Response to application from respondent Jim Farris, Warden — Benjamin Robert Cole, Petitioner v. Jim Farris, Warden

N O . 22A317

C APITAL CASE

IN T H E

Supreme Court of the United States

BENJAMIN ROBERT COLE, SR.,

Petitioner,

v.

JIM FARRIS, WARDEN,

OKLAHOMA STATE PENITENTIARY,

Respondent.

____________________________________

To the Honorable Brett Kavanaugh,

Associate Justice of the Supreme Court of the United States

(Justice Gorsuch, Circuit Justice for the United States Court of Appeals

for the Tenth Circuit, is recused)

____________________________________

RESPONSE IN OPPOSITION TO

EMERGENCY APPLICATION FOR STAY OF EXECUTION PENDING

FILING AND DISPOSITION OF PETITION FOR WRIT OF CERTIORARI

____________________________________

John M. O’Connor

Attorney General of Oklahoma

Tessa L. Henry

Asst. Attorney General

Counsel of Record

Oklahoma Office of the Attorney General

313 NE Twenty-First St.

Oklahoma City, OK 73105

tessa.henry@oag.ok.gov

(405) 522-4394

____________________________________

Execution Scheduled for October 20th, 2022 at 10:00 a.m. CT

TABLE OF CONTENTS

Page

INTRODUCTION ........................................................................................................ 1

STATEMENT OF THE CASE .................................................................................... 2

ARGUMENT ................................................................................................................. 6

I.

II.

Cole cannot meet his burden to demonstrate that he is

entitled to a stay of execution ............................................................ 7

A.

Cole is unlikely to receive certiorari review, let

alone a reversal of the OCCA’s decision ............................... 7

B.

Cole cannot demonstrate the likelihood of

irreparable harm or that the balance of equities

weighs in his favor ................................................................... 15

C.

Conclusion ................................................................................. 16

The All Writs Act does not relieve Cole of his burden to

show he is entitled to a stay ............................................................. 16

CONCLUSION ........................................................................................................... 18

i

TABLE OF AUTHORITIES

FEDERAL CASES

Allen v. Workman,

No. 12-6253, 500 F. App’x 708 (10th Cir. Oct. 18, 2012) ................................... 13

Barnard v. Collins,

13 F.3d 871 (5th Cir. 1994) ................................................................................... 10

Bedford v. Bobby,

645 F.3d 372 (6th Cir. 2011) ................................................................................. 14

Bucklew v. Precythe,

139 S. Ct. 1112 (2019) ......................................................................................... 7, 16

Cole v. Roper,

783 F.3d 707 (8th Cir. 2015) ................................................................................. 10

Cole v. Trammell,

755 F.3d 1142 (10th Cir. 2014) ......................................................................... 2, 11

Cole v. Workman,

No. 08-CV-0328-CVE-PJC, 2011 WL 3862143 (N.D. Okla. Sept. 1, 2011) ........ 2

Cooey v. Strickland,

589 F.3d 210 (6th Cir. 2009) ................................................................................. 17

Crow v. Jones,

142 S. Ct. 417 (2021) ................................................................................................. 3

Dunn v. McNabb,

138 S. Ct. 369 (2017) ............................................................................................... 17

Dunn v. Price,

139 S. Ct. 1312 (2019) ............................................................................................... 7

Evans v. Alabama,

461 U.S. 1301 (1983) ................................................................................................. 6

Ford v. Wainwright,

477 U.S. 399 (1986) ................................................................... 8, 10, 12, 13, 14, 15,

Glossip v. Gross,

576 U.S. 863 (2015) ................................................................................................... 3

ii

Gomez v. U.S. Dist. Ct. for N. Dist. of California,

503 U.S. 653 (1992) ................................................................................................... 6

Green v. Warden, U.S. Penitentiary,

699 F.2d 364 (7th Cir. 1983) ................................................................................. 17

Halbert v. Michigan,

545 U.S. 605 (2005) ................................................................................................. 12

Hill v. McDonough,

547 U.S. 573 (2006) ......................................................................................... 6, 7, 16

Hollingsworth v. Perry,

558 U.S. 183 (2010) ................................................................................... 6, 7, 15, 16

Lambert v. Buss,

498 F.3d 446 (7th Cir. 2007) ................................................................................. 17

Lucas v. Townsend,

486 U.S. 1301 (1988) ................................................................................................. 6

Madison v. Alabama,

139 S. Ct. 718 (2019) ............................................................................................... 11

Murphy v. Collier,

139 S. Ct. 1475 (2019) ............................................................................................... 6

Nken v. Holder,

556 U.S. 418 (2009) ............................................................................................. 6, 17

Ochoa v. Trammell,

No. 12-6310, 504 F. App’x 705 (10th Cir. Dec. 3, 2012) .................................... 12

Panetti v. Quarterman,

551 U.S. 930 (2007) ...................................................... 4, 7, 8, 10, 11, 12, 13, 14, 15

Pavatt v. Carpenter,

928 F.3d 906 (10th Cir. 2019) ............................................................................... 12

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ....................................................................................... 15, 16

Rostker v. Goldberg,

448 U.S. 1306 (1980) ................................................................................................. 6

iii

The Monrosa v. Carbon Black Exp., Inc.,

359 U.S. 180 (1959) ................................................................................................. 11

Ward v. Hutchinson,

558 S.W.3d 856 (Ark. 2018) ................................................................................... 13

STATE CASES

Allen v. State,

265 P.3d 754 (Okla. Crim. App. 2011) ................................................................. 13

Cole v. State,

164 P.3d 1089 (Okla. Crim. App. 2007)............................................................. 1, 2

Cole v. Trammell,

358 P.3d 932 (Okla. Crim. App. 2015) ................................................... 3, 9, 10, 13

FEDERAL STATUTES

28 U.S.C. § 1651 ...................................................................................................... 7, 17

28 U.S.C. § 2101 ............................................................................................................ 5

STATE STATUTES

Okla. Stat. tit. 22, § 1005 (2021) ........................................................................ 3, 4, 7

Okla. Stat. tit. 22, § 1005.1 (eff. Nov. 1, 2022) ................................................. 11, 12

FEDERAL RULES

Sup. Ct. R. 10.............................................................................................................. 12

Sup. Ct. R. 23............................................................................................................ 5, 6

Sup. Ct. R. 20.............................................................................................................. 17

iv

1

INTRODUCTION

On December 20, 2002, just days before Christmas, Applicant Benjamin Cole

murdered his nine-month-old daughter, B.V.C., by violently folding her in half,

causing her spine to snap in half and her abdominal aorta to tear completely through.

Cole committed the fatal attack because B.V.C. woke from her nap and interrupted

his video gaming with her cries. Cole v. State, 164 P.3d 1089, 1092-93 (Okla. Crim.

App. 2007). A jury convicted Cole of first-degree child abuse murder and sentenced

him to death in 2004. Id. at 1092. After exhausting all state and federal appeals, Cole

is now scheduled for execution on October 20, 2022, nearly two decades after

murdering B.V.C.

Now, Cole seeks a stay of his execution pending the filing and disposition in

this Court of a petition for certiorari review of the Oklahoma Court of Criminal

Appeals’s (“OCCA”) (as of yet not issued) decision on his claim of incompetence to be

executed. Cole plans to seek review of whether Oklahoma’s procedures for

determining competency are constitutional. Appl. i. His focus on procedure is

unsurprising given that his substantive claim of incompetence is patently without

merit—a neutral, court-appointed psychologist recently interviewed Cole, reviewed

more than 1,000 pages of records, and concluded unequivocally that Cole is competent

to be executed. Without making a substantial showing of incompetence, Cole is not

entitled to further due process on his incompetence claim; thus, his case is an

inappropriate vehicle for the examination of Oklahoma’s competency procedures. In

any event, Cole received an evidentiary hearing in state district court, more process

2

than he was even entitled to, and he presents no compelling issue for this Court to

consider as to Oklahoma’s procedures. Cole’s application for a stay should be denied.

STATEMENT OF THE CASE

“Few capital cases have a more developed record on the issue of competency.”

Cole v. State, Case No. PCD-2005-23, slip op. at 3 (Okla. Crim. App. Jan. 24, 2008)

(unpublished). Indeed, Cole’s unsuccessful challenges to his competence have been a

common theme throughout the lifetime of this case. Cole’s challenges to his

competence have mainly revolved around his communication issues with counsel and

anyone affiliated with counsel, his disagreements with counsel, his refusal to assist

counsel, and his dedication to his religion. Counsel for Cole often cast Cole’s

communication issues with counsel, and anyone affiliated with counsel, as well as his

“extreme religiosity,” as signs of incompetence and greater mental health issues; but

the state and federal courts considering Cole’s incompetence claims have consistently

found that Cole’s actions “demonstrate[] an uncooperative, albeit bizarre, defendant

making deliberate choices.” Cole, Case No. PCD-2005-23, slip op. at 4; see also Cole,

164 P.3d at 1093-94, cert. denied, Cole v. Oklahoma, 553 U.S. 1055 (2008); Cole, Case

No. PCD-2005-23, slip op. at 3-5; Cole v. Workman, No. 08-CV-0328-CVE-PJC, 2011

WL 3862143, at *7-20 (N.D. Okla. Sept. 1, 2011); Cole v. Trammell, 755 F.3d 1142,

1148-54 (10th Cir. 2014), cert. denied, 574 U.S. 891 (2014). Thus, the courts have

consistently rejected Cole’s claims of incompetence.

Cole was initially scheduled to be executed in 2015. In state-court competency

proceedings at that time, both the state district court and OCCA rejected Cole’s

3

claims of incompetence to be executed and determined Cole failed to make the

required substantial threshold showing of incompetence. See Cole v. Trammell, 358

P.3d 932, 936-37 (Okla. Crim. App. 2015). Subsequently, however, at the request of

the State, Cole’s execution was indefinitely stayed due to ongoing litigation

concerning Oklahoma’s execution protocol (with which this Court is very familiar, see,

e.g., Glossip v. Gross, 576 U.S. 863 (2015); Crow v. Jones, 142 S. Ct. 417 (2021)).

In January 2022, in anticipation of the conclusion of the execution protocol

litigation (and the potential setting of an execution date), Cole reinitiated competency

proceedings in federal district court before proceeding to state court to exhaust his

claims of incompetence to be executed. Ultimately, the federal habeas court, based on

the agreement of the parties in anticipation of state court competency proceedings,

ordered Cole to be evaluated by a neutral mental health expert at the Oklahoma

Forensic Center (“OFC”). Pet. Appx. 233a-234a, 367a-370a. In July 2022, Dr. Scott

Orth, Director of Forensic Psychology at the OFC, evaluated Cole and found him to

be competent to be executed. Pet. Appx. 11a-22a.

Not satisfied with the results of the agreed-upon neutral evaluation, Cole’s

counsel repeatedly sent letters to the Warden of Cole’s prison, Warden Jim Farris,

requesting Warden Farris to find, based on the opinions of Drs. David George Hough

and Travis Snyder, that there was “good reason” under Okla. Stat. tit. 22, § 1005

(2021) to refer this matter for competency proceedings in the state district court. Pet.

Appx. 4a-8a, 23a-85a, 89a-104a. Pursuant to § 1005, if the Warden has “good reason

to believe” a capital defendant has become incompetent, then he must initiate jury

4

trial proceedings in state district court on the issue of competency. See Okla. Stat. tit.

22, § 1005 (2021). On August 2, 2022, however, Warden Farris informed Cole’s

counsel that after “carefully consider[ing] all information and material submitted by

Mr. Cole’s attorneys regarding his mental health and conditions of confinement,” as

well as the examination report of Dr. Orth, the Warden did not have good reason to

believe Cole is incompetent pursuant to § 1005. Pet. Appx. 9a-10a.

Cole then filed a mandamus action in state district court, requesting the court

to order Warden Farris to initiate competency proceedings pursuant to § 1005.

Following extensive briefing by the parties, and over the State’s objection, the state

district court determined it would hold an evidentiary hearing to determine whether

Cole met his prima facie burden of incompetence (i.e., whether Cole made a

substantial threshold showing that he did not have a rational understanding of his

execution or the reasons for it) (09/07/2022 Tr. 26-27). See also Panetti v. Quarterman,

551 U.S. 930, 949 (2007); Pet. Appx. 320a-323a. After a discussion about the scope of

the testimony to be presented at the hearing, Cole’s counsel privately conferred and

then announced to the court that they wished to call only two witnesses: Warden

Farris and Cole himself (09/07/2022, Court Minute). 1

At the September 30, 2022, evidentiary hearing, Cole’s counsel presented a

multitude of exhibits and called only one witness, Warden Farris. Pet. Appx. 161a,

167a-243a, 289a-297a. While Cole himself was present at the hearing—and the state

1 See also Oklahoma State Courts Network (“OSCN”), Docket and Case Information for In re

Benjamin R. Cole, District Court of Pittsburg County Case No. CV-2022-140,

https://www.oscn.net/dockets/GetCaseInformation.aspx?db=pittsburg&number=CV-202200140&cmid=328425 (last visited Oct. 15, 2022).

5

district court was therefore able to observe him—his attorneys did not call him to

testify as originally announced (09/07/2022, Court Minute). The State called no

witnesses and rested on the extensive report of Dr. Orth. Pet. Appx. 299a.

On October 4, 2022, the state district court denied mandamus relief, noting

that it had reviewed all relevant case law, all briefing, the “voluminous record,”

“observations of those who have interacted with” Cole, expert reports, the testimony

of Warden Farris, medical records, and psychiatric records. Pet. Appx. 320a-323a.

Ultimately, placing greater weight on the expert report of Dr. Orth (i.e., as will be

explained, the only expert that has recently spoken to and successfully evaluated Cole

about Cole’s understanding of his execution), the state district court determined that

Cole did not meet the required prima facie burden of incompetence and “is competent

to be executed as currently scheduled on October 20, 2022.” Pet. Appx. 320a-323a.

On October 10, 2022, Cole filed a petition for writ of mandamus and application

for stay of execution in the OCCA, contending both that he had made a substantial

threshold showing of incompetence entitling him to a jury trial and that § 1005 is

constitutionally infirm because it allows the Warden, as part of the executive branch,

to serve as gatekeeper of execution competency claims. Pet. Appx. 327a-370a. On

October 12, 2022, the State responded in opposition to Cole’s requests for mandamus

relief and a stay of execution. As of this writing, the OCCA has not yet ruled on Cole’s

mandamus petition or stay application. 2

2 Notably, seemingly inconsistent with federal statute and this Court’s Rules, Cole has sought

a stay of execution from this Court before giving the OCCA a reasonable opportunity to rule

on his requests for mandamus relief and a stay of execution. See 28 U.S.C. § 2101(f) (stay of

a final judgment in order to enable a petition for writ of certiorari); see also Sup. Ct. R. 23.2

6

ARGUMENT

This Court will not grant a stay pending the filing and disposition of a

certiorari petition unless the applicant establishes:

(1) a reasonable probability that four Justices will consider the issue

sufficiently meritorious to grant certiorari; (2) a fair prospect that a

majority of the Court will vote to reverse the judgment below; and (3) a

likelihood that irreparable harm will result from the denial of a stay. In

close cases the Circuit Justice or the Court will balance the equities and

weigh the relative harms to the applicant and to the respondent.

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); see also Lucas v.

Townsend, 486 U.S. 1301, 1304 (1988) (Kennedy, J., in chambers); Evans v. Alabama,

461 U.S. 1301, 1302 (1983) (Powell, J., in chambers); Rostker v. Goldberg, 448 U.S.

1306, 1308 (1980) (Brennan, J., in chambers).

“A stay is not a matter of right, even if irreparable injury might otherwise

result,” and is “instead an exercise of judicial discretion,” “dependent upon the

circumstances of the particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009)

(quotation marks omitted). “The party requesting a stay bears the burden of showing

that the circumstances justify an exercise of that discretion.” Id. at 433-34. Moreover,

in the execution context, the decision whether to grant a stay “must be sensitive to

the State’s strong interest in enforcing its criminal judgments.” Hill v. McDonough,

547 U.S. 573, 584 (2006); see also Murphy v. Collier, 139 S. Ct. 1475, 1480 (2019)

(Alito, J., dissenting); Gomez v. U.S. Dist. Ct. for N. Dist. of California, 503 U.S. 653,

654 (1992) (per curiam) (each state has a “strong interest in proceeding with its

(stay of enforcement of a final judgment), 23.3 (“Except in the most extraordinary

circumstances, an application for a stay will not be entertained unless the relief requested

was first sought in the appropriate court or courts below or from a judge or judges thereof.”).

7

judgment”). “Both the State and the victims of crime have an important interest in

the timely enforcement of a sentence.” Hill, 547 U.S. at 584. Last-minute execution

stays are especially disfavored. See Dunn v. Price, 139 S. Ct. 1312, 1312 (2019);

Bucklew v. Precythe, 139 S. Ct. 1112, 1133-34 (2019); Hill, 547 U.S. at 584.

Here, Cole cannot show a reasonable probability that certiorari review will be

granted, let alone a significant possibility of reversal. Moreover, Cole cannot

demonstrate the likelihood of irreparable harm or that the balance of equities weighs

in his favor. Finally, Cole’s argument based on the All Writs Act, 28 U.S.C. § 1651, is

without merit, as the All Writs Act does not excuse Cole’s burden to demonstrate he

is entitled to a stay. Cole’s requested stay must be therefore denied.

I.

Cole cannot meet his burden to demonstrate that he is entitled to a

stay of execution.

A.

Cole is unlikely to receive certiorari review, let alone a reversal

of the OCCA’s decision.

For a number of reasons, Cole has not shown a reasonable probability that four

members of this Court will be of the opinion that the issues are sufficiently

meritorious to warrant a grant of certiorari, let alone a significant possibility of

reversal of the OCCA’s decision. Hollingsworth, 558 U.S. at 190.

First, his case is an exceedingly poor vehicle for consideration of the issues

raised because, regardless of the constitutionality of Oklahoma’s procedures for

determining competence to be executed under Okla. Stat. tit. 22, § 1005 (2021), Cole

has not made the “substantial threshold showing” of incompetence necessary to

entitle him to said procedures. Panetti, 551 U.S. at 949 (quotation marks omitted);

8

see also Ford v. Wainwright, 477 U.S. 399, 416-17 (1986). 3 As described above, Dr.

Orth—a neutral court-appointed expert who evaluated Cole after the parties agreed

to a forensic evaluation of Cole at the OFC—found Cole to be competent to be

executed. Pet. Appx. 11a-22a.

During the July 2022 evaluation by Dr. Orth, when asked of his understanding

of the reason for the evaluation, Cole stated, ‘“well, I guess to see if I’m competent

and mentally fit to be executed,’ adding ‘they [the court] wanted to take me to get a

competency evaluation and see if I’m mentally fit for court and competent here to see

if I can go ahead and I guess be executed.’” Pet. Appx. 13a. Cole then recited the

scheduled execution dates of the two inmates who were scheduled to be executed

before him and then stated his execution was scheduled for October, “possibly the

20th. . . .” Pet. Appx. 13a (quotation marks omitted). “[T]hey want to make sure I’m

competent, and that I realize first that I killed my daughter and I went through a

trial for taking my daughter’s life and a jury found me guilty; they found me guilty of

murder and I was given the death penalty for that, and I accept responsibility for

that.” Pet. Appx. 13a.

Dr. Orth determined that Cole “has a rational understanding of the reason he

is being executed by the State of Oklahoma.” Pet. Appx. 20a-21a. See Panetti, 551

U.S. at 958-60 (the Eighth Amendment bars as cruel and unusual the execution of a

capital inmate who is incompetent and therefore lacks “a rational understanding of

3 Indeed, even the Panetti Court considered stays in the context of competence claims and

noted, “[t]he requirement of a threshold preliminary showing, for instance, will, as a general

matter, be imposed before a stay is granted or the action is allowed to proceed.” Panetti, 551

U.S. at 946-47 (emphasis added).

9

the reason for the execution”). Similarly, Cole was aware of the date of his execution,

that “the State of Oklahoma will execute him via a lethal injection . . . in the ‘execution

chamber’ at OSP,” that “he will have a ‘last meal,’ and that he will have to make plans

about what to do with his property following his execution.” Pet. Appx. 21a. Further,

Cole never referenced a belief that, “when his execution is carried out, that any sort

of supernatural, otherworldly, mystical, and/or divine, or prophetic event will

transpire.” Pet. Appx. 19a. Rather, Cole expressed that after his execution, his

“corporeal form will cease to exist . . . but note[d] that his ‘spirit’ will ‘hopefully (as he

expresses)’ return ‘to my Father in Heaven.’” Pet. Appx. 21a. Dr. Orth further

concluded that Cole “does not currently evidence any substantial, overt signs of

mental illness, intellectual impairment, and/or neurocognitive impairment that

would preclude his ability to rationally understand the reason he is being executed.”

Pet. Appx. 20a-21a.

Given Cole’s statements during Dr. Orth’s evaluation and Dr. Orth’s

unequivocal conclusions therefrom, the state district court was clearly correct in

concluding Cole had not made a substantial showing of incompetence entitling him

to further due process on his incompetence claim. Cole’s reliance on paid defense

experts Drs. Hough and Snyder does not demonstrate a compelling question as to his

competence or that Dr. Orth’s conclusion is an “outlier.” 4 Appl. 7. To be sure, Dr. Orth

4 Rather than being an outlier, Dr. Orth’s evaluation is entirely consistent with the previous

state and federal court opinions in this case. See generally Cole, 358 P.3d at 936-37

(discussing Cole’s claims of incompetence from trial through state and federal appeals,

including the fact that a state psychologist, a defense psychologist, and a jury determined

that Cole was competent to stand trial).

10

is the only expert that has recently and successfully interacted with Cole as to Cole’s

understanding of his execution. Cole has refused to meet with Dr. Hough since 2016.

Even in that 2016 meeting, when Dr. Hough asked Cole “why does the state intend

to execute you” and “[w]hat did you do that the state intends to execute you for,” Cole

refused to answer. Pet. Appx. 36a. Nonetheless, Dr. Hough concluded there was no

affirmative evidence showing Cole was competent, Pet. Appx. 42a, ignoring the

presumption of competence. See Ford, 477 U.S. at 426 (Powell, J., concurring) (a state

“may properly presume that petitioner remains sane at the time sentence is to be

carried out”); 5 see also Cole, 358 P.3d at 939 (“There is a presumption that the

prisoner is competent.”). Dr. Snyder has never met or interacted with Cole and yet

has concluded, based predominately on an MRI of Cole’s brain, that he is

incompetent. But see Hal S. Wortzel, Advanced Neuroimaging and Mild Traumatic

Brain Injury Litigation, Revisited, The Journal of the American Academy of

Psychiatry and the Law, Vol. 50, No. 3, Sept. 1, 2022, at 338 (according to the

Radiological Society of North America, “[a]t present, there is insufficient evidence

supporting the routine clinical use of these advanced neuroimaging techniques for

diagnosis and/or prognostication at the individual patient level”). 6

5 Although this language stems from Justice Powell’s concurrence, this Court has already

determined that since there was no majority opinion in Ford, Justice Powell’s concurrence,

“which also addressed the question of procedure, offered a more limited holding,” and

therefore controls. Panetti, 551 U.S. at 949; see also Cole v. Roper, 783 F.3d 707, 711 (8th Cir.

2015) (presumption of competence exists per Ford); Barnard v. Collins, 13 F.3d 871, 876 (5th

Cir. 1994) (adopting the “standard as enunciated by Justice Powell as the Ford standard”).

6 Much like his brain lesion provides zero basis for finding him incompetent, Cole’s diagnosis

with schizophrenia—by paid defense experts—likewise provides zero basis for finding him

incompetent, as “Panetti framed its test . . . in a way utterly indifferent to a prisoner’s specific

11

Given Cole’s total failure to make a substantial threshold showing of

incompetence to the state courts, his case is not an appropriate vehicle to consider

whether Oklahoma’s procedures for determining competence to be executed—for

those prisoners who have made a substantial showing—are constitutional. See

McClung v. Silliman, 6 [19 U.S.] Wheat. 598, 603 (1821) (“question before an

appellate Court is, was the judgment correct, not the ground on which the judgment

professes to proceed”); The Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184

(1959) (this Court decides cases only “in the context of meaningful litigation,” and

when the challenged issue may not affect the ultimate judgment of the court below,

that issue “can await a day when [it] is posed less abstractly”).

Second, Cole admits that, imminently, a new statute goes into effect repealing

§ 1005 and removing the Warden from Oklahoma’s procedure for determining

competence. Appl. 5, 7-8. See Okla. Stat. tit. 22, § 1005.1 (eff. Nov. 1, 2022). 7 Thus,

mental illness,” and “[t]he Panetti standard concerns, once again, not the diagnosis of such

illness, but a consequence—to wit, the prisoner’s inability to rationally understand his

punishment.” Madison v. Alabama, 139 S. Ct. 718, 728 (2019). Moreover, notably, despite the

fact that Cole was evaluated by multiple experts prior to trial and, later, in anticipation of

direct and post-conviction appeal, “[n]one of those experts concluded that Cole suffered from

paranoid schizophrenia,” Cole, 755 F.3d at 1162, even though Dr. Hough claims that Cole

“was evidently showing signs of emergent schizophrenia prior to arrest and incarceration”

for B.V.C.’s murder. Pet. Appx. 38a. Cole’s diagnosis with schizophrenia should therefore be

viewed with a great deal of skepticism.

7 The State disagrees with Cole’s insinuation that Oklahoma’s statutory procedures were

changed to remedy a “constitutional defect.” Appl. 5. Instead, the amendment of § 1005—

rather than indicating the prior version is somehow unconstitutional—serves to modernize

Oklahoma’s procedures. This modernization takes a variety of forms. For example, the

modernized process ensures that competency litigation is heard in an inmate’s county of

conviction rather than county of confinement. Okla. Stat. tit. 22, § 1005.1(F) (eff. Nov. 1,

2022). Currently, because all Oklahoma inmates are housed in McAlester, Oklahoma, all

competency claims are heard in Pittsburg County. As another example, the modernized

process streamlines the timeline of competency claims in order to prevent frivolous, last-

12

even assuming Cole demonstrates constitutional infirmity in § 1005, he has not

identified a reoccurring problem warranting this Court’s intervention. Rather, he

seeks, at bottom, error correction, which is not a worthy basis for this Court’s review.

See Halbert v. Michigan, 545 U.S. 605, 605 (2005) (explaining that, on “certiorari

review in this Court,” “error correction is not” this Court’s “prime function”). 8

Third, Cole has not identified any conflict between § 1005 and any precedent

of this Court or any other court. See Sup. Ct. R. 10(c)(b) (“A petition for a writ of

certiorari will be granted only for compelling reasons,” including for example where

a state court’s decision on a federal issue conflicts with another state or federal court).

In fact, the case law is unanimously against Cole, as the OCCA and the Tenth Circuit

have consistently rejected identical constitutional challenges to § 1005 and held that

the statute does not violate Ford, Panetti, or the Constitution (including, previously,

in Cole’s very case). See Ochoa v. Trammell, No. 12-6310, 504 F. App’x 705, 708 (10th

minute claims of incompetence intended to delay execution. Okla. Stat. tit. 22, § 1005.1(D)

(eff. Nov. 1, 2022). Currently, § 1005 imposes no time limits on claims of incompetence.

Importantly, however, none of this modernization indicates that the current version of § 1005,

or the case law interpreting it, is constitutionally deficient. Cf. Pavatt v. Carpenter, 928 F.3d

906, 928 (10th Cir. 2019) (circuit court found instruction on aggravating circumstance

sufficient to narrow jury’s discretion; in so doing, circuit court discussed how state court

amended jury instruction (after petitioner’s trial) on aggravating circumstance to “more fully

inform” juries, but the state court emphasized that this did not render prior instruction

unlawful or unconstitutional). And, irrespective of the modernizing amendment to § 1005,

the OCCA and the Tenth Circuit have already found that § 1005 complies with constitutional

mandates, as discussed herein.

8 The same can be said for Cole’s repeated assertion that the state district court erred in

finding both that he failed to make a substantial threshold showing of incompetence and that

he failed to ultimately show incompetence. Appl. 5-7. This is a mere request for error

correction. See Sup. Ct. R. 10. In any event, the state district court did not require Cole to

show he was incompetent. Rather, the court applied the proper substantial threshold showing

test and then further affirmatively determined that Cole was competent.

13

Cir. Dec. 3, 2012) (unpublished); Allen v. Workman, No. 12-6253, 500 F. App’x 708,

710-12 (10th Cir. Oct. 18, 2012) (unpublished); Cole, 358 P.3d at 938-39; Allen v.

State, 265 P.3d 754, 756 (Okla. Crim. App. 2011). Further, § 1005 is plainly

distinguishable from the invalidated Arkansas statute pointed to by Cole, Appl. 8

n.7—which delegated to the department of corrections director the initiation of

competency proceedings without providing the death-row prisoner access to the

courts to make a substantial threshold showing, see Ward v. Hutchinson, 558 S.W.3d

856, 865 (Ark. 2018)—because in Oklahoma “both the state trial court and the OCCA

review[] the warden’s gatekeeping function” through mandamus review. Allen, 500

F. App’x at 711. There is no conflict in the law, no compelling reason to grant

certiorari review, and no likelihood this Court would ultimately reverse the OCCA.

Fourth, Cole’s case further fails to present a compelling issue for certiorari

review or potential reversal because he received more due process in state court than

he was even entitled to under Ford, Panetti, and the Constitution. According to this

Court, only after he or she meets the “high” burden of making a substantial threshold

showing of incompetence is a capital defendant entitled to a fair, impartial hearing

complying with procedural due process. Panetti, 551 U.S. at 949, 952 (“Once a

prisoner seeking a stay of execution has made ‘a substantial threshold showing of

insanity,’ the protection afforded by procedural due process includes a ‘fair hearing’

in accord with fundamental fairness”; for example, “[a]fter a prisoner has made the

requisite [substantial] threshold showing, Ford requires, at a minimum, that a court

allow a prisoner’s counsel the opportunity to make an adequate response to evidence

14

solicited by the state court.”); see also Ford, 477 U.S. at 417; Bedford v. Bobby, 645

F.3d 372, 380 (6th Cir. 2011) (“A claimant is entitled to additional procedures once

he has made a “substantial” showing of insanity, not merely because he has shown a

conflict in the record.” (citation omitted)).

Here, despite not initially making such a threshold showing to the state district

court, Cole did receive an evidentiary hearing in state court to have an additional

opportunity to make that showing. Pet. Appx. 160a-319a. At that hearing, Cole

received an opportunity to be heard (via extensive briefing prior to the hearing and

in-person argument during the hearing), as well as an opportunity to present

evidence countering the opinion of the court-appointed expert (Dr. Orth). 9 Panetti,

551 U.S. at 949, 952 (minimum due process requires an inmate the opportunity to be

heard and present evidence after meeting the substantial threshold showing). At that

hearing, Cole’s evidence fell far short of making the substantial threshold showing or

overcoming the presumption of competence. In fact, the only witness Cole called was

Warden Farris, who testified he did not believe Cole to be incompetent. And, as

explained above, Cole’s expert report indicated Cole was incompetent based on a lack

of evidence to the contrary, rather than on affirmative evidence of incompetence.

While Cole seems to (incorrectly) think he was entitled to a jury trial on the issue, “a

9 Cole’s insinuation that he was limited in his presentation of evidence at this hearing, Appl.

4, is disingenuous. The state district court provided Cole the option to call his experts to

testify in a way that did not “regurgitate” their reports (09/07/2022 Tr. 26-28); nonetheless,

Cole’s attorneys made the conscious decision not to call any expert witnesses or (tellingly)

Cole himself. Moreover, it was not as if the state district court refused to consider expert

evidence—the court certainly considered and studied numerous written expert reports in

making its determination. Pet. Appx. 320a-323a.

15

constitutionally acceptable procedure [in the competency context] may be far less

formal than a trial.” Panetti, 551 U.S. at 949 (quotation marks omitted). Considering

he received more due process than he was entitled, Cole has shown neither a

compelling issue for certiorari review nor a likelihood of reversal.

B.

Cole cannot demonstrate the likelihood of irreparable harm or

that the balance of equities weighs in his favor.

Lastly, Cole has not shown the likelihood of irreparable harm if he is not

granted a stay, nor has he shown that the balance of equities and harms weighs in

his favor. Hollingsworth, 558 U.S. at 190. With respect to the likelihood of irreparable

harm, Cole’s arguments are without merit. Cole claims that the State is “likely” about

to execute an incompetent inmate who has been deprived of his constitutional rights.

Appl. 9. However, Cole entirely failed to present a substantial threshold showing of

incompetence to the state courts, and, to this day, he has zero evidence that he

currently does not rationally understand his execution or the reasons for it. Panetti,

551 U.S. at 958-60; Ford, 477 U.S. at 410. Considering his failure to meet the required

threshold burden of incompetence, Cole fails to show that there is a likelihood of

irreparable harm if he is not granted a stay. See Ramirez v. Collier, 142 S. Ct. 1264,

1282 (2022) (inmate demonstrated likelihood of irreparable harm without a stay (to

challenge Texas’s act of barring his spiritual advisor from laying hands on him during

the execution), “because he w[ould] be unable to engage in protected religious exercise

in the final moments of his life”).

Moreover, Cole fails to show that a balancing of the equities and harms weighs

in his favor. While Cole claims a stay will only result in a “brief[]” delay of his

16

execution, Appl. 10, the balance of equities and harms weighs in the State’s favor, as

this Court “must be sensitive to the State’s strong interest in enforcing its criminal

judgments without undue interference from the federal courts.” Hill, 547 U.S. at 584.

As previously noted, B.V.C., and those that survive her, have been waiting nearly two

decades for justice. Thus, “[t]he people of [Oklahoma], the surviving victims of Mr.

[Cole]’s crimes, and others like them deserve better,” especially when Cole’s

justifications for a stay are entirely without merit. Bucklew, 139 S. Ct. at 1134. See

also Ramirez, 142 S. Ct. at 1282 (the “balance of equities and public interest” weighed

in the inmate’s favor, especially when he made a “tailored” request and did “not seek

an open-ended stay of execution” (quotation marks omitted)).

C.

Conclusion.

Ultimately, in light of the foregoing, Cole has not met his burden to show that

he is entitled to a stay of execution pending the filing and disposition of a petition for

certiorari. Hollingsworth, 558 U.S. at 190.

II.

The All Writs Act does not relieve Cole of his burden to show he is

entitled to a stay.

As a final matter, Cole’s argument that this Court can “preserve” its “potential”

jurisdiction from becoming “moot” by issuing a stay of execution is without merit.

Appl. 10-12. To be true,

[a]n appellate court’s power to hold an order in abeyance while it

assesses the legality of the order has been described as “inherent,”

preserved in the grant of authority to federal courts to “issue all writs

necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law,” All Writs Act, 28 U.S.C.

§ 1651(a).

17

Nken, 556 U.S. at 426. 10 However, the All Writs Act does not simply allow federal

courts to dispense with the normal stay or injunction requirements. See Dunn v.

McNabb, 138 S. Ct. 369 (2017) (injunction was improperly granted by federal district

court because “[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,” and the “All Writs Act

does not excuse a court from making these findings” (citation omitted)).

Regardless of Cole’s concern about his claims becoming “moot,” the All Writs

Act cannot be used to circumvent this Court’s existing requirements and procedures

concerning stays of execution. See Cooey v. Strickland, 589 F.3d 210, 234 (6th Cir.

2009) (rejecting inmate’s argument that circuit court could issue stay of execution to

prevent case from becoming moot despite inmate’s failure to meet his burden, as the

All Writs Act was meant as a “residual source of authority,” not a way to circumvent

existing procedures); Lambert v. Buss, 498 F.3d 446, 454 (7th Cir. 2007) (“There is no

reason why the All Writs Act can or should be used to thwart the proper application

of the factors associated with the issuance or denial of a preliminary injunction.”);

Green v. Warden, U.S. Penitentiary, 699 F.2d 364, 367 (7th Cir. 1983) (“The intent of

the Act is to effectuate established jurisdiction, not to enlarge it.”). Because Cole

cannot meet his burden of demonstrating his entitlement to a stay of execution

pending the filing and disposition of a petition for certiorari, Cole’s request for a stay

of execution should be denied.

10 See Sup. Ct. R. 20.1 (“Issuance by the Court of an extraordinary writ authorized by 28

U.S.C. § 1651(a) is not a matter of right, but of discretion sparingly exercised.”).

18

CONCLUSION

This Court should deny Cole’s stay application.

JOHN M. O’CONNOR

Attorney General of Oklahoma

TESSA L. HENRY

Assistant Attorney General

Counsel of Record

OKLAHoMA OFFICE OF THE

ATTORNEY GENERAL

313 NE TWENTY-FIRST ST.

OKLAHOMA CITY, OK 73105

TESSA.HENRY@OAG.OK.GOV

(405) 522-4394

Counsel for Respondent

October 17, 2022