 3, § III(B). For example, one deposed TDCJ chaplain

serves as an Islamic chaplain during Ramadan and is involved in a Pagan

religious group though his personal faith is Christianity. Ex. K, at 7:1–

13, 10:19–25.

Leading up to an execution, TDCJ chaplains act as a consistent and

calming presence, offer and serve pastries, facilitate phone calls, answer

questions about the process, and serve as an active listener. Ex. K, at

14:19–25; 15:1–7; Ex. O, at 4–5. The chaplains selected for this service

are uniquely qualified in calmly and compassionately interacting with

inmates. See, e.g., Ex. Q, at 4, ¶ 9. Chaplains are utilized instead of

security personnel because inmates view the latter as their captors while

the former are their advocates. Ex. K, at 12:21–25; 13:1–8. Although

there may be a general religious connotation associated with chaplains,

that plays little or no part in their presence and role during executions.

Rather, it is akin to the “benign acknowledgment of religion’s role,” Am.

Legion, 139 S. Ct. at 2087, at the end of one’s life. Should the condemned

want to discuss matters of faith, TDCJ chaplains will do so regardless of

personal faith preference. Ex. K, at 21:1–25; 22:1–20; Ex. O, at 7, 9.

Indeed, Murphy testified that a “chaplain’s role is to help with your

spiritual life, regardless of what your faith is.” Ex. E, at 6:9–13. Because

TDCJ chaplains do not serve in a faith-specific role, nor is their

utilization during the hours leading up to an execution faith based, there

is no religious viewpoint promotion or discrimination.

Even if the Establishment Clause is implicated under these facts,

there is a strong governmental interest in restricting pre-execution

access to the condemned “because there are operational and security

issues associated with an execution by lethal injection. Things can go

wrong and sometimes do go wrong in executions, as they can go wrong

and sometimes do go wrong in medical procedures. States therefore have

a strong interest in tightly controlling access” during an execution.

Murphy, 139 S. Ct. at 1475–76 (Kavanaugh, J., concurring in grant of

stay). The limited time during which an inmate cannot receive in-person

visits is rationally related to ensuring an execution process “without any

complications, distractions, or disruptions.” Id. at 1476.

There is also an alternative accommodation—the inmate may

personally meet with his or her spiritual advisor for an hour, and then

may continue to converse with that person over the phone. Not having

this civilian visitation limitation would strain an already overworked

security force dealing with the most scrutinized and fraught aspect of

their job, and it would introduce uncertainty where there can be none.

There are also no alternative fixes to ensure the safety and integrity of

the execution process absent removing TDCJ chaplains entirely from it

(which suggests the claim is not based in the Establishment Clause

because it actually seeks to remove what is nominally faith-related

individuals from the process). Ultimately, the use of TDCJ chaplains in

the hours following the transfer of the condemned to the Huntsville Unit

but before an execution is not unconstitutional.

Free Exercise Clause claim8

Free Exercise Clause claims are subject to the deferential standard

set forth in Turner. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349

(1987). And Murphy fails this test. See Murphy, 139 S. Ct. at 1476

(Kavanaugh, J., respecting grant of stay) (“And because States have a

To the extent that Murphy is raising a hostility-to-religion claim under the

Free Exercise Clause, see Pet. Cert. 16, he does not have such a claim pending in

district court, see Am. Compl. 11–16, which means it is forfeited (assuming

jurisdiction lies in this Court), see, e.g., Byrd v. United States, 138 S. Ct. 1518, 1527

(2018). Even if properly before the Court, there is no religious hostility behind the

changed protocol. See supra Argument V(C)(1)(i).

compelling interest in controlling access to the execution room, as

detailed in the affidavit of the [D]irector of the [TDCJ’s] Correctional

Institutions Division . . . the new Texas policy likely passes muster

under . . . the Free Exercise Clause.” (citation omitted)).

First, there is a rational justification in permitting only TDCJ

security personnel in the execution chamber—the safety and soundness

of the execution process as described above. Second, Murphy has an

alternative means of exercising his right—his spiritual advisor may meet

with him for an hour prior to the execution and may observe the

execution in the witness room. ROA.30. Third, the impact on TDCJ staff

would be significant. Murphy’s requested accommodation threatens to

reveal the confidential identities of the execution team (thus possibly

preventing TDCJ personnel from voluntarily assisting in the process)

and threatens the careful administration of the execution protocol

(including physical or emotional harm to TDCJ personnel, Murphy, and

the witnesses). Ex. L, at 5–6; Ex. C, at 2–3. And security is especially

important given Murphy’s crime—an escape from a TDCJ prison

involving hostage taking and the eventual murder of a police officer. Ex.

D, at 6:11–19. And fourth, Murphy does not point to a readily

implementable alternative “that fully accommodates [his] rights at de

minimis cost to valid penological interests[.]” Turner, 482 U.S. at 91.

Murphy does not prove a violation of the Free Exercise Clause.

RLUIPA claim

Under RLUIPA, a state cannot substantially burden an inmate’s

sincere religious exercise unless that burden is the least restrictive

means of furthering a compelling governmental interest. 42 U.S.C.

§ 2000cc-1(a). The inmate must initially prove that the state’s policy

imposes a substantial burden on his sincere religious exercise and, if

proven, the state must establish its compelling governmental interest

and that it is utilizing the least restrictive means to further that interest.

See Holt v. Hobbs, 135 S. Ct. 853, 862–63 (2015). This Court has

“emphasize[d] that although RLUIPA provides substantial protection for

the religious exercise of institutionalized persons, it also affords prison

officials ample ability to maintain security.” Id. at 866. Indeed, RLUIPA

does not “elevate accommodation of religious observances over an

institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722.

Murphy testified that he does not want his spiritual advisor to

touch him during the execution, nor is he concerned with the distance

between them. Ex. E, at 18:17–19; 19:19–23. Rather, he wants to recite a

chant with him during the process. Id. at 17:3, 10–11. But if Murphy’s

spiritual advisor is in the front of the viewing room, he will be but three

feet from Murphy and separated by plexiglass. Ex. H, at 2–3. And both

men already know the chant, so they can recite it together despite a

physical barrier. As Murphy admitted, what is important is “knowing [his

spiritual advisor] is there.” Ex. E, at 19:3–18. At best, TDCJ’s new

protocol represents an “[i]ncidental effect[] of [a] government program,

which may make it more difficult to practice certain religions, but which

ha[s] no tendency to coerce individuals into acting contrary to their

religious beliefs.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S.

439, 450–51 (1988). This is not a substantial burden.

If it is, there is a compelling interest in ensuring the safety and

integrity of the execution process, and TDCJ’s protocol excluding all nonemployees from the execution chamber is the least restrictive means to

achieve it. As discussed above, there are legitimate security concerns

surrounding an execution. Restricting introduction of civilians into the

process is the only way to ensure its integrity. See Murphy, 139 S. Ct. at

1475–76 (Kavanaugh, J., concurring in grant of stay). Any claim that a

background check could assuage security concerns simply fails to account

for accidental disruption, as well as its inability to screen out a lone wolf.

Ex L, at 6. And the training TDCJ personnel go through is extensive, in

addition to the significant on-the-job experience gained as a correctional

employee.9 Ex. K, at 12:1–18; Ex. L, at 5–6; Ex. M, at 10:4–25, 14:23–25,

15:1–18; Ex. N, at 2:17–22, 3:1–16. A civilian simply could not obtain this

level of training or trust. As TDCJ utilizes the least restrictive means to

further a compelling governmental interest, the RLUIPA claim fails.

CONCLUSION

Murphy fails to establish jurisdiction or show that there are

compelling grounds justifying the issuance of a writ of certiorari.

Consequently, Murphy’s petition for one should be denied.

Murphy mentions that his spiritual advisor regularly visited him in a TDCJ

facility for the past six years and that, at some point in the past, a TDCJ chaplain

was present in the execution chamber after only three and a half months of

employment. Pet. Cert. 11–13. As Justice Alito noted, “[v]isiting a living prisoner is

not the same as watching from a short distance . . . while a lethal injection is

administered.” Murphy, 139 S. Ct. at 1483 (Alito, J., dissenting from stay). For

example, before the execution, the visit with an outside spiritual advisor occurs with

the inmate in a cell with a “heavy steel screen mesh welded onto the bars so

that . . . there’s no contact.” Pet’r Ex. 13, at 54:7–9. And while Murphy is correct

about the prior chaplain’s employment length, that was more than ten years and

three directors ago, and it was still a TDCJ employee who underwent the six-weeklong security training that all chaplains receive. Ex. M, at 14:23–25, 15:1–18; Ex. N,

at 2:17–22, 3:1–16. Under newer directors, the chaplains who participated in

Murphy’s ultimately-stayed execution, for example, had about one and a half, five,

and six years’ service before entering the execution chamber. Pet’r Ex. 5, at 4–5.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

JEFFREY C. MATEER

First Assistant Attorney General

LISA TANNER

Acting Deputy Attorney General

For Criminal Justice

EDWARD L. MARSHALL

Chief, Criminal Appeals Division

GWENDOLYN S. VINDELL

Assistant Attorney General

MATTHEW OTTOWAY

Assistant Attorney General

State Bar No. 24047707

Counsel of Record

Post Office Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 936-1400

matthew.ottoway@oag.texas.gov

Attorneys for Respondents

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.