Reply Brief — Orlando Cordia Hall, Petitioner v. William P. Barr, Attorney General, et al.

Nos. 20-688 and 20A100

IN THE

Supreme Court of the United States

_________

ORLANDO CORDIA HALL

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

Execution Date: November 19, 2020 at 6:00 PM

_________

REPLY IN SUPPORT OF PETITION FOR

CERTIARARI AND EMERGENCY

APPLICATION FOR A STAY OF EXECUTION

_________

KATHRYN M. ALI

KAITLYN A. GOLDEN

HOGAN LOVELLS US LLP

555 Thirteenth Street,

N.W.

Washington, D.C. 20004

MARCIA A. WIDDER

104 MARIETTA STREET NW,

SUITE 260

ATLANTA, GA 30303

(404) 222-9202

PIETER VAN TOL

Counsel of Record

HOGAN LOVELLS US LLP

390 Madison Avenue

New York, NY 10017

(212) 918-3000

Pieter.vantol@hoganlovells.com

ROBERT C. OWEN

LAW OFFICE OF ROBERT C.

OWEN, LLC

53 WEST JACKSON BLVD., SUITE

1056

CHICAGO, IL 60604

Counsel for Orlando Cordia Hall

IN THE

Supreme Court of the United States

_________

Nos. 20-688 and 20A100

_________

ORLANDO CORDIA HALL.,

Petitioner,

v.

WILLIAM P. BARR, ATTORNEY GENERAL, et al.,

Respondents.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the D.C. Circuit

Execution Date: November 19, 2020 at 6:00 PM

_________

REPLY BRIEF FOR PETITIONER

_________

Orlando Cordia Hall respectfully petitions for a writ

of certiorari to review the judgment of the U.S. Court

of Appeals for the D.C. Circuit, and requests an emergency stay of his execution so that he can litigate his

claims.

INTRODUCTION

The government does not contest that Respondent

Barr deliberately scheduled Mr. Hall’s execution during the peak of an ever-worsening global pandemic

that has so far killed nearly 250,000 Americans. It

does not contest that Mr. Hall’s counsel cannot fulfill

their professional obligations without putting

(1)

2

themselves and their families at grave risk. It does not

contest that conducting a clemency investigation in

light of health risks, quarantine orders, and other restrictions would be functionally impossible. And it

does not contest that Appellee Barr has the power to

reschedule Mr. Hall’s execution date at any time.

Instead, the government argues that Mr. Hall unduly delayed in raising the claims presented by this

Petition. No. While this is a familiar refrain from the

government when an execution looms, it does not

work here. Everyone agrees that Mr. Hall’s claims did

not arise until September 30 at the earliest. And the

only reason his claims were filed so close to his execution date is because the government gave him such

scant notice of his execution to begin with.

Nor are the government’s arguments regarding Mr.

Hall’s likelihood of success on his clemency claims

availing. Much of the government’s brief is directed to

arguing that rote compliance with procedure is all

that due process and federal law requires. But the

core of Mr. Hall’s argument is that he has been arbitrarily denied access to the clemency process in the

first place. Federal courts have stayed executions on

far less egregious facts. In fact, moments ago, another

federal court stayed the execution of another federal

prisoner raising precisely the same claims that Mr.

Hall presents here. Unless this Court acts, Mr. Hall

will be put to death without opportunity for review

despite another court having found the claims at issue

to merit preliminary relief. Montgomery v. Barr, et al.,

1:20-cv-3261-RDM (D.D.C. Nov. 19, 2020), ECF No. 19

3

(Montgomery Order).1 That would be manifestly unjust.

The district court found the facts of this case “troubling.” Pet. App. 15a. The lower courts’ decisions to

disregard these troubling facts on the basis that Mr.

Hall has been afforded “access” to the clemency process in the most technical sense warrants review, and

a stay.2

1

While Judge Moss distinguished Mr. Hall’s case on

the basis that the district court had “noted that [he]

had 13 years to prepare a petition,” Montgomery Order at 19, that holding disregarded substantial contrary record evidence and thus was manifestly erroneous. See infra section III. Notably, Judge Moss credited the fact that Ms. Montgomery’s “execution date

came as a complete surprise.” Montgomery Order at

19. So too here. Among the things the district court

(and Judge Moss) ignored about Mr. Hall’s situation

is that until 10 days before the government decided

to set his execution amid the pandemic, he had been

protected from execution for 13 years by an injunction

to which the government had consented. See Order

Roane v. Gonzales, No. 1:05-cv-02337-TSC, ECF No.

68.

2

The government contends that the relief Mr. Hall

seeks is more properly characterized as an “injunction” and therefore he must provide a “significantly

higher justification” than the typical standard for a

stay. Opp. 2 (quoting Respect Maine PAC v. McKee,

562 U.S. 996, 996 (2010)). But Respect Maine PAC relied on the fact that granting the requested relief

4

I.

HALL DID NOT UNDULY DELAY

As a threshold matter, the government concedes

that the courts below declined to deny Hall relief on

the basis of delay. Opp. 9. The government also

acknowledges (as did the district court below) that Mr.

Hall’s claims did not ripen until September 30 at the

earliest. Opp. 16; Pet. App. 14a. Nevertheless, the

government contends that Mr. Hall delayed in filing

his claims in this litigation, and that this constitutes

an independent bar to relief. Opp. 16-17. This is

wrong on the facts and the law.

First, the facts. The government’s sole basis for accusing Mr. Hall of “delay” is its apparent belief that

he should have filed suit within days of receiving notice of his execution. Id. In fact, he did. Mr. Hall filed

this litigation—a seven-count complaint supported by

seven detailed witness declarations and based on

“many events” that the district court acknowledged

did not “occur[ until] several days before it was filed,”

Pet. App. 14a—within 34 days after getting that notice.3 The panel did not disturb these findings; in fact,

would be a “judicial alteration of the status quo.” 562

U.S. at 996. Mr. Hall has sought the opposite relief: preserving the status quo (by keeping him alive)

while his claims for relief are pending.

3

The speed with which Mr. Hall filed stay petitions in

unrelated litigation, Opp. Br. 16-17, is irrelevant to

whether this case—which did not become ripe until after his execution was set—was delayed. Moreover, the

reason the injunction lasted for 13 years is not the result of delay by Mr. Hall, but rather because the

5

it did not even so much as acknowledge the government’s arguments about delay. Pet App 2a-7a.

Turning to the law, the government cites Bucklew v.

Precythe, 139 S. Ct. 1112 (2019) and Gomez v. U.S.

Dist. Ct., 503 U.S. 653 (1992) for its extraordinary contention that Mr. Hall’s supposed delay—which by the

government’s own concession is at most days’ long—

precludes relief. Opp. 16. In Bucklew, the plaintiff

waited until just 12 days before his execution to challenge the state’s lethal injection protocol, id. at 1120,

and received a last-minute stay from this Court. Bucklew v. Lombardi, 572 U.S. 1131 (2014). Only after five

more years of litigation on the same claims, including

two appeals and two “11th-hour” stays, did this Court

find further delay unwarranted. 139 S. Ct. at 1134.

And in Gomez, the delay was “more than a decade”

long. 503 U.S. at 654. he Court should not impose

such a harsh penalty in a death penalty case, where

the stakes could not be higher, particularly since the

government cites no case supporting its argument.4

government dragged its feet in introducing a new execution protocol.

4

That other prisoners have submitted clemency applications during the pandemic, Opp. 19, is likewise

irrelevant. Just as in pursuing a defense strategy,

what may have been adequate for one prisoner is not

de facto sufficient for another. And unlike Mr. Hall,

the prisoners the government points to had access to

resources to pursue clemency before the pandemic.

Dist. Ct. Dkt. 3 at 7. Further, the fact that they

6

II.

MR. HALL

REGULATE

FUNCTION.

DOES NOT SEEK TO

A PURELY EXECUTIVE

The government’s argument that Mr. Hall asks this

Court to regulate an exclusively executive function is

wrong. Opp. 18. No court below has made any such

finding, nor has Mr. Hall advanced such an argument.

All Mr. Hall seeks to vindicate his constitutionally

guaranteed right to meaningfully access the clemency

process with a guarantee of minimal due process in

the clemency procedure.5

III. THE DECISION BELOW IS MANIFESTLY

INCORRECT AND MR. HALL IS LIKELY

TO SUCCEED ON THE MERITS.

A.

Mr. Hall Has Been Denied Access To The

Clemency Process In Violation Of Due

Process.

The government asks this Court to misconstrue Mr.

Hall’s legal claims while ignoring the abundance of

factual evidence that he has provided in support. It

should decline that invitation.

submitted clemency applications does not mean those

applications were adequate.

5

While federal courts have avoided intruding into the

executive’s prerogative to make clemency decisions,

courts have had no trouble intervening to ensure

meaningful access to the clemency process. See e.g.,

Young v. Hayes, 218 F.3d 850 (8th Cir. 2000); Wilson

v. U.S. Dist. Ct. for N. D. Cal., 161 F.3d 1185, 1187

(9th Cir. 1998).

7

1. The Existence Of Procedure Does Not Guarantee Meaningful Access.

The government does not dispute that Woodard is

the “controlling Supreme Court precedent,” Pet. App.

17a, and that, “at a minimum,” clemency procedures

require “adequate notice and opportunity to be heard.”

Id. Rather, the government contends that because

Mr. Hall was permitted to file a clemency petition and

told it would be reviewed, his rights have been safeguarded. But “meaningful access” to clemency, which

this Court has required, Harbison v. Bell, 556 U.S.

180, 194 (2009), demands that the process afforded

beo more than “a meaningless ritual.” Douglas v. People of State of Cal,, 372 U.S. 353, 358 (1963). A man’s

life hangs in the balance, and through its choice to

schedule Mr. Hall’s execution in the midst of a raging

health crisis that prevents Mr. Hall’s counsel from

conducting any investigation, the government has “arbitrarily denied [him] any access to its clemency process.” Woodard, 523 U.S. at 289.

The government doubles down on its argument that

process, even devoid of value, is all that is required.

But what it has provided Mr. Hall stops far short of

even the “minimal” process afforded in Woodard. See

Pet. 21-22

The courts below also incorrectly concluded that Mr.

Hall could have filed his clemency petition before the

start of the pandemic or at any point since 2007, Pet.

App. 5a, 19a, which the government parrots. Opp. 2122.. This ignores the substantial record evidence that

(i) much of the evidence supporting Mr. Hall’s case for

mercy did not exist until recently; (ii) during the entire “thirteen year” period the panel suggested Mr.

8

Hall could have been developing his clemency claims,

he was protected by an injunction that prevented his

execution, and his counsel faced severe resource limitations that made a clemency investigation impossible; and (iii) clemency is by design a mechanism of last

resort, designed to be filed only after litigation has essentially ceased. See Pet. 22-24; see also 65 FR 48379,

48380 (“Because clemency is a remedy of last resort, a

capital defendant should file his clemency petition

only after the predictably available judicial proceedings concerning the case . . . are terminated . . . Accordingly, once an execution date has been set . . . the

defendant may file a request for reprieve”).

2. The Panel Manifestly Erred In Concluding

That Mr. Hall’s Statutory Right to Counsel

Pursuant To 18 U.S.C. ¶ 3599 Was Satisfied.

That Mr. Hall had the formality of appointed counsel does not mean that his counsel was able to provide

“meaningful” representation as is Mr. Hall’s right. 6

Indeed, the government does not contest any of the

key facts showing that in Mr. Hall’s case, his counsel

was arbitrarily prevented from adequately representing him in his clemency proceedings. It does not deny

that it scheduled Mr. Hall’s execution with the shortest notice period in the history of the modern federal

death penalty, and during a worsening global

6

The government’s argument that Mr. Hall was provided access to phone calls with counsel misses the

point. Opp. 22. Mr. Hall does not argue that he could

not speak with counsel, but that his counsel could not

conduct an adequate investigation necessary for a

meaningful clemency petition.

9

pandemic. Nor does it deny that while travel is required to conduct an adequate clemency investigation,

Mr. Hall’s appointed counsel suffer from health conditions that make travel during the pandemic unsafe.

This necessarily denies Mr. Hall “meaningful access

to the ‘fail-safe’ of our justice system.” Harbison, 556

U.S. at 194 (citation omitted). Indeed, another federal

court granted a stay to another condemned prisoner

on the very same grounds Mr. Hall has raised here.

Montgomery v. Barr, et al., 1:20-cv-3261-RDM (D.D.C.

Nov. 19, 2020), ECF No. 19.

B.

The Panel’s Order Would Allow Mr. Hall

To Be Executed In Accordance With An

Execution Protocol That Constitutes Ultra Vires Action In Violation Of The APA.

The government makes three arguments in opposition to Mr. Hall’s showing that the BOP’s action is ultra vires, but none of the arguments have any merit.

First, the Government asserts that Hall is precluded

from making the ultra vires claim because the district

court ruled against him on the issue and the ruling

was not appealed. Opp. 23. The government similarly

argued earlier, in a November 14, 2020 opposition

brief in a related proceeding, that the district court’s

ultra vires ruling was non-final and non-appealable

See Appellee Br. 44-45, In re Matter of the Fed. Bureau of Prisons’ Execution Protocol Cases, No. 20-5329

(D.C. Cir. Nov. 14, 2020). In response, the plaintiffs

in the consolidated action requested entry of partial

final judgment on the ultra vires claim and, on November 16, 2020, the district court granted the request. Order, In re Matter of the Fed. Bureau of Prisons’ Execution Protocol Cases, No. 19-mc-00145-TSC

10

(D.D.C. Nov. 16, 2020), ECF No. 315. It was only then

that the district court’s ruling became final and appealable. Therefore, issue preclusion does not apply

to Mr. Hall’s ultra vires claim. Indeed, the government made the very same preclusion argument below

and the panel rejected it by considering the merits of

the ultra vires issue rather than holding that it was

precluded. Pet. App. 5a-7a.

Second, the government relies on Judge Katsas’ concurrence in earlier execution protocol litigation as evidence that Mr. Hall’s “argument is wrong.” Opp. 23.

Judge Katsas was the only panel member who accepted the government’s interpretation of the U.S.

Marshal’s role under the protocol, and it is telling that

the panel below did not adopt his reasoning (after

making note of it). Pet. App. 6a. In any event, Judge

Katsas’ concurrence is not binding and there is good

cause for the Court to reach a different conclusion.

Mr. Hall pointed out in his opening brief that the unfettered ability of the BOP to alter the procedures in

the execution protocol—which, notably, the Government does not dispute— contradicts the FDPA’s express mandate that the U.S. Marshal shall supervise

the implementation of executions. It is undisputed

that, under the execution protocol, the BOP has the

power to strip the U.S. Marshal of any role at all,

which flies in the face of the FDPA’s plain language

and Congress’ selection of the U.S. Marshal as the sole

supervisor of executions.

Third, the government cites the panel’s erroneous

holding on the standard for preliminary injunctions

and stays, in which it required a link between every

claim at issue and irreparable harm. See Opp. 24-25.

11

There is no case law support for such a standard. The

panel cited Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008), but, as discussed in Mr. Hall’s opening brief, Winter does not impose such a requirement.

The government cites other cases for the unremarkable proposition that a movant must show that he

would suffer harm arising out of the claims in the

case. Here, Mr. Hall has demonstrated that, absent a

preliminary injunction or a stay, he will suffer irremediable injury as a result of his execution. See infra

section IV. No further showing on irreparable harm

is necessary.

IV.

WITHOUT A STAY, MR. HALL WILL

SUFFER IRREPARABLE HARM.

There is an unmistakable “likelihood of irreparable

harm if the judgment is not stayed.” Philip Morris

USA Inc. v. Scott, 561 U.S. 1301, 1302 (2010). Without

a stay, Mr. Hall will be executed amid violations of his

constitutional and statutory rights, this Court will be

stripped of jurisdiction to consider the petition. That

would constitute an “irremediable” harm. Ford v.

Wainwright, 477 U.S. 399, 411 (1986).

And “when, as in this case, ‘the normal course of appellate review might otherwise cause the case to become moot,’ * * * issuance of a stay is warranted.”

Garrison v. Hudson, 468 U.S. 1301, 1302 (1984)

(Burger, C.J., in chambers) (citing In re Bart, 82 S. Ct.

675, 676 (1962) (Warren, C.J., in chambers)). Because

“the balance of harms favors applicants,” id., the

Court should stay Mr. Hall’s execution.

12

V.

THE

BALANCE

OF

EQUITIES

STRONGLY FAVORS A STAY.

Failure to grant a stay will “have the practical consequence of rendering the proceeding moot” or otherwise cause irreparable harm to Mr. Hall. Mikutaitis

v. United States, 478 U.S. 1306, 1309 (1986) (Stevens,

J., in chambers). The government would not “be significantly prejudiced by an additional short delay,”

id.—particularly given that until just two months ago,

the government was content to permit a stay preventing Mr. Hall’s execution for 13 years to stand. Id. “In

light of these considerations,” this Court should “grant

the application.” Id.

CONCLUSION

For the foregoing reasons, and those discussed in the

Petition for Writ of Certiorari and Mr. Hall’s Emergency Application for a Stay of Execution, the Petition

and Emergency Application for a Stay of Execution

should be granted.

Respectfully submitted,

KATHRYN M. ALI

KAITLYN A. GOLDEN

HOGAN LOVELLS US LLP

555 Thirteenth Street,

N.W.

Washington, D.C. 20004

PIETER VAN TOL

Counsel of Record

HOGAN LOVELLS US LLP

390 Madison Avenue

New York, NY 10017

(212) 918-3000

Pieter.vantol@hoganlovells.com

MARCIA A. WIDDER

ROBERT C. OWEN

13

104 MARIETTA STREET

NW, SUITE 260

ATLANTA, GA 30303

(404) 222-9202

NOVEMBER 19, 2020

LAW OFFICE OF ROBERT C.

OWEN, LLC

53 WEST JACKSON BLVD.,

SUITE 1056

CHICAGO, IL 60604