Emergency Application — David Santiago Renteria, Applicant v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, et al.

No. _______ (CAPITAL CASE)

IN THE SUPREME COURT OF THE UNITED STATES

_________________________________

DAVID S. RENTERIA

v.

Petitioner,

THE STATE OF TEXAS

Respondent.

_________________________________

On Petition for a Writ of Certiorari to the United States

Court of Appeals For the Fifth Circuit

_________________________________

EMERGENCY APPLICATION FOR STAY OF EXECUTION

PENDING DISPOSITION OF PETITION

FOR WRIT OF CERTIORARI

**Execution scheduled for

Thursday, November 16, 2023, at 6 p.m.**

_________________________________

MICHAEL WISEMAN

Maureen Franco

WISEMAN & SCHWARTZ, LLP

Federal Public Defender

718 Arch Street, Suite 702 North

Western District of Texas

Philadelphia, PA 19106

*Tivon Schardl

215-450-0903

Chief, Capital Habeas Unit

wiseman@wisemanschwartz.com

SBOT #24127495

*counsel of record

919 Congress Ave., Suite 950

Austin, Texas 78701

737-207-3008

tivon_schardl@fd.org

APPLICATION FOR STAY OF EXECUTION PENDING

DISPOSITION OF PETITION FOR WRIT OF CERTIORARI

To the Honorable Samuel Alito, Associate Justice, and Circuit Justice for the United States Court of Appeals for the Fifth Circuit:

INTRODUCTION

David Renteria is due to be executed by Texas in about 24 hours—

despite the fact that no court has reviewed his meritorious claim that his

federal right to equal protection of the law was violated when the prosecution refused to allow him to review its trial file, although it had allowed

similarly situated capital prisoners facing execution to do so.

Texas law gives convicting courts discretion in deciding when to order execution of a capital judgment. In May 2023, Texas prosecutors

chose to seek an execution date for Mr. Renteria and not to seek one for

a similarly situated defendant who had been on death row longer, had

more post-conviction review, and sought to litigate the same claim as Mr.

Renteria.

Mr. Renteria asked the trial court to give him a hearing on the

State’s motion—the same type of hearing another trial court in El Paso

County held for the other defendant when the State sought an execution

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date for him in 2020. The trial court denied Mr. Renteria a hearing and

rubber-stamped the State’s proposed execution order.

Then the State moved to vacate the order. Twenty-four hours after

the court granted that request, the State moved to reset the execution.

Again, the court rubber-stamped the State’s proposed order.

Mr. Renteria moved for reconsideration. He argued the State’s disparate treatment of him, including its refusal to let him inspect the prosecution’s files after it gave the same opportunity to the other defendant.

The convicting court agree that he had been denied equal protection of

the laws, and that the prosecution’s delays prejudiced him. The court

therefore vacated the execution order and withdrew the warrant.

The Texas Court of Criminal Appeals (TCCA) granted the State’s

mandamus petition from this ruling, reversing the vacation of the execution date and the discovery order. In doing so, the TCCA essentially declared that for prisoners in Mr. Renteria’s shoes, the convicting court is

a constitution-free zone. In the Court’s words, there is “no freewheeling

jurisdiction to seek to safeguard Renteria’s Fourteenth Amendment

rights,” including his rights under the Equal Protection Clause. Adding

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insult to injury, the Court failed to abide its own rules and granted mandamus without calling for a responsive pleading from Mr. Renteria.

Faced with the deprivation of his constitutional right to equal protection of the law and the inability to vindicate this right in state court,

Mr. Renteria filed a notice of removal in the appropriate federal district

court. That court granted a hearing on removal petition, but then reversed itself and remanded the matter to state court. Mr. Renteria unsuccessfully appealed this decision to the Court of Appeals for the Fifth

Circuit. He is preparing to file with this Court a Petition for Certiorari.

Mr. Renteria respectfully requests a stay of his execution, currently

scheduled for tomorrow, November 16, 2023, at 6.p.m. Central Standard

Time, pending its disposition of his petition for writ of certiorari. As set

out below, this case satisfies each consideration relevant to that determination.

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MR. RENTERIA IS ENTITLED TO A STAY

The standard for granting a stay of execution is well-established.

This Court will consider the prisoner’s likelihood of success on the merits,

the relative harm to the parties, and the extent to which the prisoner has

unnecessarily delayed his or her claims. Hill v. McDonough, 547 U.S. 573,

584 (2006); Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). There must

be “a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari” and “a significant possibility of reversal of the lower court’s decision,” in addition to irreparable harm. Barefoot v. Estelle, 463 U.S. 880,

895 (1983) (citation omitted). These factors weigh in favor of staying Mr.

Renteria’s execution pending this Court’s review of the issues raised in

his petition for certiorari.

I.

A reasonable probability exists that the Court will grant certiorari because Mr. Renteria has presented significant issues on which he is likely to prevail in this Court.

There is a reasonable probability that this Court will grant certio-

rari in this case because the Fifth Circuit’s decision turned on this Court’s

construction of an important federal law that was based on legislative

history, not the text of the law or its original public meaning. The Fifth

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Circuit also decided an important question of federal law that has not

been, but should be, settled by this Court. Supreme Court Rule 10(c).

The court of appeals made two significant errors in interpreting

the removal statute, 28 U.S.C. §§ 1443(1) and 1455(b)(1). First, the court

categorically ruled that removal is purely a pretrial right and therefore

cannot apply to a post-conviction case. It mustered only non-precedential

circuit decisions in cases that involved post-conviction review proceedings in state court, or that were completely closed and the judgment executed, to support this novel reading of § 1455. That it could identify no

controlling precedent is not surprising, as the wording of the statute

places no such limits on the timing of removal. Indeed, it provides that

removal notices may, for good cause, be filed after “at any time before

trial,” without limitation. 28 U.S.C. § 1455(b)(1).

Second, the court of appeals held that, under 28 U.S.C. § 1433(1),

removal is available only when the deprivation of civil rights is motivated

by racial animus. Again, the text of the statute contains no such limits.

However, this Court in State of Georgia v Rachel, 384 U.S. 780 (1966),

relied upon the legislative history of the model for the current law—not

even the legislative history of the current law—to conclude “that the

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phrase ‘any law providing for … equal civil rights’ must be construed to

mean any law providing for specific civil rights stated in terms of racial

equality.” Id. at 792. The Fifth Circuit reasoned that because the Equal

Protection of the Laws Clause of the Fourteenth Amendment includes no

formal “terms of racial equality” it is not such a law.

This Court in Rachel did not consider at all the original public

meaning of the removal law. Or any public meaning of that law. The

Court’s exclusive focus on Congress’s intent based on legislative history

cannot be reconciled with Article III and this Court’s recent cases circumscribing the role of federal courts when interpreting federal laws. E.g.,

Bostock v. Clayton County, Georgia, 590 U.S. ___, 140 S. Ct. 1731, 1738

(2020). Rachel is a particularly egregious example of how the courts can

radically change the public meaning of a law enacted so that it is narrowed to the point where it no longer provides the public the protection

they needed.

As Justice Thomas recently recounted, this Court has consistently

held since The Slaughter-House Cases, 83 U.S. 36 (1873), that although

the “‘prevailing purpose’” of Equal Protection Clause was “‘the freedom of

the slave race, the security and firm establishment of that freedom, and

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the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him,’”

“the Fourteenth Amendment’s equality guarantee applied to members of

all races.” Students for Fair Admissions, Inc. v. President and Fellows of

Harvard College, 600 U.S. 181, 244-245 (2023) (quoting Slaughter-House

at 67-72). As Justice Thomas said there, under the

most commonly held view today … the [Fourteenth] Amendment

was designed to remove any doubts regarding Congress’ authority

to enact the Civil Rights Act of 1866 and to establish a nondiscrimination rule that could not be repealed by future Congresses.

Id. at 241. It is entirely inconsistent with that understanding to deem the

Equal Protection Clause anything other than a “law providing for the

equal civil rights of citizens.” 28 U.S.C. § 1443(1).

Mr. Renteria has a strong likelihood of relief on these issues. A “reasonable probability” of prevailing is usually understood as describing a

likelihood lower than “more likely than not[.]” Smith v. Cain, 565 U.S.

73, 75 (2012) (discussing “reasonable probability” of a different outcome

in the context of Brady materiality). Thus, to be entitled to a stay of execution until the Court can review his petition in due course, Mr. Renteria

need not demonstrate a high likelihood that the Court will decide to hear

his case, but only a reasonably good chance of that outcome. Mr. Renteria

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satisfies that standard, because the court of appeals’ decision is contrary

to the plain language of §§ 1443(1) and 1455.

As for the timing of the notice, that provision plainly provides that

removal is available, on a showing of good cause, after trial has commenced or ended. In Mr. Renteria’s case, his right to removal was triggered by the September 18, 2023, announcement by the TCCA that it

could not vindicate his federal constitutional rights. Nothing in § 1455

prevented him from then removing his claim to federal court.

As for the basis of Mr. Renteria’s meritorious equal-protection

claim, the plain language of §1433(1) does not support the court of appeals’ holding that the statute provides for removal of claims under “any

law providing for the equal rights of citizens of the United States” only

when the claims involve racial discrimination. The statute does not say

so; nor does any precedent from this Court.

Because the court of appeals’ ruling is contrary to the plain language of the statutes it interprets, this Court is likely to grant certiorari

and hold that Mr. Renteria is entitled to relief.

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II.

Mr. Renteria will suffer irreparable harm absent a stay.

Irreparable harm is indisputably present when a stay of execution

is sought. As this Court has explained, “death is different”—“execution is

the most irremediable and unfathomable of penalties.” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (plurality op.); see also Wainwright v.

Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring) (“The third

requirement—that irreparable harm will result if a stay is not granted—

is necessarily present in capital cases.”).

In this capital case, Mr. Renteria’s irreparable injury would be a byproduct of the State’s unconstitutional behavior. Without interference

from this Court, “prosecutors can run out the clock and escape any responsibility for all but the most extreme violations.” Bernard v. United

States, 141 S. Ct. 504, 507 (2020) (Sotomayor, J., dissenting from denial

of certiorari). That is the danger Mr. Renteria faces here. This Court

should not allow him to be executed without affording him the opportunity to have his removal claim meaningfully heard.

In weighing the equities, the State’s undoubted interest in carrying

out the sentence must yield to the public interest in seeing that a condemned man is not put to death as a result of proceedings tainted by a

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constitutional violation. There is an “overwhelming public interest” in

“preventing unconstitutional executions.” Bronshtein v. Horn, 404 F.3d

700, 708 (3d Cir. 2005) (citation omitted). A stay of execution, in fact, will

serve the strong public interest—an interest the State of Texas shares—

in administering capital punishment in a manner consistent with the

Constitution.

III. Mr. Renteria has not delayed in seeking a stay.

Mr. Renteria’s petition is not a “last-minute attempt[ ] to manipulate the judicial process.” Nelson v. Campbell, 541 U.S. 637, 649 (2004)

(quotation marks and citation omitted). As shown in the Petition for Certiorari, he has moved with dispatch and has certainly not engaged in any

delay.

His claim for removal did not come into being until September 18,

2023, when the TCCA declared that Mr. Renteria could not vindicate his

rights to equal protection. Mr. Renteria sought reconsideration of that

decision, and, 22 days after being denied reconsideration, on October 18,

2023, he filed his Notice of Removal. After that was denied on October

23, 2023, he promptly sought reconsideration. The district court did not

deny reconsideration until October 31, 2023, at which point Mr. Renteria

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began to expeditiously prepare his opening brief for the Fifth Circuit

Court of Appeals, which he filed the following week. The Fifth Circuit

denied relief only yesterday, on November 14, 2023. Mr. Renteria has not

delayed in seeking redress for the violation of his right to equal protection.

CONCLUSION

For these reasons, this Court should enter an order staying Mr.

Renteria’s execution pending resolution of the issues raised in his petition for writ of certiorari.

Respectfully submitted,

Maureen Franco

Federal Public Defender

Western District of Texas

/s/ Tivon Schardl

Tivon Schardl

919 Congress Ave., Suite 950

Austin, Texas 78701

MICHAEL WISEMAN

WISEMAN & SCHWARTZ, LLP

718 Arch Street, Suite 702 North

Philadelphia, PA 19106

215-450-0903

wiseman@wisemanschwartz.com

November 16, 2023

Counsel for Petitioner

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