Opposition Brief — Brian J. Dorsey, Petitioner v. David Vandergriff, Warden

Supreme Court briefApr 8, 2024

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Nos. 23-7153 and 23A890

In the Supreme Court of the United States

Brian Dorsey,

Petitioner,

David Vandergriff, Warden,

Respondent.

Brief in Opposition to Petition for Writ of Certiorari to

the Supreme Court of Missouri and

Suggestions in Opposition to Stay of Execution

ANDREW BAILEY

Missouri Attorney General

GREGORY GOODWIN

Chief Counsel, Public Protection Section

Counsel of Record

P.O. Box 899

Jefferson City, MO 65102

Gregory.Goodwin@ago.mo.gov

(573) 751-7017

Attorneys for Respondent

Capital Case

Questions Presented

1. Should this Court review a claim where the court below found the claim

was not legally cognizable as a matter of state law?

2. Should this Court review a fact-bound claim when the petitioner failed

to present the necessary facts to the factfinder?

3. Should this Court reconsider the “evolving standards of decency”

framework?

Table of Contents

Questions Presented ............................................................................................ 1

Table of Contents ................................................................................................. 2

Table of Authorities ............................................................................................. 4

Opinions Below .................................................................................................... 4

Jurisdiction........................................................................................................... 7

Statement ............................................................................................................. 7

Reasons for Denying the Petition ..................................................................... 15

I. This case is a poor vehicle for considering the questions presented. .... 15

A. Dorsey’s tactical decision to hold his claim in reserve until the

eleventh hour is a sufficient reason to deny certiorari review................. 15

B. Dorsey’s claim here is fact bound, but Dorsey refused to develop the

factual basis in the record below. .............................................................. 18

C. The decision below rests on an independent and adequate state-law

ground. ........................................................................................................ 20

II. If the Court grants certiorari review, it should also overrule the

“evolving standards of decency” framework. .......................................... 21

A. The original public meaning of the Eighth Amendment prohibits

punishments that were cruel and unusual at the time of the founding.. 22

B. The “evolving standards of decency” framework is ahistorical,

atexual, and antithetical to the structure of our Constitution. ............... 22

C. A return to the original public meaning of the Eighth Amendment

would not require reversal of all this Court’s precedent. ......................... 27

III.

Dorsey’s execution does not offend the Eighth Amendment. ........... 28

A. The Eighth Amendment does not prohibit the execution of

condemned murderers who have followed prison rules after their crimes.

............................................................................................................. 28

B. Dorsey has refused to accept responsibility for his offenses, and

therefore is not within his self-described “unique class of people” who

may never be executed. .............................................................................. 33

Reasons to Deny Dorsey’s Request for a Stay .................................................. 35

Conclusion .......................................................................................................... 38

Table of Authorities

Cases

Atkins v. Virginia,

536 U.S. 304 (2002) ........................................................................................ 31

Baze v. Rees,

553 U.S. 35 (2008) .......................................................................................... 23

Bucklew v. Precythe,

587 U.S. 119 (2019) ................................................................ 19, 22, 23, 27, 36

Calderon v. Thompson,

523 U.S. 538 (1998) .................................................................................. 37, 38

Coker v. Georgia,

433 U.S. 584 (1977) ........................................................................................ 31

Coleman v. Thompson,

501 U.S. 722 (1991) .................................................................................. 20, 21

Cooper v. Holden,

189 S.W.3d 614 (Mo. App. 2006).................................................................... 20

Dorsey v. Vandergriff,

30 F.4th 752 (8th Cir. 2022) .................................................. 13, 16, 19, 33, 35

Dunn v. Madison,

583 U.S. 10 (2017) .......................................................................................... 27

Enmund v. Florida,

458 U.S. 782 (1982) ........................................................................................ 31

Ford v. Wainwright,

477 U.S. 399 (1986) ........................................................................................ 27

Fox Film Corp. v. Muller,

296 U.S. 207 (1935) ........................................................................................ 20

Furman v. Georgia,

408 U.S. 238 (1972) ........................................................................................ 31

Glossip v. Gross,

576 U.S. 863 (2015) ........................................................................................ 23

Graham v. Florida,

560 U.S. 48 (2010) .......................................................................................... 29

Hill v. McDonough,

547 U.S. 573 (2006) .................................................................................. 35, 36

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019) .................................................................................... 20

In re Kemmler,

136 U.S. 436 (1890) .................................................................................. 19, 23

Kennedy v. Louisiana, 554 U.S. 407 (2008) .................................... 22, 23, 28, 31

Nance v. Ward,

597 U.S. 159 (2022) ........................................................................................ 17

Nelson v. Campbell,

541 U.S. 637 (2004) ........................................................................................ 36

Panetti v. Quarterman,

551 U.S. 930 (2007) ........................................................................................ 27

Philadelphia & Reading Coal & Iron Co. v. Gilbert,

245 U.S. 162 (1917) ........................................................................................ 17

Roper v. Simmons,

543 U.S. 551 (2005) ........................................................................................ 31

Rosenberg v. United States,

346 U.S. 322 (1953) ........................................................................................ 20

Shinn v. Ramirez,

596 U.S. 366 (2022) .................................................................................. 26, 37

State ex rel. Dorsey v. Vandergriff,

2024WL 1194417 (Mo. Mar. 20, 2024) .................................. 14, 18, 29, 30, 34

State v. Dorsey,

318 S.W.3d 648 (Mo. 2010) .......................................................... 12, 30, 33, 34

Trop v. Dulles,

356 U.S. 86 (1958) ........................................................................ 21, 22, 24, 31

Wainwright v. Sykes,

433 U.S. 72 (1977) .......................................................................................... 20

Weems v. United States,

217 U.S. 349 (1910) .................................................................................. 28, 32

Wilkerson v. Utah,

99 U.S. 130 (1878) .......................................................................................... 23

Younger v. Harris,

401 U.S. 37 (1971) .......................................................................................... 26

Statutes

28 U.S.C. § 1257(a) .............................................................................................. 7

Mo. Const. art. IV, § 7 ........................................................................................ 20

Other Authorities

Calla M. Mears, Risk of Choking to Death on One's Own Blood Is Not Cruel

and Unusual Punishment Bucklew v. Precythe, 139 S. Ct. 1112 (2019), 85

Mo. L. Rev. 609, 630 (2020) ........................................................................... 25

Jeffrey Omar Usman, State Legislatures and Solving the Eighth Amendment

Ratchet Puzzle, 20 U. Pa. J. Const. L. 677 (2018) ........................................ 25

John D. Bessler, A Century in the Making: The Glorious Revolution, the

American Revolution, and the Origins of the U.S. Constitution’s Eighth

Amendment, 27 Wm. & Mary Bill Rts. J. 989 (2019)................................... 25

John F. Stinneford, The Original Meaning of "Unusual": The Eighth

Amendment As A Bar to Cruel Innovation,The Original Meaning of

"Unusual": The Eighth Amendment As A Bar to Cruel Innovation, 102 Nw.

U.L. Rev. 1739 (2008) ..................................................................................... 25

John H. Blume et al., Death by Numbers: Why Evolving Standards Compel

Extending Roper's Categorical Ban Against Executing Juveniles from

Eighteen to Twenty-One, 98 Tex. L. Rev. 921 (2020)................................... 26

Opinions Below

The opinion of the Missouri Supreme Court is not yet published, but is

available on Westlaw as State ex rel. Dorsey v. Vandergriff, 2024WL 1194417

(Mo. Mar. 20, 2024). The opinion is reproduced as Pet. App. A.

Jurisdiction

The Supreme Court of Missouri issued its judgment denying Dorsey’s

state habeas petition on March 20, 2024. Pet. App. A. The petition for writ of

certiorari was filed on April 1, 2024. Dorsey invokes the Court’s jurisdiction

under 28 U.S.C. § 1257(a).

Statement 1

1. In 2006, just two days before Christmas, S.B. (Dorsey’s cousin) started

the day by baking cookies and making a gingerbread house with her four-year

old daughter, J.B., and S.B.’s mother. Dist. Dkt. 29-2 at 23. 2 J.B. was to spend

the night with her grandparents. Id. After they finished baking cookies and

making the gingerbread house, J.B. left with S.B.’s mother. Id. Between 3:00

1 Supreme Court Rule 15 requires a respondent to “address any perceived

misstatement of fact or law in the petition that bears on what issues properly

would be before the Court if certiorari were granted.” Dorsey’s petition contains

such misstatements. For instance, Dorsey makes statements of supposed fact

and then cites to the decision below to support those statements. See, e.g., Pet.

at 2. But the opinion below says “Dorsey alleges . . . .” In other words, Dorsey

made allegations below, which were rejected, and then cites to the opinion

below as though that court agreed with Dorsey when it did not.

2 Respondent cites to the record of the district court that adjudicated

Dorsey’s federal habeas petition.

p.m. and 6:30 p.m., Dorsey asked S.B., his cousin, for money and help because

Dorsey owed money to drug dealers. Id. at 33, 37. B.B., S.B.’s husband, agreed

to help Dorsey confront some drug dealers who were at Dorsey’s apartment

without permission. Id. at 37. S.B., B.B., and their friend went to Dorsey’s

apartment to help Dorsey. Id. S.B. and B.B. stayed until the drug dealers left

and then took Dorsey into their home to protect him. Id. at 33. Before leaving

the apartment, S.B. told Dorsey to gather Dorsey’s dirty clothes so that S.B.

could wash them for him. Id. at 33–34. When J.B. learned that Dorsey intended

to spend the night at the couple’s home, J.B. wanted to come home so she could

see Dorsey. Dist. Dkt. 29-2, at 23. S.B.’s mother brought J.B. back home and

then stayed for a while to visit. Dist. Dkt. 29-2, at 24. Other friends and family

members joined in. Dist. Dkt. 29-2, at 23.

The women visited inside the house while the men, including Dorsey,

went to the “shop” to drink beer and shoot pool. Dist. Dkt. 29-2, at 24, 29–30,

38. Before the men could shoot pool, they had to clean off the pool table. Dist.

Dkt. 29-2, at 30, 38. B.B. removed a single-shot 20-gauge shotgun from the

pool table. Dist. Dkt. 29-2, at 38. The shotgun was B.B.’s first gun, a gift from

his father. Dist. Dkt. 29-2, at 88. The shotgun was unloaded. Dist. Dkt. 29-2,

at 38. Eventually, all the houseguests left, leaving S.B., B.B., J.B., and Dorsey

in the house.

After everyone went to bed, Dorsey retrieved the shotgun and shot S.B.

in the lower right jaw. Dist. Dkt. 29-2, at 67, 128. The force of the shotgun blast

was so powerful that it separated S.B.’s brain from her spinal cord, doing

“massive damage to [her] brain.” Dist. Dkt. 29-2, at 67. It was a “devastating

injury.” Dist. Dkt. 29-2, at 68. Dorsey shot B.B. in the head with the shotgun

as well. Dist. Dkt. 29-2, at 68, 128. B.B.’s gunshot wound had gunpowder in it,

proving that the wound was a “close-contact wound” where the gun was

“pressed very close” to B.B.’s body. Dist. Dkt. 29-2, at 68. Dorsey then raped

S.B. Dist. Dkt. 29-2, at 100.

After murdering S.B. and B.B. and raping S.B., Dorsey stole personal

property, such as S.B.’s old cell phone, S.B. and B.B.’s jewelry, two firearms,

and J.B.’s DVD copy of Bambi II. Dist. Dkt. 29-2, at 28, 32, 74, 76, 87. Dorsey

used these items to try to repay his drug debt. Dist. Dkt. 29-2, at 39–41. Dorsey

also stole S.B.’s car. Dist. Dkt. 29-2, at 22–23, 90. Dorsey could not take his

own car because B.B., a mechanic, had been repairing Dorsey’s car at B.B.’s

expense, but the repairs were not finished. Dist. Dkt. 29-2, at 22–23, 90.

On Christmas Eve, S.B.’s mother received a phone call because S.B.,

B.B., and J.B. had not yet arrived for a family gathering. Dist. Dkt. 29-2, at 24.

S.B.’s mother and father went to the couple’s home to check on them. Dist. Dkt.

29-2, at 24. When they entered the house, they found J.B. sitting on the couch

drinking chocolate milk and eating chips. Dist. Dkt. 29-2, at 24. J.B. jumped

up and was glad to see her grandparents, and she said that she could not wake

up S.B. Dist. Dkt. 29-2, at 22, 24. After knocking and calling for S.B. and B.B.,

S.B.’s father forced the bedroom door open and they discovered the bodies. Dist.

Dkt. 29-2, at 24–25.

When law enforcement entered the bedroom, they noticed the smell of

bleach coming from S.B.’s body. Dist. Dkt. 29-2, at 56. S.B.’s mid-section and

groin had a “pour pattern,” which was revealed under an alternative light

source. Dist. Dkt. 29-2, at 57, 60. S.B.’s body was examined and a rape kit was

performed. Dist. Dkt. 29-2, at 69. Swabs were collected for DNA testing. Dist.

Dkt. 29-2, at 97. Upon examination, those vaginal swabs screened positive for

the presence of semen. Dist. Dkt. 29-2, at 98. The crime lab could not confirm

that semen was present because of “chemical insults,” which included “soap,

detergent, cleansers and so forth.” Dist. Dkt. 29-2, at 98. Sperm cells were

detected. Dist. Dkt. 29-2, at 98. Dorsey could not be eliminated as the

contributor of the DNA found on the vaginal swabs. Dist. Dkt. 29-2, at 100.

When Dorsey was interviewed by police officers, he confessed to the

murders, telling officers they had the “right guy concerning the death of [S.B.

and B.B.].” Dist. Dkt. 29-2, at 79. Dorsey also had S.B.’s social security card in

his back pocket. Dist. Dkt. 29-2, at 78.

After the murder, S.B.’s parents began raising J.B. Dist. Dkt. 29-2, at 26.

S.B.’s mother had to retire from working. Dist. Dkt. 29-2, at 26. J.B. began

attending counseling. Dist. Dkt. 29-2, at 26. S.B.’s mother described J.B.’s

“nightmares and crying” as “just horrible.” Dist. Dkt. 29-2, at 26.

2. Dorsey’s experienced trial attorneys advised him to plead guilty

because, in one counsel’s view, “the evidence of [Dorsey’s] guilt was

overwhelming” and there was “a substantial chance of losing on murder first

degree” and “a very substantial chance that [Dorsey] would receive the death

penalty.” Dist. Dkt. 29-11 at 588. Dorsey agreed with counsels’ advice and

pleaded guilty.

Dorsey then received jury sentencing, where his counsels determined the

best strategy was for Dorsey to accept responsibility, for Dorsey to try to get

credit for that acceptance from the jury, and for Dorsey to show to the jury that

he “had some humanity in him.” Dist. Dkt. 29-11, at 589. One trial counsel

hoped to show to the jury that this murder was “an aberration for [Dorsey];

that [Dorsey] had a history of being a good person, that [Dorsey] had some

things in him that a jury could connect to.” Dist. Dkt. 29-11, at 595. In that

trial counsel’s experience, juries that returned life verdicts did so because of

that kind of evidence. Id. Dorsey’s other trial counsel explained that the trial

strategy was “to present [Dorsey] as best we could, as sorry, remorseful, deeply

upset.” Dist. Dkt. 29-11, at 731. At the sentencing, the prosecutor described

trial counsel’s closing argument as “a very eloquent plea for mercy.” Dist. Dkt.

29-2, at 145.

Dorsey’s trial counsel employed an investigator, and used that

investigator as they worked through Dorsey’s case. Dist. Dkt. 29-2, at 566, 570,

579. Additionally, trial counsel received information and investigative

materials from the Missouri State Public Defender System, and used that

information as they prepared Dorsey’s defense. 3 Dist. Dkt. 29-2, at 247.

Despite trial counsels’ best efforts, the jury returned verdicts of death.

Dist. Dkt. 29-2, at 149. The jury found seven aggravating circumstances

beyond a reasonable doubt, including that the murders were outrageously and

wantonly vile, horrible, and inhuman, that the murders were committed so

Dorsey could steal, and that Dorsey raped S.B. Dist. Dkt. 29-2, at 149.

3. After his conviction and sentences of death, Dorsey appealed, and the

Missouri Supreme Court affirmed Dorsey’s convictions and sentences. State v.

Dorsey, 318 S.W.3d 648 (Mo. 2010). This Court denied certiorari review. Dorsey

v. Missouri, 562 U.S. 1067 (2010). Dorsey then sought collateral post-conviction

relief, which the post-conviction court denied. The Missouri Supreme Court

affirmed the denial of post-conviction relief. Dorsey v. State, 448 S.W.3d 276

(Mo. 2014). Dorsey requested and received additional time to file a certiorari

petition in this Court from the Supreme Court of Missouri’s denial of post-

In the petition, Dorey asserts there “is no dispute regarding the

following facts. . . .” Pet. at 11. The following list is argument, not facts, and is

disputed by the State in any event.

conviction relief. Dorsey v. Missouri, 14A-987 (2015). However, it does not

appear that Dorsey filed for certiorari review. Instead, Dorsey petitioned for

federal habeas review, and the district court denied Dorsey’s claims without

granting a certificate of appealability. Dorsey v. Steele, 2019WL 4740518 (W.D.

Mo. Sept. 27, 2019). An administrative panel of the Eighth Circuit granted a

certificate of appealability, but after briefing and argument, the merits panel

determined that Dorsey was not entitled to habeas relief. Dorsey v.

Vandergriff, 30 F.4th 752 (8th Cir. 2022). Dorsey litigated additional issues in

federal court unrelated to this certiorari petition. See, e.g., Dorsey v.

Vandergriff, 23-5652 (2023).

4. After this Court denied certiorari review of Dorsey’s federal habeas

petition, the State of Missouri requested that the Supreme Court of Missouri

issue an execution warrant. Dorsey opposed that motion on June 21, 2023. One

of the reasons for Dorsey’s opposition was his claim that he had a “soon-to-befiled [state habeas] petition,” and the Missouri Supreme Court should

adjudicate that forthcoming petition first. Resp. App. A3. Over the next six

months, Dorsey did not file his state habeas petition. The Missouri Supreme

Court issued an order on December 13, 2023, setting Dorsey’s execution date

for April 9, 2024. Then, after the Supreme Court of Missouri issued its

execution warrant, Dorsey filed a state habeas petition, raising the claim that

is before this court in Dorsey v. Vandergriff, 23-7119.

Weeks later, Dorsey filed yet another state habeas petition, this time

raising claims that he was actually innocent of the death penalty, that he could

make a gateway claim of actual innocence, and that, as relevant here, the

Eighth Amendment barred his execution. Dorsey offered no evidence to

support his claim other than a declaration from a former warden, and two

expert reports. The Missouri Supreme Court found that Dorsey’s claim, as

pleaded, was not legally cognizable because it was a plea for clemency. State

ex rel. Dorsey v. Vandergriff, SC100486, 2024WL 1194417 at *1, *8 (Mo. Mar.

20, 2024). The court also performed ex gratia review, rejected his evidence,

and found that his claim would fail. Id. at *8.

Reasons for Denying the Petition

This case is a poor vehicle for considering the questions

presented.

For at least three reasons, this case is a poor vehicle for the Court’s

consideration of Dorsey’s questions presented. First, Dorsey has brought this

claim as part of a piecemeal litigation strategy of extreme delay. Second,

Dorsey’s claim is fact-bound, yet he presented no facts to support his claim,

only opinions from retained persons, to the state courts. And third, the

Supreme Court of Missouri found the claim was not legally cognizable in state

habeas, and its rejection of the claim on that basis is an independent and

adequate state law ground, which precludes this Court’s review.

Dorsey’s tactical decision to hold his claim in reserve

until the eleventh hour is a sufficient reason to deny

certiorari review.

Dorsey has engaged in a bad-faith litigation strategy designed to

withhold his claim until the eleventh hour, despite having the opportunity to

present this claim months or years ago.

Although Dorsey argues otherwise, Dorsey could have presented his

claim long ago. The gravamen of Dorsey’s complaint is that he has been

sufficiently “rehabilitated” such that his execution will violate the Eighth

Amendment.

Pet.

25.

Dorsey

does

not

identify

what

constitutes

“rehabilitation.” Likewise, Dorsey does not identify when his “rehabilitation”

was complete. 4 However, during post-conviction relief proceedings in 2012,

Dorsey was arguing that his prison records showed he should not be executed.

Then, Dorsey used his alleged good behavior in prison to support his federal

habeas petition. Dorsey v. Steele, 4:15-CV-8000-RK, 2019WL 4740518 at *18–

19 (W.D. Mo. Sept. 27, 2019). That claim was reviewed by the Eighth Circuit.

Dorsey, 30 F.4th at 754. Dorsey never says whether he was “rehabilitated”

during post-conviction relief, federal habeas review, or only after an execution

date was set. Pet. 4 n.2. If, as Dorsey suggests, his “rehabilitation” occurred

when he was imprisoned because he was removed from drugs, then Dorsey was

“rehabilitated” seventeen years ago.

Recognizing that he has delayed bringing the claim, Dorsey attempts to

justify his delay by contending that his claim did not become ripe until an

execution warrant was issued. Pet. 4 n.2. Even assuming that Dorsey is right,

that means Dorsey believes his claim became ripe on December 13, 2023. But

Dorsey did not file his claim in December. Nor did he file his claim in January.

Instead, Dorsey waited more than two months, and then filed his claim on

February 25, 2024. There is no plausible explanation for this delay.

4 As explained in Point II, infra, this free-form analysis strongly counsels

against adopting Dorsey’s argument and against the “evolving standards of

decency” framework.

Then, less than a month later, on March 20, 2024, the Missouri Supreme

Court rejected Dorsey’s claim. Instead of filing his petition for this Court’s

review immediately, Dorsey waited until Sunday, April 7, 2024, a mere 54

hours before the execution. Again, there is no plausible explanation for this

delay, especially when, as here, Dorsey has already filed a petition for

certiorari review arising from the same opinion that he now challenges in this

case number.

The Court should not reward Dorsey’s strategy of intentional delay. This

Court has recently reaffirmed that it disfavors the use of a last-minute legal

challenge as a pretext to achieve a stay of execution. See, e.g., Nance v. Ward,

597 U.S. 159, 174 (2022). While Nance spoke to the specifics of a § 1983

challenge, its reasoning applies with equal force to the situation here: a

dilatory certiorari petition seeking to present a procedurally barred claim that

the petitioner deliberately chose not to present to this Court until the eleventh

hour. Id. (holding “we do not for a moment countenance ‘last-minute’ claims

relied on to forestall an execution.”). That is doubly true when, as here, review

is discretionary. Philadelphia & Reading Coal & Iron Co. v. Gilbert, 245 U.S.

162, 165 (1917).

Dorsey’s claim here is fact bound, but Dorsey refused

to develop the factual basis in the record below.

Under Dorsey’s own articulation of his theory for relief, Dorsey’s claim is

fact bound. That is, it turns on several nebulous pieces of evidence. For

instance, Dorsey has alleged that many corrections officers have signed a letter

in support of his clemency petition. Pet. 11. But Dorsey refused to provide

those letters to the Supreme Court of Missouri. State ex rel. Dorsey v.

Vandergriff, 2024WL 1194417 at *7 n.11 (Mo. Mar. 20, 2024). And when

Respondent pointed out Dorsey’s refusal below, Dorsey argued he was not

required to include his evidence along with his petition because he had

requested an evidentiary hearing. Reply in Supp. at 6, State ex rel. Dorsey v.

Vandergriff, SC100486 (Mo). Dorsey’s certiorari petition says nothing about

the record now. Pet. 1–33. That is because the record is devoid of any evidence

that could support his argument.

Elsewhere, Dorsey argues that he has a spotless prison record, and that

“no death-sentenced person has ever had a better prison record.” Pet. 5.

Despite having the prison records, Dorsey refused to include them in the record

below. State ex rel. Dorsey v. Vandergriff, 2024WL 1194417 at *7 n.11 (Mo.

Mar. 20, 2024). But when the United States Court of Appeals reviewed some

of Dorsey’s prison records, they described them as equivocal. 5 Dorsey, 30 F.4th

at 754. That court noted that Dorsey “had not ‘[e]xpressed need for selfimprovement,’ had ‘[d]efied authority,’ had not ‘[a]ccepted responsibility for his

situation,’ and was ‘[s]elf-centered.’” Id. (alterations in original). Dorsey’s

experts declined to confront the Eighth Circuit’s finding.

Dorsey’s argument relies on little more than his lawyers’ arguments, and

statements signed by those retained by Dorsey’s attorneys. If the Eighth

Amendment prohibits the execution of a person whose attorneys have retained

experts to say the person’s life should be spared, then there can be no capital

punishment. And yet, capital punishment is not barred by the Eighth

Amendment. Bucklew v. Precythe, 587 U.S. 119, 131–32 (2019) (quoting In re

Kemmler, 136 U.S. 436, 447 (1890)).

At bottom, Dorsey has constructed a new theory, and he has contended

that his theory’s analysis depends on what he calls the unique facts of his case,

but Dorsey has refused to include evidence that would support those facts in

the record for this Court’s consideration. His argument is unworkable, and his

claim is unreviewable. That is reason alone to refuse certiorari review.

5 When Dorsey committed the instant offenses, he was on supervision for

another offense and he was returned to prison to serve his sentence while

awaiting the trial.

The decision below rests on an independent and

adequate state-law ground.

“Federal courts are courts of limited jurisdiction.” Home Depot U.S.A.,

Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019) (citations and alterations omitted).

The United States Constitution limits “the character of the controversies over

which federal judicial authority may extend,” and lower federal courts are

further constrained by statutory limits. Id. (citations and alterations omitted).

The “well-established principle of federalism” means that state-court decisions

resting on state law principles are “immune from review in the federal courts.”

Wainwright v. Sykes, 433 U.S. 72, 81 (1977). This rule applies “whether the

state law ground is substantive or procedural.” Coleman v. Thompson, 501 U.S.

722, 729 (1991) (citing Fox Film Corp. v. Muller, 296 U.S. 207, 210 (1935)).

Missouri does not allow state courts to adjudicate requests for clemency

because the Missouri constitution reserves clemency decisions to the Missouri

Governor. See, e.g., Cooper v. Holden, 189 S.W.3d 614, 620 (Mo. App. 2006); see

also Mo. Const. art. IV, § 7. This rule is a jurisdictional in nature; pleas for

clemency are outside the case-or-matter jurisdictional requirement of the

Missouri constitution. 6 Cooper, 189 S.W.3d at 620. Because an adequate and

6 The Missouri Supreme Court’s holding in Dorsey’s case is similar to

Justice Frankfurter’s statement respecting the denial of a motion for stay of

execution more than 70 years ago. Rosenberg v. United States, 346 U.S. 322,

independent state-law ground supports the Missouri Supreme Court’s order

below, this Court has “no power to review” the order, and the “resolution of any

independent federal ground for the decision could not affect the judgment and

would therefore be advisory.” Coleman, 501 U.S. at 729.

None of this means that a properly constructed Eighth Amendment

claim would be unreviewable. To be sure, Dorsey could have constructed a state

habeas petition that would have properly presented an Eighth Amendment

claim. But he did not. And if there were no state court procedure available,

then Dorsey could have attempted to file a second-in-time federal habeas

petition. But he did not. Instead, Dorsey decided to proceed in a way and in a

forum that resulted in a decision that rests upon an adequate and independent

state law ground. Dorsey’s decision, in turn, precludes this Court’s review.

II.

If the Court grants certiorari review, it should also overrule the

“evolving standards of decency” framework.

Dorsey’s argument is premised on the “evolving standards of decency”

framework announced by a plurality of the Court in Trop v. Dulles, 356 U.S.

86, 101 (1958) (plurality opinion). The Missouri Supreme Court rightly denied

this claim. As set forth elsewhere, the Court should deny this petition. But if

the Court grants review, it should also consider whether Trop and its

322 (1953) (“It is not for this Court even remotely to enter into the domain of

clemency reserved by the Constitution exclusively to the President.”).

progeny—in particular Kennedy v. Louisiana, 554 U.S. 407 (2008)—are

consistent with the original public meaning of the Eighth Amendment. 7

The original public meaning of the Eighth Amendment

prohibits punishments that were cruel and unusual at

the time of the founding.

In Bucklew v. Precythe, 587 U.S. 119, 130 (2019), the Court began with

a brief discussion of the constitutionality of capital punishment. The Court first

observed that capital punishment is provided for in the text of the constitution.

Id. (citing Amend. V). Then the Court observed that, as a general principle,

“the judiciary bears no license to end a debate [over capital punishment]

reserved for the people and their representatives.” Bucklew, 587 U.S. at 130.

The “evolving standards of decency” framework is

ahistorical, atexual, and antithetical to the structure of

our Constitution.

Dorsey’s invocation of the “evolving standards of decency” framework for

death penalty abolition—for him at least—runs counter to this country’s

7 Respondents are without sufficient time to draft a conditional-cross

petition because Dorsey delayed bringing his certiorari petition until 11:19

a.m. on Sunday, April 7, 2024. The Court could treat this point as a conditional

cross petition. Or, if the Court grants certiorari, then the Court should add the

following questions:

1. Whether the “evolving standards of decency” framework of Trop v.

Dulles, 356 U.S. 86 (1958) (plurality opinion), is consistent with the original

public meaning of the Eighth Amendment?

2. Whether Kennedy v. Louisiana, 554 U.S. 407 (2008), was rightly

decided?

constitutional history. When the Constitution was adopted, the death penalty

was “the standard penalty for all serious crimes.” Bucklew, 587 U.S. at 129

(quoting S. Banner, The Death Penalty: An American History 23 (2002)

(Banner)). Indeed, “The death penalty was an accepted punishment at the time

of the adoption of the Constitution and the Bill of Rights.” Glossip v. Gross, 576

U.S. 863, 867 (2015). One need look no further than the text of the constitution

itself, which expressly recognizes the possibility of capital punishment.

Amend. V.

Nearly 150 years ago, this Court held that the Eighth Amendment’s ban

on cruel and unusual punishment required something more than “the mere

extinguishment of life.” In re Kemmler, 136 U.S. at 447 (citing Wilkerson v.

Utah, 99 U.S. 130, 135 (1878)). More recently, Justice Thomas articulated the

Eighth Amendment’s original public meaning as prohibiting a punishment

that superadded pain. Baze v. Rees, 553 U.S. 35, 96 (2008) (Thomas, J.,

concurring). This Court has come just short of acknowledging the evolvingstandard-of-decency’s shortcomings. Bucklew, 587 U.S. at 135. Yet, the

dissenting justices in Bucklew continued to rely on the “evolving standards of

decency” framework, and on Kennedy v. Louisiana, 554 U.S. 407 (2008).

Bucklew, 587 U.S. at 158 (Breyer, J., dissenting). But as Bucklew, Glossip,

Kemmler, and Wilkerson, show, Trop and Kennedy are inconsistent with the

original public meaning of the Eighth Amendment, and if this Court grants

certiorari review, then it should also direct that this question be briefed.

Little needs to be said to show that the “evolving standards of decency”

framework is atextual. The Trop plurality did not attempt to tie its creation of

this new framework to the Constitution’s text. In its analysis, the Trop

plurality first wrote, “The basic concept underlying the Eighth Amendment is

nothing less than the dignity of man.” Trop, 356 U.S. at 100. From there, the

plurality went on to hold that “the words of the Amendment are not precise,

and that their scope is not static.” Id. at 100–01. The plurality then concluded,

“The Amendment must draw its meaning from the evolving standards of

decency that mark the progress of a maturing society.” Id. at 101.

In this one paragraph, four justices wrote that the Eighth Amendment

is unclear and that its text must be separated from its purpose, and they then

invented a new framework to analyze Eighth Amendment claims that was “not

static.” Id. at 99–101. In other words, the “evolving standards of decency”

framework is not accidentally atextual, it is purposefully atextual on purpose.

But the framework is more than just merely ahistorical and atextual; it

is antithetical to the Constitution itself. The purpose of the test, according to

the Trop plurality, is to allow five—or sometimes even four—justices to

determine on an ad hoc basis whether they wish to allow the death penalty to

continue in a given instance. In other words, as one commentator put it, the

“evolving standards of decency” framework is “an extraordinarily resultsoriented approach to the Cruel and Unusual Punishments Clause.” John F.

Stinneford, The Original Meaning of "Unusual": The Eighth Amendment As A

Bar to Cruel Innovation, 102 Nw. U.L. Rev. 1739, 1756 (2008). Other

commentators have reached the same conclusion, writing that “‘[e]volving

standards of decency’ has been an especially decisive factor in cases regarding

capital punishment, creating a non-static standard that can vary with the

composition of who sits on the bench.” Jared Lockhart & Madeline Hill,

Evolving Standards of Decency: A View of 8th Amendment Jurisprudence and

the Death Penalty, 34 BYU Prelaw Review at 34 (2020). And still others have

written that the framework is little more than “an expressly living constitution

honoring framework of constitutional analysis.” Jeffrey Omar Usman, State

Legislatures and Solving the Eighth Amendment Ratchet Puzzle, 20 U. Pa. J.

Const. L. 677, 725 (2018).

Of course, many writers expressly acknowledged that the end-goal of the

“evolving standards of decency” framework is the abolition of the death

penalty. See e.g., Calla M. Mears, Risk of Choking to Death on One's Own Blood

Is Not Cruel and Unusual Punishment Bucklew v. Precythe, 139 S. Ct. 1112

(2019), 85 Mo. L. Rev. 609, 630 (2020) (“then maybe we have no business

imposing [the death penalty] at all.”); John D. Bessler, A Century in the

Making: The Glorious Revolution, the American Revolution, and the Origins of

the U.S. Constitution’s Eighth Amendment, 27 Wm. & Mary Bill Rts. J. 989,

1076 (2019) (“For the Eighth Amendment to be read in a principled manner,

though, the punishment of death . . . must be declared unconstitutional.”); John

H. Blume et. al., Death by Numbers: Why Evolving Standards Compel

Extending Roper's Categorical Ban Against Executing Juveniles from Eighteen

to Twenty-One, 98 Tex. L. Rev. 921, 951 (2020).

The upshot is clear: the “evolving standards of decency” framework is

inconsistent with the structure of our Constitution. Under “Our Federalism,”

it is the States, not the federal government, that bear primary responsibility

for drafting, enacting, and enforcing criminal law. Younger v. Harris, 401 U.S.

37, 43–45 (1971); see also Shinn v. Ramirez, 596 U.S. 366, 376 (2022) (“The

power to convict and punish criminals lies at the heart of the States’ ‘residuary

and inviolable sovereignty.’”) (citing The Federalist No. 39, p. 245 (C. Rossiter

ed. 1961) (J. Madison). But as Dorsey’s argument and the above commentators

show, the “evolving standards of decency” framework is little more than a

method to allow federal courts to veto the application of the death penalty. The

only difference is the scope of the veto. Some advocate for an all-out ban, others

for a never-ending stream of categorical exceptions, and still others, like

Dorsey, for the imposition of individualized vetoes. Pet. 20–24, 27–28.

None of that can be squared with the history, text, or structure of our

Constitution. Again, “the same Constitution that permits States to authorize

capital punishment also allows them to outlaw it. But it does mean that the

judiciary bears no license to end a debate reserved for the people and their

representatives.” Bucklew, 587 U.S. at 130.

A return to the original public meaning of the Eighth

Amendment would not require reversal of all this

Court’s precedent.

A return to the original public meaning of the Eighth Amendment would

not necessitate a wholescale reversal of this Court’s jurisprudence. For

instance, in Ford v. Wainwright, the majority opinion adopted a formal bar to

execution of the insane, explaining that “[f]or centuries no jurisdiction has

countenanced the execution of the insane”. Ford v. Wainwright, 477 U.S. 399,

401 (1986). In Panetti v. Quarterman, the Court explained that State courts

were required to follow certain minimum procedures when assessing these

Ford claims. Panetti v. Quarterman, 551 U.S. 930, 950 (2007). In Dunn v.

Madison, the Court stated, “[I]n Ford, we questioned the ‘retributive value of

executing a person who has no comprehension of why he has been singled

out.’ ” Dunn v. Madison, 583 U.S. 10, 11 (2017). But the ultimate reasoning

behind Ford and Panetti is that the history and tradition of the United States

prohibited execution of the insane. In other words, Ford is consistent with the

history, text, and structure of our Constitution, and would, therefore, continue

after a return to the original public meaning of the Eighth Amendment.

In his petition, Dorsey concedes that this Court’s long-standing

precedent holds that the Eighth Amendment prohibits punishments that are

disproportional to the offense. Pet. 20 (quoting Weems v. United States, 217

U.S. 349, 367 (1910)). The Court need not re-consider Weems because, as

Dorsey observes, proportionality and the “evolving standards of decency” are

two separate tests. Pet. 20 (quoting Kennedy, 554 U.S. at 441).

The Court should decline to grant certiorari review, as explained in point

I, supra, and point III, infra. But if the Court does grant certiorari review, then

the Court should reconsider the ahistorical, atextual, and anti-constitutional

“evolving standards of decency” framework that Dorsey relies upon.

III.

Dorsey’s execution does not offend the Eighth Amendment.

If this Court disregards the Supreme Court of Missouri’s holding that

“Dorsey’s claim . . . is a plea for clemency,” State ex rel. Dorsey, 2024WL

1194417 at *8, and reviews the claim on the merits, the Court must conclude

the claim is meritless. Dorsey offers no legal test to determine whether an

inmate is “rehabilitated” such that the Eighth Amendment precludes

punishment. Even under his own theory, Dorsey’s refusal to accept

responsibility shows that he is, in fact, not “rehabilitated.”

The Eighth Amendment does not prohibit the

execution of condemned murderers who have followed

prison rules after their crimes.

In his petition, Dorsey argues that the Eighth Amendment categorically

bars the execution of those who, in Dorsey’s opinion, have changed. Pet. at 20–

29. Dorsey has offered no guides or test to assess his claim. Id. There can be

none. Instead, Dorsey offers only that the Court should trust him and trust his

counsel when they say that he is categorically barred from execution by the

Eighth Amendment. Id. The Court should reject Dorsey’s unsupported claim.

Dorsey’s legal analysis in this Court turns on a recitation of examples

where this Court has applied the “evolving standards of decency” to carve out

“classes of people who cannot be executed. . . .” Pet. 21–22. Next Dorsey

identifies two theories of punishment (retribution and deterrence) and argues

that, in his opinion, neither theory of punishment justifies the execution of

Dorsey’s sentence. Pet. 22–24. But that argument fails.

As explained elsewhere, the “evolving standards of decency” is a phrase

in search of a definition. Moreover, despite his claims to the contrary, Dorsey’s

execution serves retribution and deterrence. Retribution recognizes the

community’s condemnation of the offense committed by the offender. See

Graham v. Florida, 560 U.S. 48, 71 (2010). Here, Dorsey murdered S.B. and

B.B. after they rescued him from drug dealers two days before Christmas. State

ex rel. Dorsey, 2024WL 1194417 at *1. Because he used an unloaded, singleshot shotgun, Dorsey was forced to load the gun, fire, unload the gun, reload

the gun, and fire again. Id. He raped S.B. and poured bleach on her body. Id.

He orphaned the victims’ four-year-old daughter. Id. He stole their personal

property. Id. 8 And Dorsey did all this despite the fact that his cousins were

trying to help him. Dorsey even stole the victims’ car because when Dorsey

killed the victims, B.B. was in the process of fixing Dorsey’s car without charge.

Id. at *1 n.3. Dorsey’s crime was morally outrageous, and the jury found seven

aggravating circumstances and sentenced him to death. Id. at *2. The death

penalty is not disproportional to two murders committed during the

commission of a rape and to facilitate the theft of personal property. 9

Dorsey also attempts to argue that his execution will not serve

deterrence because of the delay between his crime and his execution. See, e.g.,

Pet. 27. Although Dorsey cites to a collection of dissents and statements from

individual justices over the course of 40 years, he identifies no holding of the

Court to support his argument. There is none.

8 Dorsey attempts to justify his horrible crime by arguing that he only

committed the offense because he was suicidal while coming down from a crack

cocaine binge. Pet. 6–7. This argument is wrong. As this Court knows, there

was an epidemic of crack cocaine usage in this country. Sadly, many users went

on crack cocaine binges. Yet, there was no epidemic of users who committed

double murders and raped their victims. And on top of that, the Missouri

Supreme Court found Dorsey failed to prove even gateway innocence. Dorsey,

2024WL 1194417 at *5. In other words, the Missouri Supreme Court rejected

Dorsey’s argument that he was incapable of deliberation because of his use of

crack cocaine.

9 The jury found beyond a reasonable doubt that Dorsey murdered S.B.

while seeking sexual gratification, making his crime outrageously and

wantonly vile, horrible and inhuman. State v. Dorsey, 318 S.W.3d at 654.

Moreover, Dorsey should be judicially estopped from making this

argument. State court review of Dorsey’s convictions and sentences began in

2009 and ended in 2014. During state court review, Dorsey requested and

received 418 days of extensions—nearly fourteen months. Federal review of

Dorsey’s sentences began in 2015 and ended in 2023. During that time, Dorsey

requested and received 849 days of extensions and stays—more than two years

and three months. And Dorsey opposed Respondent’s motion to expedite the

case in the Eighth Circuit. Once the case returned to state court, Dorsey

requested and received another 94 days of extensions.

In total, Dorsey

requested and received 1,361 days of delay—more than three-and-a-half years.

Dorsey’s federal review took nearly ten years. Dorsey cannot be allowed to

cause delay upon delay and then come to this Court to argue that his sentences

must be set aside due to the passage of time.

The cases cited by Dorsey do not aid his argument. Dorsey cites Justice

White’s concurrence in Furman v. Georgia, 408 U.S. 238, 312 (1972) (White, J.,

concurring); as well as Ford; Panetti; Kennedy v. Louisiana, 554 U.S. 407, 420

(2008); Atkins v. Virginia, 536 U.S. 304, 311 (2002); Trop v. Dulles, 356 U.S.

86, 101 (1958) (plurality opinion); Coker v. Georgia, 433 U.S. 584, 592 (1977);

Enmund v. Florida, 458 U.S. 782, 789–93 (1982); and Roper v. Simmons, 543

U.S. 551 (2005).

None of these authorities aid Dorsey. He has not argued that, at the time

of the offense, he possessed a characteristic that gives rise to a categorical bar,

nor has he argued that his offense is disproportional to the death penalty.

Weems, 217 U.S. at 317 (the Eighth Amendment prohibits “all punishments

which by their excessive length or severity are greatly disproportioned to the

offenses charged.”).

What Dorsey is really arguing is that, in his opinion, his post-conviction

behavior while in prison means the death penalty cannot be imposed as a

categorical principle. According to Dorsey, this comes from the fact that he has

exhibited good behavior and the fact that he is allegedly well liked by the

Department of Correction’s staff.

Dorsey purports to craft a rule that overturns our well-established

system where a jury must find aggravating factors, consider whether there are

mitigating factors and, if so, whether the mitigating factors outweigh the

aggravating factors, and then consider whether mercy should be given. In place

of that system, Dorsey proposes that, in the days before an execution, this

Court should become a roving commission, searching high and low for evidence

about whether a defendant has “changed.” That sort of system imposes severe

costs on victims, litigants, and society. It also creates a result that would be

far less deserving of confidence than the results of an adversarial proceeding

before a judge and jury, close in time to the crimes. This Court should reject

Dorsey’s request.

Dorsey has refused to accept responsibility for his

offenses, and therefore is not within his self-described

“unique class of people” who may never be executed.

Even if Dorsey could convince the Court to create a new categorical bar

to punishment, he would not be entitled to relief. His argument that he has

been

“rehabilitated”

focuses

strongly

his

alleged

acceptance

responsibility. See, e.g., Pet. 10. But Dorsey has not accepted responsibility.

Dorsey has blamed murdering S.B. and B.B. on drugs and the possibility

that he was in psychosis. In his petition below, Dorsey did not even expressly

admit that he shot S.B. and B.B. Instead, Dorsey’s counsel wrote, “It was

during this time that S.B. and B.B. were shot.” Pet. at 11, State ex rel. Dorsey

v. Vandergriff, SC100486 (Mo.).

Nor has Dorsey accepted complete responsibility for the entirety of his

crimes. The jury found seven aggravating factors during the sentencing trial.

Dorsey, 30 F.4th at 755. One of those factors was that Dorsey murdered S.B.

while he was raping her. Dorsey, 318 S.W.3d at 654–55. The jury found that

fact beyond a reasonable doubt, and the Missouri Supreme Court affirmed that

finding on direct appeal. Id. at 655 (“The evidence showed that Dorsey used

deadly force to overcome [S.B.’s] resistance and then engaged in sexual

intercourse with her.”); see also Dorsey, 448 S.W.3d at 282 (“The jury also found

the murder of [S.B.] was committed while Mr. Dorsey was engaged in the crime

of rape.”). Similarly, the Missouri Supreme Court found that while committing

the murder of S.B., he sought sexual gratification, making his crime

outrageously and wantonly vile, horrible and inhuman. Id. at 654 (noting the

jury found beyond a reasonable doubt that Dorsey’s murder of S.B. was

“outrageously and wantonly vile, horrible and inhuman” and that the jury was

instructed they could only make that finding if they found “That the defendant,

while killing [S.B.] or immediately thereafter, had sexual intercourse with

her.”).

But Dorsey continues to deny responsibility for committing the rape. In

his petition to this Court, Dorsey states, “At the penalty phase, the State

presented evidence that Mr. Dorsey raped [S.B.] and poured bleach over her

torso, even though it did not charge him with any crime related to this.” Pet.

2. And just over a month ago, Dorsey called the State’s recitation of the jury’s

conclusion that Dorsey raped Sarah a “misstatement[]” designed to “distract

[the Missouri Supreme Court] . . . .” Reply in Supp. at 15, Dorsey v. Vandergriff,

SC100388, (Mo. Feb. 21, 2024). Dorsey’s argument ignores the evidence at trial

and the Missouri Supreme Court’s opinions, and it demonstrates his

unwillingness to accept responsibility for his “outrageous and wantonly vile,

horrible and inhuman” conduct. No matter how broad Dorsey’s definition of

“rehabilitation” is, it must include full acceptance of responsibility. On that

metric, Dorsey fails.

Dorsey’s argument that he has reformed is also not fully supported by

the evidence that he presented to the federal courts during federal habeas

review. On federal habeas review, the United States Court of Appeals for the

Eighth Circuit observed that, while some prison records were helpful to

Dorsey, others were not. Dorsey v. Vandergriff, 30 F.4th at 754. Specifically,

the Court highlighted prison information including the following quotes:

Dorsey “ ‘[h]ad difficulties with free time,’ was not ‘[d]ependable in

assignments,’ and was ‘[s]luggish.’ And another form indicated that Dorsey had

not ‘[e]xpressed need for self-improvement,’ had ‘[d]efied authority,’ had not

‘[a]ccepted responsibility for his situation,’ and was ‘[s]elf-centered.’ ” Id.

Simply put, Dorsey has not been “fully rehabilitated,” and if he cannot

even admit the full scope of his crimes, then he cannot credibly allege that he

is in a “unique class of people” that can never be executed.

Reasons to Deny Dorsey’s Request for a Stay

For many of the same reasons above, the Court should deny Dorsey’s

motion to stay his execution. A stay of execution is an equitable remedy that is

not available as a matter of right. Hill v. McDonough, 547 U.S. 573, 584 (2006).

Dorsey’s request for a stay must meet the standard required for all other stay

applications, including a showing of significant possibility of success on the

merits. Id. In considering Dorsey’s request, this Court must apply “a strong

equitable presumption against the grant of a stay where a claim could have

been brought at such a time as to allow consideration of the merits without

requiring entry of a stay.” Id. (citing Nelson v. Campbell, 541 U.S. 637, 650

(2004)). The “last-minute nature of an application” may be reason enough to

deny a stay. Id. Dorsey’s request fails on all four traditional stay factors.

Dorsey cannot meet any of the traditional factors required for stay of

execution. Dorsey has little possibility of success because, as discussed above,

Dorsey’s claims here do not warrant further review.

Dorsey will not be injured without a stay. Dorsey murdered the victims

nearly twenty years ago, and he has had ample time to seek review of his

convictions in state and federal court. Indeed, he has had two prior chances to

raise this claim on certiorari review. As this Court knows, “the long delays that

now typically occur between the time an offender is sentenced to death and his

execution are excessive.” Bucklew, 587 U.S. at 149. This Court’s role is to

ensure that Dorsey’s challenges to his sentence are decided “fairly and

expeditiously,” so he has no interest in further delay while the Court considers

his petition. Id. Dorsey’s decision to withhold his argument and then request a

“brief” stay casts no doubt on his guilt or the appropriateness of his sentence,

and he has no legitimate interest in delaying the lawful execution of his

sentence.

A stay would also irreparably harm both the State of Missouri and

Dorsey’s victims. This Court has repeatedly recognized the States’ important

interests in enforcing lawful criminal judgments without federal interference.

“The power to convict and punish criminals lies at the heart of the States’

‘residuary and inviolable sovereignty.’” Shinn, 596 U.S. at 376 (quoting The

Federalist No. 39, p. 245 (J. Madison) (Clinton Rossiter ed. 1961)). “Thus, [t]he

States possess primary authority for defining and enforcing the criminal

law and for adjudicating constitutional challenges to state convictions.” Id.

(quotations and citations omitted). Federal intervention “disturbs the State’s

significant interest in repose for concluded litigation” and it “undermines the

States’ investment in their criminal trials.” Id. (quotations and citations

omitted). “Only with real finality can the victims of crime move forward

knowing the moral judgment will be carried out.” Id. (quoting Calderon v.

Thompson, 523 U.S. 538, 556 (1998)). “To unsettle these expectations is to

inflict a profound injury to the powerful and legitimate interest in punishing

the guilty, an interest shared by the State and the victims of crime alike.” Id.

(quoting Calderon, 523 U.S. at 556).

Dorsey has exhausted his opportunities for federal review and his

convictions and sentences have been repeatedly upheld. There is no basis to

delay justice. The surviving victims of Dorsey’s crimes have waited long enough

for justice, and every day longer that they must wait is a day they are denied

the chance to finally make peace with their loss. Resp. Pet. at A14–A29. The

parents of B.B. have explained under oath “the murders have had a terrible

impact on us and our family” (id. at A14), that “We are certain that we cannot

obtain closure until Brian Dorsey’s sentence is carried out” (id.), and that “Any

further delay would devastate us. Every court proceeding brings the pain of

losing our son back. We want this part of our journey to end. It has been a long

journey. We want justice to be done in this case” (id. at A15). Meanwhile,

family members of S.B. have explained under oath that “As a result of the

murders, my family and I have lived a nightmare every day for 17 years” (id.

at A16), and that “If the execution is delayed, I will not be able to find justice

and will be forced to continue to live this nightmare” (id. at A17). The victims’

orphaned daughter, also under oath, said, “Because I was too young before,

this is my first chance to participate in court proceedings. I wish to tell all

courts: Please do not delay the execution.” Id. at A23.

A stay would impose terrible suffering on the surviving victims. This

Court should deny Dorsey’s stay application.

Conclusion

This Court should deny the petition for writ of certiorari and the

application for a stay of execution.

Respectfully submitted,

ANDREW BAILEY

Attorney General

/s/ Gregory M. Goodwin

GREGORY M. GOODWIN