Reply Brief — William P. Barr, Attorney General, et al., Applicants v. Wesley Ira Purkey
Supreme Court briefJul 15, 2020
Ask Donna
What actually matters in this document.
Text
No. 20A9
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL., APPLICANTS
v.
WESLEY IRA PURKEY
(CAPITAL CASE)
_______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY OR VACATUR OF THE
INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
________________________________________________________________
________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
_______________
No. 20A9
WILLIAM P. BARR, ATTORNEY GENERAL, ET AL., APPLICANTS
v.
WESLEY IRA PURKEY
(CAPITAL CASE)
_______________
REPLY IN SUPPORT OF APPLICATION FOR A STAY OR VACATUR OF THE
INJUNCTION ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
_______________
All agree that respondent could have brought his current
claims as part of the application for habeas corpus relief he filed
in the Southern District of Indiana soon after his execution date
was first scheduled last year. Respondent made a different choice.
After seeing the district court in the Southern District of Indiana
deny his application for habeas relief on other claims, and seeing
the district court in the District of Columbia grant a stay of his
execution date in unrelated litigation concerning a challenge to
the federal execution protocols, respondent chose to instead file
this case in the District of Columbia, asserting a never-beforerecognized cause of action that he asked the district court to
infer directly from the Constitution itself.
2
At
5:00
a.m.
this
morning,
respondent for that choice.
in
showing
previously
that
the
uninvoked
the
court
rewarded
It held that he is likely to succeed
Constitution
cause
district
of
contains
action
an
unwritten
and
that
supplants
the
application for a writ of habeas corpus in 28 U.S.C. 2241 for
prisoners asserting claims under Ford v. Wainwright, 477 U.S. 399
(1986), allowing them to bring suit in a forum of their choosing
far from the district of their confinement.
And the court went
on, in just a few short sentences, to conclude that respondent is
likely
to
prevail
on
that
cause
of
action
--
even
though
respondent’s own expert, in a declaration attached to his own
complaint, acknowledged that respondent “accept[s] that he is
going to be executed for the murder of Jennifer Long.”
D. Ct.
Doc. 1-1, at 12 (Nov. 26, 2019).
As the government explained in its application, this Court
should
not
allow
that
decision
to
stand.
Respondent
never
addresses this Court’s admonitions that “[w]here Congress has
created a remedial scheme for the enforcement of a particular
federal right,” it would be inappropriate “to supplement that
scheme with one created by the judiciary.”
Seminole Tribe of
Florida v. Florida, 517 U.S. 44, 74 (1996).
Because respondent
does not dispute that he could have brought his Ford claim in
habeas, that principle is dispositive here.
And even if courts
were free to devise unwritten constitutional causes of action for
3
the pursuit of non-“core” habeas claims, as the district court’s
decision implicitly assumed, respondent has not shown that the
claims here would qualify.
Respondent argues under Ford that he
is incompetent to be executed and thus the government is barred
from executing him under current law; his claim is therefore
properly treated as a postconviction habeas claim.
Even if respondent had brought his claim in the appropriate
manner
and
forum,
though,
likelihood of success.
it
would
have
had
no
substantial
Respondent’s curated submissions, like the
district court’s cursory “analysis” of them, do not establish a
threshold showing that respondent is incompetent to be executed
under Ford, supra.
That is because, for all of their focus on
generalized issues involving respondent’s allegedly deteriorating
mental state, those submissions cannot change the specific fact
relevant under Ford:
respondent understands that he has been
sentenced to die because he kidnapped, raped, and murdered a 16year-old girl.
Finally, respondent seeks to distract from the numerous flaws
in his own case by attacking the government’s conduct in this
litigation. Those attacks are unfounded. Because respondent chose
not to use the scheme for relief that Congress provided in Section
2241, he was not entitled to any of the discovery that he complains
at length about not receiving.
Nevertheless, the government did
voluntarily accommodate many of respondent’s requests for evidence
4
relevant to his current mental condition.
Respondent now tries to
turn the government’s most recent voluntary accommodation into an
affirmative reason to further delay the execution, suggesting that
the government concealed evidence favorable to his claims, while
failing to include that supposed evidence in his lengthy appendix.
His suggestion that the government concealed evidence favorable to
him is wrong, as the reports themselves -- which respondent’s
appendix does not include, but which the government will provide
to the Court upon request -- demonstrate.
For
all
of
those
reasons,
and
others
addressed
in
the
government’s application, this Court should allow the execution to
proceed as scheduled.
A.
Respondent’s Claims Are Unlikely To Succeed Because He Chose
To Circumvent The Habeas System That Congress Has Created To
Hear Claims Like This One
As the government’s application explained (Stay Appl. 14-15),
where Congress has provided a “remedial scheme for the enforcement
of a particular right,” it would be inappropriate for courts to
“supplement that scheme” by inferring new, unwritten causes of
action.
Seminole Tribe of Fl. v. Florida, 517 U.S. 44, 74 (1996);
see Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (“‘Raising up
causes of action where a statute has not created them may be a
proper
function
tribunals.’”)
for
common-law
(citation
omitted).
courts,
Here,
but
not
for
respondent
federal
does
not
dispute that Congress has provided a remedial scheme by which to
5
pursue his Ford claim -- an application for a writ of habeas corpus
filed
under
28
U.S.C.
2241
in
the
district
of
confinement.
Accordingly, against the backdrop of a half-century’s worth of
this Court’s cases refusing to infer unwritten causes of action in
such circumstances, respondent has no substantial likelihood of
showing that a new cause of action should be inferred directly
from the Constitution to allow him to bring his claims in his
preferred forum rather than the district of his confinement.
Respondent has no answer to this dispositive point.
Ignoring the difficulty of asking a Court to create a new
cause of action, respondent focuses instead on whether Congress
has foreclosed a new cause of action.
But respondent simply
repeats the district court’s flawed reasoning that because an
incompetent prisoner’s competency could be restored at some point
in the future, a Ford claim does not necessarily bar his execution
for all time and thus does not qualify as a “core habeas” claim.
Opp.
26-29.
But
he
does
not
meaningfully
engage
with
the
government’s showing that Ford claims are manifestly unlike the
single-manner-of-execution claims to which he analogizes them.
See Stay Appl. 15-16.
Nor does he address the implications of his
argument -- which would suggest that any federal prisoner’s Ford
claim may be brought in any court in the Nation -- or this Court’s
own repeated consideration of Ford claims by state prisoners in
the context of habeas petitions.
See id. at 16.
B.
6
Respondent’s Claims Are Unlikely To Succeed Because He Has
Not Made A Threshold Showing That He Is Incompetent To Be
Executed
In any event, respondent’s claims are meritless.
Respondent
has not made a substantial threshold showing of incompetency, and
thus he would be unlikely to succeed on either the merits of his
Ford claim or his derivative due process claim even had he brought
them in the correct jurisdiction.
1.
Most of respondent’s merits argument rests on general
assertions about purported mental infirmities.
See Opp. 9-14.
But such general assertions have no bearing on whether a prisoner
is incompetent to be executed.
Ford is concerned with one very
specific type of mental infirmity:
only if a prisoner is unable
to “reach a rational understanding of the reason for his execution”
does the prisoner lack competency to be executed.
Madison v.
Alabama, 139 S. Ct. 718, 723 (2019) (brackets and quotation marks
omitted).
And a prisoner is entitled to a hearing on whether he
is competent to be executed only if he makes “a substantial
threshold showing” of incompetency.
Panetti v. Quarterman, 551
U.S. 930, 949 (2007).
Respondent’s brief in this Court does not change the fact
that
the
only
incompetency
direct
claim
is
support
the
respondent
report
of
Dr.
has
offered
Bhushan
respondent
is
incompetent
to
his
Agharkar,
psychiatrist who interviewed respondent in November 2019.
Doc. 1-1, at 3 (Nov. 26, 2019).
for
a
D. Ct.
Although Dr. Agharkar opined that
be
executed,
his
report
is
7
fundamentally flawed on its face because it conflates respondent’s
understanding of the reason for his execution (which could prevent
him from being executed under Ford), with his understanding of the
reason for scheduling his execution date (which has no bearing on
his competency under Ford).
24-26.
See id. at 2-14; see also Stay Appl.
Respondent’s own pro se filings in the Southern District
of Indiana show that it is the “selection of his execution date”
that he claims was retaliation for his “jailhouse lawyering,” and
that any delusions he has are not about why he has been condemned
to die but rather why his execution will be carried out before
“other inmates who ha[d] fully exhausted their appellate remedies
prior to me.”
19-cv-517 D. Ct. Doc. 1, at 1, 3 (S.D. Ind. Oct.
28). Indeed, Dr. Agharkar noted that respondent “stated that he
knew what an execution was and said that he accepted that he was
going to be executed for the murder of Jennifer Long,” D. Ct. Doc.
1-1,
at
12
respondent
(emphasis
“rationally
added),
which
understand
the
plainly
indicates
that
reasons
for
death
his
sentence,” Madison, 139 S. Ct. at 728.
While it is true that at one point Dr. Agharkar stated that
respondent “has a fixed belief that he is going to be executed for
his legal work,” D. Ct. Doc. 1-1, at 12, it is clear from the
entirety of their discussion that respondent’s concern is “that he
was
given
a
date
discrimination,”
id.
for
execution
unfairly
at
11
that
--
not
his
and
for
legal
reverse
work
and
8
discrimination against it were the reason for his death sentence
in the first place.
See also Stay Appl. 24-26.
Respondent’s pro
se filings confirm this.
The facts of Panetti v. Quarterman, supra, where it was
uncontested that the prisoner had made a substantial showing of
incompetency, do not help respondent.
The prisoner in Panetti
believed that his execution was “part of spiritual warfare . . .
between the demons and the forces of the darkness and God and the
angels and the forces of light” and an expert opined that he
thought “that the stated reason [for his execution] is a sham and
the
State
in
truth
wants
to
execute
him
to
stop
him
from
preaching.” Panetti, 551 U.S. at 954-955 (internal quotation marks
omitted).
By contrast, respondent has accepted that he is going
to be executed for Long’s murder; his purported confusion as to
why he has been selected for an execution date differs from the
prisoner’s inability to understand the reason for his execution in
Panetti.
None of respondent’s other allegations indicates that he
lacks competency under Ford, and indeed many of the documents he
relies on strongly support the conclusion that he understands the
reasons for his execution.
See Stay Appl. 27-29 (explaining in
detail why respondent’s purported mental infirmities and diseases
do
not
prevent
execution).
him
And
as
from
understanding
the
government
the
reasons
explained
in
for
his
its
stay
9
application,
id.
at
15-16,
the
district
court’s
conclusory
findings in a single paragraph fall far short of the required
showing under Ford.
2.
Without the required threshold showing, Ford and Panetti
v. Quarterman, supra, make clear that no process -- including
information-sharing or discovery -- is required.
See Panetti, 551
U.S. at 950 (“Petitioner was entitled to these protections once he
had made a substantial threshold showing of insanity.”) (emphasis
added;
internal
quotation
marks
omitted).
Respondent’s
due
process claim thus is certain to fail along with his Ford claim.
Respondent argues that he could somehow have succeeded if the
government had not, in his view, sought “a litigation advantage by
depriving counsel of information about their client.”
Opp. 33.
He asserts that there has been “significant interference [by the
government] with his attempts to gather critical evidence” of his
medical condition and offers a number of factual accusations
(undeveloped
conduct.
in
the
record)
about
the
government’s
alleged
Opp. 32.
For numerous reasons, the Court should give these allegations
no weight.
As an initial matter, although respondent pressed many
of these allegations below, the district court’s order did not
credit them in balancing the relative equities.
not either.
This Court should
The government disputes many of respondent’s factual
assertions and his suggestion that the government has not acted in
10
good faith.
Indeed, the government has been accommodating of
respondent’s requests, permitting testing at counsel’s request
despite
the
lack
of
any
formal
authorizing medical testing.
2020).
discovery
requests
or
orders
See D. Ct. Doc. 27, at 1-2 (June 29,
BOP officials have tried to accommodate counsel’s testing
requests and provided counsel with information to schedule inperson
visits.
Id.
at
8
n.1;
D.
Ct.
Doc.
27-1
(Siereveld
Decl.)(June 29, 2020).
3.
Finally, respondent asserts that “five minutes before
this filing, [respondent]’s counsel learned that the Government
appears to have had scientific confirmation in their possession of
significant structural abnormalities in [respondent]’s brain that
are consistent with cognitive impairment such as vascular dementia
or other conditions.”
Opp. 33.
The government assumes that
counsel is referring to the results of the recent testing and
disagrees with his characterization.
The government does not
believe that review of the district court’s preliminary injunction
would
appropriately
materials.
that
recent
include
review
of
contested
non-record
In any event, to the extent that respondent suggests
test
results
(which
he
does
not
include
in
his
appendix) support leaving the preliminary injunction in place,
that suggestion is unsound.
Respondent relies on a new expert report in his appendix
(Resp. App. 296a-299a) that purports to find significant new data
11
in the recent tests performed on respondent -- again, tests that
the
government
facilitated
obligation to do so.
despite
the
absence
of
any
legal
But that report again relies on general
assertions of mental condition and does not suggest evidence of
the particular type of incompetence that Ford requires.
It is
also highly selective in its reading of the test results, which
the government is willing to provide to the Court upon request,
but which specifically state that certain evidence that would be
indicative of Alzheimer’s disease and dementia was not found.
4.
In sum, having failed to make the threshold showing
necessary for discovery in the district court, respondent now tries
to make that showing in this Court, characterizing the government’s
voluntary accommodation of certain medical requests as evidence of
significant misconduct.
That characterization is inaccurate and
unfair, but the critical point is that respondent still cannot
make the required threshold showing.
For a Ford claim to proceed,
the claimant must make a threshold showing of a specific kind of
mental infirmity.
Here, respondent’s evidence not only fails to
make that showing -- it refutes it.
12
* * * * *
For the foregoing reasons and those stated in the government’s
application for a stay or vacatur, this Court should immediately
stay
or
summarily
vacate
the
district
court’s
preliminary
injunction.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
JULY 2020
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.