Application — Orlando Cordia Hall, Applicant v. T.J. Watson, Warden

No. 20-____

IN THE

Supreme Court of the United States

_________

ORLANDO CORDIA HALL

Petitioner,

v.

T.J. WATSON, WARDEN, USP TERRE HAUTE,

Respondent.

_________

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

_________

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

ii

PARTIES TO THE PROCEEDING

Orlando Cordia Hall, petitioner on review, was the

plaintiff-appellant below.

T.J. Watson, Complex Warden, U.S. Penitentiary

Terre Haute, is respondent on review and was the

defendant-appellee below.

iii

RELATED PROCEEDINGS

There are several related proceedings, as defined in

Supreme Court Rule 14.1(b)(iii).

This appeal originates from an Order from the

District Court for the Southern District of Indiana.

See Order, Hall v. Watson, No. 2:20-cv-00599 (S.D.

Ind. Nov. 18, 2020), Dkt. #18. The District Court

case resulted in one appeal to the Seventh Circuit,

which was decided on November 19, 2020. See Hall

v. Watson (7th Cir. Nov. 19, 2020).

Mr. Hall previously challenged the same criminal

conviction or sentence on direct appeal in United

States v. Orlando Cordia Hall, No. 96-10178 (5th

Cir.). The Fifth Circuit denied relief, 152 F.3d 381

(5th Cir. 1998), and this Court denied certiorari, see

526 U.S. 1117(1999).

Mr. Hall also previously challenged the same criminal conviction or sentence on proceedings pursuant

to 28 U.S.C. § 2255. See Hall v. United States, Nos.

4:00–CV–422–Y, 4:94-CR-121 (N.D. Tex. Aug. 24,

2004). On July 5, 2006, the Fifth Circuit denied Mr.

Hall a certificate of appealability. United States v.

Hall, 455 F.3d 508 (5th Cir. 2006). The Supreme

Court denied certiorari on April 16, 2007. Hall v.

United States, 549 U.S. 1343 (2007).

Mr. Hall twice requested leave from the Fifth Circuit to file successive habeas petitions pursuant to 28

U.S.C. § 2255, and was twice denied. In re Orlando

Hall, No. 16-10670, Doc. 00513555153 (5th Cir. June

21, 2016); In re Orlando Hall, No. No. 19-10345, Doc.

00515621458 (5th Cir. Oct. 30, 2020).

Mr. Hall challenged the same criminal conviction

on proceedings pursuant to a petition for writ of

iv

habeas corpus under 28 U.S.C. § 2241 by the United

States District Court for the Southern District of

Indiana, challenging his conviction under 18 U.S.C. §

924(c). On November 18, 2020, the Seventh Circuit

denied relief. See Order, Hall v. Watson, No. 2003216 (7th Cir., Nov. 18, 2020) Dkt. #11.

A related action was filed in the District of Columbia District Court. Judgment in that action was

entered November 16, 2020. See Order, Hall v. Barr

et al., No. 20-cv-03184 (D.D.C. Nov. 6, 2020), Dkt.

#24; see also Mem. Op., Hall v. Barr et al., No. 20-cv03184 (D.D.C. Nov. 16, 2020), Dkt. #23.

IN THE

Supreme Court of the United States

_________

No. 20_________

ORLANDO CORDIA HALL.,

Petitioner,

v.

T.J. WATSON,

Respondent.

_________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

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

_________

EMERGENCY APPLICATION FOR A STAY OF

EXECUTION

_________

To the Honorable Brett M. Kavanaugh, Associate

Justice of the United States and Circuit Justice for

the Seventh Circuit:

Orlando Cordia Hall is a Black man who was convicted and sentenced to die by an all-White jury.

One of the two prosecutors who picked that all-White

jury has twice been adjudicated to have violated

Batson—once by this Court in Miller-El and subsequently by the Fifth Circuit.

The case concerns whether Mr. Hall will ever be

able to raise his claims that his conviction and sen(1)

2

tence were obtained in violation of Batson v. Kentucky, and that his federal death sentence is the

result of racial discrimination in the jury selection

process. No court has ever heard or considered the

myriad ways that racial bias distorted Petitioner’s

trial, conviction, and death sentence because at the

time of trial and Mr. Hall’s § 2255 proceedings,

evidence of the prosecutor’s history of Batson violations was not known..

And if the decision of the court below is permitted

to stand, Petitioner will be executed without ever

having had an opportunity to litigate his claims,

despite the fact that race discrimination is so pernicious, so nefarious, and contrary to our values that

tolerating its influence in any criminal case, let alone

one that will end in an execution, is manifestly

unjust. Race discrimination is so pernicious, so

nefarious, and contrary to our values that any

amount in a criminal trial is manifestly unjust that

tolerating its influence in any criminal case, let alone

one that will end in an execution, is manifestly

unjust.

Despite the statutory language in 28 U.S.C. §§

2241 and 2255 and the weight of precedent, the

panel majority found that Petitioner had no procedural avenue to bring his claims and erred in (1)

summarily concluding that § 2241 does not provide

an avenue for relief, without undertaking any substantive review of circuit precedent or engaging in

any statutory interpretation and (2) disregarding the

weight of new evidence that racial discrimination

unconstitutionally tainted a federal death sentence,

which this Court has given exceptional importance.

3

This Court should stay Mr. Hall’s execution pending disposition of the pending petition for a writ of

certiorari. This case satisfies each consideration

relevant to that determination.

There is “a reasonable probability” that four Justices will vote to grant certiorari and “a fair prospect”

that this “Court will conclude that the decision below

was erroneous.” Indiana State Police Pension Trust

v. Chrysler LLC, 556 U.S. 960, 960 (2009) (per curiam) (internal quotation marks omitted). The panel’s

decision declined to assess Mr. Hall’s Batson claim,

instead foreclosing relief due to an overly narrow

interpretation of 28 U.S.C. § 2255(e)’s “savings

clause,” which conflicts with its own prior decisions.

This was manifestly erroneous, and allowing the

government to execute Mr. Hall without even permitting review of the claims he raised, which the

district court characterized as “extremely serious,”

Pet. App. 25a, would be manifestly unjust.

Mr. Hall will suffer irreparable harm absent a stay.

Were Mr. Hall’s execution to go forward without an

opportunity to fully litigate his important constitutional claims, Mr. Hall would suffer “irremediable”

harm. Ford v. Wainwright, 477 U.S. 399, 411 (1986)

(plurality op.). Failure to stay the mandate also

risks

the

“irreparable

harm”

of

“foreclos[ing] * * * certiorari review by this Court.”

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

(Burger, C.J., in chambers).

Although this is not a “close case” where consideration of the equities is warranted, they too favor a

stay. Indiana State Police Pension Trust, 556 U.S. at

960 (internal quotation marks omitted). Any mar-

4

ginal harm the government might face from a potentially short stay pending resolution of the petition for

a writ of certiorari pales in comparison to the irreversible harm that “[r]efusing a stay may visit” on

Mr. Hall. Philip Morris USA Inc. v. Scott, 561 U.S.

1301, 1305 (2010) (Scalia, J., in chambers). The

public interest in ensuring that constitutional rights

are vindicated—an interest that is particularly

important in the context of an execution—and judicial economy favor a stay, too.

Mr. Hall thus respectfully asks that this Court stay

his execution pending disposition of his petition for a

writ of certiorari. Because his execution is scheduled

for tonight (November 19, 2020) at 6:00 p.m. EST,

Mr. Hall respectfully asks this Court to order briefing on this application before then, or administratively stay the execution pending disposition.

OPINIONS BELOW

The Seventh Circuit denied relief in a decision dated November 19, 2020. Pet. App. 1a-3a. The District

Court’s order denying the preliminary injunction is

available at Appendix 001 attached hereto. Pet. App.

4a-25a.

JURISDICTION

The Seventh Circuit entered judgment on November 19, 2020. Pet. App. 2a-3a. This Court’s jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY AND CONSTITUTIONAL

PROVISIONS INVOLVED

28 U.S.C. § 2241(a) provides:

5

Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts and any circuit judge within their

respective jurisdictions. The order of a circuit

judge shall be entered in the records of the

district court of the district wherein the restraint complained of is had.

28 U.S.C. § 2255(e) provides:

An application for a writ of habeas corpus in

behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears

that the applicant has failed to apply for relief, by motion, to the court which sentenced

him, or that such court has denied him relief,

unless it also appears that the remedy by motion is inadequate or ineffective to test the

legality of his detention.

28 U.S.C. § 2255(h) provides:

A second or successive motion must be certified as provided in section 2244 by a panel of

the appropriate court of appeals to contain—

(1) newly discovered evidence that, if proven

and viewed in light of the evidence as a

whole, would be sufficient to establish by

clear and convincing evidence that no reasonable factfinder would have found the movant

guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on

collateral review by the Supreme Court, that

was previously unavailable.

6

The Fifth Amendment to the U.S. Constitution,

U.S. Const., amend. IV provides:

No person shall * * * be deprived of life, liberty, or property, without due process of

law[.]

The Sixth Amendment to the U.S. Constitution,

U.S. Const., amend. VI provides:

In all criminal prosecutions, the accused shall

* * * have compulsory process for obtaining

witnesses in his favor, and to have the Assistance of Counsel for his defense.

The Eighth Amendment to the U.S. Constitution,

U.S. Const., amend. VIII provides:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted

The Fourteenth Amendment to the U.S. Constitution, U.S. Const., amend. XIV provides:

No State shall * * * deprive any person of life,

liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the equal protection of the laws.

STATEMENT

A. Factual and Procedural History

Mr. Hall was indicted in the fall of 1994 on six

counts of: (1) kidnapping in which a death occurred,

(2) conspiracy to commit kidnapping, (3) traveling in

interstate commerce with intent to promote the

possession of marijuana with intent to distribute, (4)

using a telephone to promote the unlawful activity of

extortion, (5) traveling in interstate commerce with

7

intent to promote extortion, and (6) using a carrying

a firearm during a crime of violence. In February

1995, the government gave notice that it intended to

seek the death penalty against him. The government

did not seek the death penalty against three of Mr.

Hall’s co-defendants.1

The government made the decision to prosecute in

the United States District Court for the Northern

District of Texas, which was 80.81% White and

10.41% Black, according to data from the 1990

Census. It could have tried Mr. Hall in the Pine

Bluff Division of the Eastern District of Arkansas,

which was 35.85% Black in 1990.

Voir dire lasted from October 2–19, 1995. Assistant

United States Attorney Paul Macaluso played a

critical role in selecting that jury. After strikes for

cause, five qualified Black venire members remained.

The government struck four of them. The fifth, who

had expressed strong pro-death penalty views in her

juror questionnaire and during questioning, was

struck by the defense. Mr. Hall’s defense counsel

raised a Batson challenge at trial on the basis that

“the government . . . used preemptory strikes on four

black jurors . . . .” The district court noted its view

that this was likely “insufficient to present prima

facie case” and, in response the government provided

1

The fourth co-defendant, Bruce Webster, recently had his

death sentenced vacated and affirmed by the Seventh

Circuit on the basis that he is intellectually disabled.

Webster v. Watson, 975 F.3d 667 (7th Cir. 2020). As a result,

of the individuals convicted of these crimes, only Mr. Hall

remains under a death sentence.

8

ostensibly “neutral” reasons for its strikes. The

government stated that “the Court refused to grant []

challenges” to the four Black jurors in question.

However, the government had sought to strike only

two of the four, Frances Miller and Lawrence Barrett, for cause. A colloquy followed, at the end of

which the court denied the Batson challenge without

allowing the defense to address the stated reasons

for the government’s exercise of its peremptory

strikes.

There were two Black jurors who were not challenged for cause. Potential Black juror Amy Evans

wrote in her juror questionnaire that she supported

the death penalty “depend[ing] on the nature of the

crime,” that it was appropriate for “brutal senseless

murders,” and that it served “as a means of deterrent

from committing the crime.” She testified that even

if the option of a life sentence without parole was

available, she could vote for the death penalty. The

government claimed that it struck Ms. Evans, because she “was very, very hesitant on her views on

the death penalty.” However, the government seated

White jurors who gave similar testimony. For example, White prospective juror Mary Ann Herring

provided both “yes” and “no” answers on her questionnaire in response to whether she could support a

death sentence where life without parole was also an

option. She later testified during voir dire that the

death penalty should “depend on the circumstances”

and “on the crime.” The government further cited

“concern[]” that Ms. Evans had two brothers-in-law

in prison, but asked her no questions about this

9

topic, and seated multiple White jurors with family

members in or recently released from prison.

Potential Black juror Billie Lee stated in her juror

questionnaire that she favored the death penalty for

“extremely brutal” crimes and it should be available

for “child molesters who kill their victims.” During

voir dire, she testified that she believed the death

penalty was warranted for “[a]nything that involves

children, murder of children, [and] cruelty to children” (Mr. Hall was tried for the killing of a minor).

She also testified that, though she may initially lean

toward a life sentence over the death sentence, she

could impose a death sentence “depend[ing] on

evidence, the cruelty of the act, all of that would have

to be considered.” The government nevertheless

claimed that it struck Ms. Lee because of her antideath penalty views. Again, however, the government accepted White jurors who expressed similar

views. For example, just like Ms. Lee, seated white

juror Stacey Donaldson had selected on her jury form

that despite deep misgivings about capital punishment, “as long as the law provides for it, I could

assess it, under the proper set of circumstances.” And seated juror Cindy Boggess testified during

voir dire that she had always connected the death

penalty to ”the murder of a child or really coldblooded, calculated . . . sort of murder,” and observed that

“it would have to be one that was literally no doubt

whatsoever, otherwise . . . I could not do it.” The

government also claimed that it struck Ms. Lee that

she was “on a prior jury trial for robbery and found

the defendant not guilty.” This was untrue. And,

once again, the government accepted a White juror

10

who served on a prior jury and acquitted a defendant

on a charge of murder. Upon noticing this mistake,

the government changed its story, claiming that Ms.

Lee was struck be-cause she “had a brother-in-law

who was a criminal defense attorney, which caused

me some concern.” But, again, the government

asked Ms. Lee no questions about this topic and

seated a White juror whose brother-in-law was a

public defender.

Trial proceeded from October 24-31. The defense

presented no evidence and waived closing argument.

On October 31, 1995, the all-White jury convicted

Mr. Hall of all counts. The penalty phase commenced the following morning. From November 1-3,

the same all-White jury heard testimony and argument regarding Mr. Hall’s sentence. On November

6, 1995, the jury recommended the death penalty.

The district court entered judgment on February

12, 1996, formally sentencing Mr. Hall to death. Mr.

Hall appealed and the Fifth Circuit affirmed.

B. Subsequent Developments Following Mr.

Hall’s Conviction.

Mr. Hall appealed his conviction and that appeal

was denied by the Fifth Circuit. United States v.

Hall, 152 F.3d 381 (5th Cir. 1998), cert. denied, 526

U.S. 1117 (1999), denying reh’g on Oct. 1, 1998. In

May 2000, Mr. Hall moved to vacate his conviction

and sentence pursuant to 28 U.S.C. § 2255. United

States v. Hall, No. 4:94-cr-00121-Y, Doc. 958 (N.D.

Tex. May 16, 2020). The district court ultimately

denied his claims. Hall v. United States, No. 4:00-cv00422-Y, 2004 WL 1908242, at *37 (N.D. Tex. Aug.

24, 2004). Mr. Hall sought permission to appeal

11

from both the district court and the Fifth Circuit.

Leave to appeal was denied. United States v. Hall,

455 F.3d 508 (5th Cir. 2006), cert. denied, 549 U.S.

1343 (2007).

After Mr. Hall’s 28 U.S.C. § 2255 proceedings concluded, this Court decided Miller-El v. Dretke, 545

U.S. 231 (2005), holding that the Texas prosecutors

involved, including Paul Macaluso—who prosecuted

Mr. Hall and helped select the all-White jury that

convicted him and sentenced him to death—violated

Batson by striking Black jurors. The Court specifically rejected the justifications that Macaluso and

others had proffered for their exercise of peremptory

strikes in that case, holding unequivocally that they

were pretextual. Of particular importance, this Court

credited evidence that the Dallas County District

Attorney’s Office—where Macaluso trained and

practiced for 15 years—“had adopted a formal policy

to exclude minorities from jury service. . . . A manual

entitled ‘Jury Selection in a Criminal Case’ [sometimes known as the Sparling Manual] was distributed to prosecutors.” 545 U.S. at 264. The Court found

that “the manual was written in 1968” and “remained in circulation until 1976, if not later.” Id.

(quoting Miller-El v. Cockrell, 537 U.S. 322, 334

(2003)).

The Sparling Manual was unequivocal in its discriminatory directives. Most importantly for the

present case, it advocated to avoid minority jurors

because “[m]inority races almost always empathize

with the Defendant.” Miller-El v. Dretke, No. 039659, 2004 WL 2899955, *99-114 (2004) see also id.

(“You are not looking for any member of a minority

12

group which may subject him to oppression – they

almost always empathize with the accused.”). The

manual further advocated against Jewish jurors

because they “have a history of oppression and

generally empathize with the accused.” And about

women jurors it stated, “I don’t like women jurors

because I can’t trust them . . . Young women too

often sympathize with the Defendant; old women

wearing too much make-up are usually unstable, and

therefore are bad State’s jurors.” Id. Realizing that

“[i]t is impossible to keep women off your jury,” the

manual instructed prosecutors to “try to keep the

ratio at least seven to five in favor of men.” Id.

The Court also noted that “[t]he prosecutors used

their peremptory strikes to exclude 91% of the eligible African–American venire members,” a disparity

“unlikely to [be] produce[d]” by “[h]appenstance.” Id.

at 241. The Court also instructed that a “side-by-side

comparison[] of some black venire panelists who

were struck [with] white panelists allowed to serve”

is “[m]ore powerful than . . . bare statistics.” Id.

Thus, “[i]f a prosecutor’s proffered reason for striking

a Black panelist applies just as well to an otherwisesimilar nonblack who is permit-ted to serve, that is

evidence tending to prove purposeful discrimination

to be considered at Batson’s third step.” Id.

Four years later, the Fifth Circuit determined, in a

separate case, that Macaluso had once again struck

Black jurors on the basis of their race in violation of

Batson. See Reed, 555 F.3d at 382 (“One of the same

lawyers that conducted the voir dire in Miller–El’s

case, Paul Macaluso, also questioned prospective

jurors for Reed’s trial”). Like this Court, the Fifth

13

Circuit credited evidence concerning the Sparling

manual, noting that given “the historical evidence of

racial bias among the[] prosecutors” (including

Macaluso), “we view this exact same evidence as

persuasive here.” Id.

Also after Mr. Hall’s conviction, appeal, and § 2255

proceedings, new data became available demonstrating that the federal death penalty has been disproportionately meted out based on race—and particularly in Texas, where Mr. Hall was prosecuted. The

data shows that federal prosecutors in Texas were

nearly six times more likely to request authorization

to seek the death penalty against a Black defendant

than a non-Black defendant. Authorization was

nearly eight times more likely to be granted in cases

with a Black defendant than a non-Black defendant.

And a death verdict was nearly sixteen times more

likely to be rendered in a case with a Black defendant than a non-Black defendant. In the Northern

District of Texas, where Mr. Hall was sentenced, the

racial disparity was consistent with that seen across

all four Texas federal districts and even “slightly

greater.”

On November 12, 2020, Mr. Hall filed a petition for

habeas corpus relief in the district where he is confined, the United States District Court for the Southern District of Indiana.

He contemporaneously

sought a stay of his execution. Mr. Hall’s motion was

denied on November 17, 2020. Mr. Hall’s subsequent

appeal was dismissed on November 19, 2020.

The execution is scheduled to go forward today,

November 19, 2020, at 6:00 pm.

REASONS FOR GRANTING THE STAY

14

To obtain a stay pending the disposition of a petition for a writ of certiorari, the applicant must

demonstrate “(1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari or to note probable jurisdiction; (2) a fair prospect that a majority of the Court

will conclude that the decision below was erroneous;

and (3) a likelihood that irreparable harm will result

from the denial of a stay.” Indiana State Police

Pension Trust, 556 U.S. at 960 (quoting Conkright v.

Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J.,

in chambers)). “ ‘[I]n a close case it may [also] be

appropriate to balance the equities,’ to assess the

relative harms to the parties, ‘as well as the interests

of the public at large.’ ” Id. (quoting Conkright, 556

U.S. at 1402). Those standards are satisfied here.

I.

THE

PETITION

PRESENTS

A

COMPELLING CASE FOR CERTIORARI,

AND

THERE

IS

A

REASONABLE

PROBABILITY THAT THIS COURT WILL

GRANT REVIEW.

Mr. Hall’s petition raises important questions regarding two separate issues. Mr. Hall need only show

that certiorari is likely as to one. Despite the statutory language in 28 U.S.C. §§ 2241 and 2255 and the

weight of precedent, the panel majority found that

Petitioner had no procedural avenue to bring his

claims and erred in (1) summarily concluding that §

2241 does not provide an avenue for relief, without

undertaking any substantive review of circuit precedent or engaging in any statutory interpretation and

(2) disregarding the weight of new evidence that

racial discrimination unconstitutionally tainted a

15

federal death sentence, which this Court has given

exceptional importance.

II.

THERE IS A FAIR PROSPECT THAT

THIS COURT WILL HOLD THAT THE

SEVENTH CIRCUIT’S DECISION WAS

ERRONEOUS.

There is at least “a fair prospect” that this Court

will conclude the Seventh Circuit erred with respect

to at least one of the two questions presented in the

petition. At this stage, Mr. Hall need not show that

outcome is a certainty (or anything close to certainty). See Araneta v. United States, 478 U.S. 1301,

1304 (1986) (Burger, C.J., in chambers) (“such matters cannot be predicted with certainty”); Bd. of

Educ. of City of L.A. v. Super. Ct. of Cal., Cty. of L.A.,

448 U.S. 1343, 1347 (1980) (Rehnquist, J., in chambers) (comparing this exercise to “the reading of tea

leaves”). Instead, the arguments in the petition need

pass only the threshold of “plausibility.” John Doe

Agency v. John Doe Corp., 488 U.S. 1306, 1310 (1989)

(Marshall, J., in chambers); accord California v. Am.

Stores Co., 492 U.S. 1301, 1306 (1989) (O’Connor, J.,

in chambers). Although it is enough to make that

showing with respect to any of the questions presented in the petition, here, Mr. Hall clears that bar

with respect to both questions presented.

A. The Panel Manifestly Erred In Concluding That Mr. Hall Could Not Pursue Habeas Relief Via 28 U.S.C. § 2241,

Thereby Foreclosing Any Avenue For

Him to Litigate Race Discrimination

16

Claims The District Court Characterized As “Extremely Serious.”

As this Court has recognized, the “Great Writ”

exists “to provide an effective and speedy instrument

by which judicial inquiry may be had into the legality of the detention of a person.” Carafas v. LaVallee,

391 U.S. 234, 238 (1968). The panel’s decision below

guts this historic safety valve, foreclosing access to

any possibility of habeas relief for Mr. Hall despite

the fact that he has raised compelling evidence of

race discrimination at his trial by a prosecutor

adjudicated to have committed Batson violations on

at least two occasions, including by this Court, and

despite the fact that this evidence was not reasonably available when Mr. Hall litigated his § 2255

petition. Unless this Court intervenes to correct the

Court of Appeals’ error and hold that Mr. Hall may

proceed pursuant to the “Savings Clause” of 28

U.S.C. § 2255(e), he will be executed without any

court ever hearing claims that the district court

characterized as “extremely serious.” Pet. App. 25a.

1. The Courts Below Erred by Finding That §

2255 Was Not Structurally Inadequate or Ineffective.

Section 2255(e), often referred to as the “savings

clause” or “safety valve,” permits a prisoner to petition the federal courts for a writ of habeas corpus

under 28 U.S.C. § 2241, but only if “the remedy by

motion [under § 2255] is inadequate or ineffective to

test the legality of [the] detention.’” Roundtree v.

Krueger, 910 F.3d 312, 313 (7th Cir. 2018) (quoting §

2255(e)).

17

That the relief sought under § 2241 is based on

grounds that “could not have [been] invoked . . . by

means of a second or successive § 2255 motion” and

seeks to remedy “an error [that] was indeed a miscarriage of justice” are key to the Seventh Circuit’s

interpretation of the savings clause. Brown v. Rios,

696 F.3d 638, 640 (7th Cir. 2012) (citation omitted).

While “[t]he mere fact that [a] petition would be

barred as a successive petition under § 2255 . . . is

not enough to bring the petition under § 2255's

savings clause,” Garza v. Lappin, 253 F.3d 918, 921

(7th Cir. 2001), a petitioner is able to access the

savings clause by showing the presence of “something more.” Webster v. Daniels, 784 F.3d 1123, 1136

(7th Cir. 2015) (en banc).

The en banc Seventh Circuit in Webster read “section 2255(e) as encompassing challenges to both

convictions and sentences that as a structural matter

cannot be entertained by use of the 2255 motion.”

784 F.3d at 1139. It further recognized that, in

exceptional circumstances, constitutional claims can

be brought under § 2241. And it granted relief,

finding that a failure to do so would “condon[e] an

execution that violates the [constitution],” and that

“there is no reason to assume that our procedural

system is powerless to act in such a case.” Id. at

1139–40. So too here.

While it may be true that a case presenting the

exact facts of Webster would be “rare,” 784 F.3d at

1141, the Seventh Circuit has not required strict

adherence to a “rigid categor[y],” Purkey v. United

States, 964 F.3d 603, 614 (7th Cir. 2020). Mr. Hall’s

case fits into this narrow, rare category. The evi-

18

dence that he seeks to present is, like Mr. Webster’s,

exceptionally compelling and grounded in the vindication of his most fundamental constitutional rights.

Allowing Petitioner to challenge his execution, based

on a sentence handed down by an all-White jury

fabricated on the basis of racial prejudice, is within

the “core purpose of habeas corpus.” Webster, 784

F.3d at 1139. The evidence that he seeks to present

is of the type by which “the very integrity of the

courts is jeopardized.” Miller-El v. Dretke, 545 U.S.

231, 238 (2005); see also See also Br. of Amicus

Curiae NAACP Legal Def. & Educ. Fund, Inc. In

Support of Pet’r-Appellant at 4-5, Hall v. Watson, No.

2:20-cv-00599 (S.D. Ind. Nov. 18, 2020); see also id.

at 15 (urging the Court to hold that “the § 2241

safety valve is available when, as here, a petitioner

facing execution by the United States has presented

compelling evidence that his sentence of death is

tainted by racism”).

2. Precluding Mr. Hall From Litigating His

Claims Would Result In A Fundamental Miscarriage of Justice.

Allowing the panel’s decision to stand would “result

in a ‘fundamental miscarriage of justice.’” Coleman v.

Thompson, 501 U.S. 722, 749-50 (1991) (internal

quotation omitted). Racial bias in a criminal trial is

so antithetical to constitutional values that this

Court has gone to great lengths to repeatedly condemn it. See, e.g., Peña-Rodriguez v. Colorado, 137 S.

Ct. 855, 868 (2017) (“The unmistakable principle

underlying these precedents is that discrimination

on the basis of race, ‘odious in all aspects, is especial-

19

ly pernicious in the administration of justice.’”)

(quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).

Indeed, “[s]ome toxins can be deadly in small doses.” Buck v. Davis, 137 S. Ct. 759, 777 (2017). And

here, the toxins were more than small. The allWhite jury that convicted Mr. Hall and sentenced

him to death was selected by a prosecutor with the

remarkable track record of having twice been adjudicated, by two different courts—including this one—to

have violated Batson, in decisions that repeatedly

identified him by name and expressly found that the

justifications he proffered for the strikes at issue

were false and pretextual. See Miller-El, 545 U.S. at

248-50; Reed, 555 F.3d at 371, 376, 382.

Because the execution of a death sentence imposed

on the basis of racial discrimination works a fundamental “miscarriage of justice,” see Wainwright v.

Sykes, 433 U.S. 72, 91 (1977), a habeas petitioner

may prevail if he puts forth evidence tending to show

that his case satisfies the “miscarriage-of-justice

exception.” See House v. Bell, 547 U.S. 518, 536

(2006) (quoting Schlup v. Delo, 513 U.S. 298, 324

(1995)). The racial animus that infected Mr. Hall’s

capital trial is a “fundamental miscarriage of justice”

that can be corrected on habeas review despite any

claimed procedural bar. Coleman, 501 U.S. at 750.

See also Br. of Amicus Curiae NAACP Legal Def. &

Educ. Fund, Inc. In Support of Pet’r-Appellant at 2,

Hall v. Watson, No. 2:20-cv-00599 (S.D. Ind. Nov. 18,

2020) (“It would be a fundamental miscarriage of

justice for the United States to carry out an execution without providing courts an opportunity to

consider and resolve the merits of Mr. Hall’s sub-

20

stantial claims that his death sentence is unlawfully

tainted by racial discrimination.”); see also id. at 1114 (discussing that it would be a fundamental miscarriage of justice for the United States to

carry out an execution based on a death sentence

influenced by [racial] discrimination”).

B. The Lower Courts Committed Manifest Error in Failing to Consider the

New Evidence of Batson Violations

Tainting Petitioner’s Death Sentence.

The circuit court and district court below erred in

denying consideration of the evidence of Batson

violations. Though the district court conceded that

the allegations were “extremely serious,” the court

denied Petitioner’s motion to consider such claims on

the grounds that they were delayed. Pet. App. 25a.

The evidence of Batson violations was validly before

the courts below pursuant to § 2241, as Petitioner

sought to raise his Batson claim on the basis of newly

discovered evidence of a grave constitutional violation, which justifies access to a petition under § 2241

through the savings clause in § 2255(e).

Racial discrimination permeates government decisions made in this case. The government chose to

prosecute Mr. Hall in the Northern District of Texas,

Fort Worth Division, a decision that seated the case

in a jurisdiction with only a 10.41% Black population

in 1990, rather than the 38.5% Black population in

the Pine Bluff Division of the Eastern District of

Arkansas at that time. Petition for Writ of Habeas

Corpus at 23, No. 2:20-cv-00599, Hall v. Watson,

(S.D. Ind. Nov. 12, 2020), ECF No. 1 (“Petition”). As

a result, of the 100 prospective jurors questioned

21

during voir dire, only seven were Black. Id. After

challenges for cause, when only six Black prospective

jurors remained, id. at 23 n.6, the government struck

four of the five qualified Black venire members in the

group from which the 12-member jury would be

selected. The fifth Black juror was struck by the

defense due to her strong pro-death penalty views,

and the sixth was selected as the third alternate. Id.

at 23. As a result, Mr. Hall, who is Black, was

convicted and sentenced to death by an all-White

jury.

One of the two prosecutors who conducted voir dire,

Paul Macaluso, began his career in the Dallas County District Attorney’s Office, which this Court found,

“for decades[,] . . . had followed a specific policy of

systemically excluding blacks from juries.” Miller-El

v. Dretke, 545 U.S. 231 (2005) (“Miller-El II”). In

proceedings brought under 28 U.S.C. § 2254, this

Court vacated Miller-El’s conviction and death

sentence, finding that Macaluso had struck Black

jurors on the basis of their race, in violation of Batson v. Kentucky,2 and then lied about why he had

struck them. Id. Several years later, the Fifth

Circuit Court of Appeals found in a separate capital

habeas case that Macaluso had done the same. Reed

v. Quarterman, 555 F.3d 364 (5th Cir. 2009). Both

decisions mentioned Macaluso by name numerous

times.

Mr. Hall’s lawyers raised a Batson objection to the

prosecution’s strikes, and the district court asked the

2 476 U.S. 79 (1986).

22

government to explain them. Considering the government’s proffered reasons, in light of the voir dire

transcript and jury questionnaires demonstrates that

Macaluso brought his bias with him when he came to

work at the United States Attorney’s Office prosecuting Mr. Hall. As in Miller-El II and Reed, the proffered race neutral reasons are not borne out by the

record, as they contain several misstatements, and,

importantly, a comparison of non-Black jurors the

government accepted and reasons the government

claimed was the basis for their strikes establishes

that the proffered reasons, though race neutral, were

in fact pretexts for race discrimination. These included AUSA Richard Roper’s claim that the government had attempted to remove all four Black

jurors they struck for cause when it only in fact

challenged two of them.

With respect to the two jurors not previously challenged, a side-by-side comparison of the government’s proffered bases for its strikes provides useful

context:

Amy Evans. Amy Evans wrote in her jury questionnaire that she was in favor of the death penalty

“depend[ing] on the nature of the crime,” that it was

appropriate for “brutal senseless murders,” and that

it served “as a means of deterrent from committing

the crime.” Juror Questionnaire of Amy Evans at

Q,46, Q.48, Q.52a, No. 2:20-cv-00599, Hall v. Watson,

(S.D. Ind. Nov. 12, 2020), ECF No. 1-14 (“Evans

Questionnaire”). She testified that the death penalty

was “appropriate” in instances “where a crime was

committed intentionally without . . . any regard[] for

life.” Vol. 10, Tr. of Trial at 92:8-11 (Voir Dire Exam-

23

ination of Amy Evans), No. 2:20-cv-00599, Hall v.

Watson, (S.D. Ind. Nov. 12, 2020), ECF No. 1-13

(“Examination”). The government nonetheless used

a peremptory strike on her, claiming Ms. Evans “was

very, very hesitant on her views on the death penalty.” Vol. 12, Tr. of Trial (Hearing on Peremptory

Strike List) at 11:4-6, No. 2:20-cv-00599, Hall v.

Watson, (S.D. Ind. Nov. 12, 2020), ECF No. 1-11

(“Batson Hr’g”). But the government seated other

non-Black jurors who gave similar testimony. For

example, White juror Mary Ann Herring, like Ms.

Evans, Ms. Herring provided both “yes” and “no”

answers in her questionnaire, Juror Questionnaire of

Mary Ann Herring at Q.52a, No. 2:20-cv-00599, Hall

v. Watson, (S.D. Ind. Nov. 12, 2020), ECF No. 1-23,

writing that the application of the death penalty

“would depend on the crime,” id.; and she testified

during voir dire that the death penalty should “depend on the circumstances” and “on the crime,” Vol.

7, Tr. of Trial at 118:24, 119:2–3 (Voir Dire Examination of Mary Ann Herring), No. 2:20-cv-00599, Hall v.

Watson, (S.D. Ind. Nov. 12, 2020), ECF No. 1-20.

There is no appreciable difference between the views

espoused by Ms. Evans and Ms. Herring, yet one was

struck while the other one sat on the jury.

The government also stated that Ms. Evans “had

very long pauses in her answers and was very hesitant in what she said,” Batson Hr’g at 11:8-9, which

the record does not support. And the prosecutor

claimed that he was “concerned” that Ms. Evans had

two brothers-in-law in prison, even though he asked

her no questions about this topic, id. at 11:1-3, and

seated multiple non-Black jurors with family mem-

24

bers either currently in or released from prison. See

Petition at 33.

Billie Lee. Potential juror Billie Lee stated in her

questionnaire that she favored the death penalty for

“extremely brutal” crimes and it should be available

for “child molesters who kill their victims.” Juror

Questionnaire of Bille Lee at Q.45, Q.48, No. 2:20-cv00599, Hall v. Watson, (S.D. Ind. Nov. 12, 2020),

ECF No. 1-29. She later testified that the death

penalty was warranted for “[a]nything that involves

children, murder of children, [and] cruelty to children.” Examination at 125:16-19. (Mr. Hall was

tried for the killing of a minor). When asked if she

could “give honest and fair consideration” of the

death penalty, she responded that she could, “depending on evidence, the cruelty of the act, all of that

would have to be considered.” Id. at 127:19-21.

The government claimed it struck Ms. Lee because

she had stated in her juror questionnaire that she

did not believe in the death penalty but could assess

it. Yet again, a side-by-side comparison of jurors the

government accepted for service belies this explanation; indeed, the prosecution seated multiple White

jurors who expressed misgivings about capital punishment.

The government also proffered as a reason to exclude Ms. Lee that she was “on a prior jury trial for

robbery and found the defendant not guilty . . . .”

Batson Hr’g at 13:18-29. Not only is this false, but

the government actually accepted a White juror who

served on a prior jury and acquitted a defendant on a

charge of murder. See Juror Questionnaire of Dana

Crittendon at Q.87, No. 2:20-cv-00599, Hall v. Wat-

25

son, (S.D. Ind. Nov. 12, 2020), ECF No. 1-32. Yet,

this fact went unexplored by the prosecution, whose

only question about her prior jury service was to

clarify that she was already familiar with the voir

dire and trial process. Vol. 1, Tr. of Trial at 91:9–14,

98:2–7 11 (Voir Dire Examination of Dana Crittendon), No. 2:20-cv-00599, Hall v. Watson, (S.D. Ind.

Nov. 12, 2020), ECF No. 1-33. Upon noticing the

mistake as to Ms. Lee’s jury service, the prosecutor

changed his story, claiming that Ms. Lee was struck

because she “had a brother-in-law who was a criminal defense attorney, which caused [ ] some concern.”

Batson Hr’g at 14:5-9. But the prosecution asked Ms.

Lee no questions about this topic, which belies a

claim that it actually caused the government any

concerns. See Miller-El II, 545 U.S. at 246 (“[F]ailure

to engage in any meaningful voir dire examination

on a subject the [government] alleges it is concerned

about is evidence suggesting that the explanation is

a sham and a pretext for discrimination.” (internal

quotation marks omitted)). And, once again, the

government seated a White juror whose brother-inlaw was a public defender. Petition at 37.

While it is true that Mr. Hall’s trial counsel raised

a Batson challenge at trial, and that the trial record

contains evidence supporting a Batson claim, this

traditionally has not been enough, as courts have

been reluctant to conclude that a prosecutor intentionally discriminated on the basis of race without

something more than a cold trial record. In Foster v.

Chatman, for example, this “something more” was a

set of prosecution notes that came to light many

years after Foster’s trial showing that the prosecu-

26

tion had flagged all of the Black jurors on their strike

sheets, written “No Black Church,” and made a

recommendation for who to pick if they “had to pick a

black juror,” 78 U.S. ___ , 136 S. Ct. 1737 (2016). In

this Court’s most recent Batson decision, Flowers v.

Mississippi, the “something more” was evidence that

across its history of six trials prosecuting Flowers,

prosecutor Doug Evans struck 41 of 42 prospective

Black jurors. 588 U.S. __, 139 S. Ct. 2228 (2019).

And in Miller-El, the “something more” was new

evidence that the prosecution office at issue had

adopted a formal policy to exclude racial minorities

from jury service and that the specific prosecutors

who tried Miller-El had been trained to strike Black

jurors via the infamous “Sparling Manual.” MillerEl v. Dretke, 545 U.S. 231, 264 (2005)

Here, the Court need not search for “something

more” because one of the very same prosecutors that

the Supreme Court (and later the Fifth Circuit, in a

different case) concluded had violated Batson on the

basis of the office policy and Sparling Manual in

Miller-El helped pick the jury that convicted and

sentenced Mr. Hall. And just as in Miller-El, this

evidence bears directly on the Court’s inquiry into

the genuineness of the prosecution’s stated reasons

for its strikes of 80% of the qualified Black venire

members at Mr. Hall’s trial. Batson, 476 U.S. at 9697 (“all relevant circumstances” must be considered

in determining whether a violation has occurred). As

the Supreme Court noted in Miller-El II, “[i]f anything more is needed for an undeniable explanation

of what was going on, history supplies it.” 545 U.S. at

266. That is doubly so given that the “history” here

27

is the very same piece of history on which this Court

relied in Miller-El to find that Paul Macaluso violated the Equal Protection Clause in that case. See also

Reed v. Quarterman, 555 F.3d 364, 371 n.3 (5th Cir.

2009) (“One of the same lawyers that conducted the

voir dire in Miller–El’s case, Paul Macaluso, also

questioned prospective jurors for Reed’s trial”); id.

(given “the historical evidence of racial bias among

the[] prosecutors,” including Macaluso, “we view this

exact same evidence as persuasive here.”). And it

dispatches any notion that the jury selection process

at Mr. Hall’s trial was race neutral, as the Constitution requires.

The courts below erred by failing to consider Mr.

Hall’s Batson claims.

III. MR. HALL WILL SUFFER IRREPARABLE

HARM ABSENT A STAY.

There is a clear “likelihood of irreparable harm if

the judgment is not stayed.” Philip Morris USA Inc.,

561 U.S. at 1302. That is true for at least two reasons: Absent a stay, (i) Mr. Hall will be executed

amid arbitrary denials of his constitutional rights;

and (2) this Court will effectively be deprived of its

jurisdiction to consider the petition for a writ of

certiorari.

First, the harm of being executed is inarguably

“certain and great, actual and not theoretical, and so

imminent that there is a clear and present need for

equitable relief to prevent [it].” League of Women

Voters of the U.S. v. Newby, 838 F.3d 1, 7-8 (D.C. Cir.

2016) (internal quotation marks omitted); see also

Wainwright v. Booker, 473 U.S. 935, 935 n.1. (1985)

28

(Powell, J., concurring) (In capital cases, irreparable

harm is “necessarily present.”). If this Court does

not stay Mr. Hall’s execution, Mr. Hall will be executed without the opportunity to fully litigate his

meritorious constitutional claims. That is an “irremediable” harm. Ford v. Wainwright, 477 U.S. 399,

411 (1986).

Second, failure to grant a stay risks “foreclos[ing] * * * certiorari review by this Court,” which

itself constitutes “irreparable harm.” Garrison v.

Hudson, 468 U.S. 1301, 1302 (1984) (Burger, C.J., in

chambers); accord, e.g., John Doe Agency, 488 U.S. at

1309. “Perhaps the most compelling justification for

a Circuit Justice to upset an interim decision by a

court of appeals [is] to protect this Court’s power to

entertain a petition for certiorari before or after the

final judgment of the Court of Appeals.” John Doe

Agency, 488 U.S. at 1309 (alteration in original)

(quoting New York v. Kleppe, 429 U.S. 1307, 1310

(1976) (Marshall, J., in chambers)). Allowing the

government to execute Mr. Hall while his petition is

pending risks “effectively depriv[ing] this Court of

jurisdiction to consider the petition for writ of certiorari.” Garrison, 468 U.S. at 1302. Because “ ‘the

normal course of appellate review might otherwise

cause the case to become moot,’ issuance of a stay is

warranted.” Id. at 1302 (quoting In re Bart, 82 S. Ct.

675, 676 (1962) (Warren, C.J., in chambers)); see also

Chafin v. Chafin, 568 U.S. 165, 178 (2013) (suggesting that the threat of mootness warrants “stays as a

matter of course”).

29

IV. THE BALANCE OF EQUITIES AND

RELATIVE HARMS WEIGH STRONGLY IN

FAVOR OF GRANTING A STAY.

In addition to the stay factors identified above, “ ‘in

a close case it may be appropriate to balance the

equities,’ to assess the relative harms to the parties,

‘as well as the interests of the public at large.’ ”

Indiana State Police Pension Trust, 556 U.S. at 960

(quoting Conkright, 556 U.S. at 1402). Because the

other factors plainly point in favor of granting the

requested stay, this Court need not consider the

balance of equities here. But, if it does, this additional factor reinforces that result.

First, “[r]efusing a stay may visit an irreversible

harm on [Mr. Hall], but granting it will * * * do no

permanent injury to respondents.” Philip Morris

USA Inc., 561 U.S. at 1305. While the government

has an interest in the finality of Mr. Hall’s case, the

delay that will come from staying his execution to

allow him to litigate his “extremely serious” claims,

Pet. App. 25a, will not cause substantial harm to

Defendants. That is particularly true given that Mr.

Hall was protected by a stay of execution for 13

years, Order, Roane v. Gonzales, No. 1:05-cv-02337TSC (D.D.C. June 11, 2007), ECF No. 68; a reprieve

to which the government had consented and which

was not lifted until September 20, 2020—ten days

before the government decided to suddenly notice

Mr. Hall’s execution in the midst of a global pandemic, In the Matter of the Fed. Bureau of Prisons’ Execution Protocol Cases, No. 1:19-mc-00145-TSC (D.D.C.

Sept. 20, 2020), ECF Nos. 265 & 266. In light of this

history, “[a] brief stay to permit the orderly conclu-

30

sion of the proceedings in this court will not substantially harm the government . . . .” Purkey, 964 F.3d at

618.

Second, the public has an interest in ensuring that

Mr. Hall’s constitutional rights are fully litigated.

“[I]t is always in the public interest to prevent

violation of a party’s constitutional rights.” In re

Ohio Execution Protocol, 860 F.3d 881, 901 (6th Cir.

2017) (Moore, J., dissenting); see also Gannett Co. v.

DePasquale,

443

U.S.

368,

383

(1979)

(acknowledging public interest in protection of

constitutional rights); Cooey v. Taft, 430 F. Supp. 2d

702, 708 (S.D. Ohio 2006) (“The public interest has

never been and could never be served by rushing to

judgment at the expense of a condemned inmate’s

constitutional rights.”); Harris v. Johnson, 323 F.

Supp. 2d 797, 810 (S.D. Tex. 2004) (“Confidence in

the humane application of the governing laws . . .

must be in the public's interest.”). Indeed,“[a]pplying

the law in a way that violates the Constitution is

never in the public’s interest.” Minney v. U.S. Office

of Pers. Mgmt., 130 F. Supp. 3d 225, 236 (D.D.C.

2015).

On balance, a stay is therefore warranted. Failure

to grant one “may 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,” and

a stay would serve both the public interest and

judicial economy. Id. “In light of these considerations,” this Court should “grant the application.” Id.

31

CONCLUSION

For the foregoing reasons, Mr. Hall respectfully

requests the Court should stay his execution pending

disposition of his petition for certiorari.

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

104 MARIETTA STREET

NW, SUITE 260

ATLANTA, GA 30303

(404) 222-9202

NOVEMBER 19, 2020

ROBERT C. OWEN

LAW OFFICE OF ROBERT C.

OWEN, LLC

53 WEST JACKSON BLVD.,

SUITE 1056

CHICAGO, IL 60604