Petition for Writ of Certiorari — Stacey Ian Humphreys, Petitioner v. Georgia Board of Pardons and Paroles, et al.

No. ______

In the Supreme Court of the United States

STACEY IAN HUMPHREYS,

PETITIONER,

v.

GEORGIA BOARD OF PARDONS AND PAROLES, ET AL,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

PETITION FOR A WRIT OF CERTIORARI

Jessica G. Cino

Zahra S. Karinshak

Rahul Garabadu

Krevolin & Horst, LLC

1201 West Peachtree St NW

Atlanta, GA 30309

Mary E. Wells

Nathan Potek

Federal Defender Program Inc.

101 Marietta Street NW, Suite 1500

Atlanta, GA 30303

*Zack Greenamyre

Mitchell, Shapiro,

Greenamyre & Funt, LLP

881 Piedmont Ave NE

Atlanta, GA 30309

T: 404-812-4747

zack@mitchellshapiro.com

*Counsel of record

Attorneys for Petitioner

ii

QUESTION PRESENTED

On the same day that Stacey Ian Humphreys’s death

warrant was signed, the Governor appointed Kimberly

McCoy to the vacant fifth seat on the Georgia Board of

Pardons and Paroles (“the Board”). The Board is the only

Georgia entity empowered to grant executive clemency.

Ms. McCoy had just completed a 25-year career as Director

of the Victim-Witness Unit for the Cobb County District

Attorney’s office, the very office that obtained Mr.

Humphreys’s death sentence. In that role, she advocated

for the family members of the victims in his case and

formed a “close bond” with them.

A Georgia Superior Court ruled that Ms. McCoy labored

under a conflict of interest and ordered that she recuse

herself from the clemency proceedings. While the lower

court’s order acknowledged that a favorable vote from at

least three Board members was required for a deathsentenced applicant to obtain a commutation, it also held—

contrary to the unbroken historical practice in Georgia and

the Board’s own understanding—that the Board could

consider Mr. Humphreys’s application with only four

members. Every other Georgia capital prisoner has had the

opportunity to convince three of five Board members to

extend mercy. Mr. Humphreys must convince three of four.

The questions presented are: When the state departs

from its own long-standing practice and procedures and

arbitrarily burdens a capital clemency applicant’s

likelihood of success in obtaining a commutation, does it (1)

deprive him of due process and (2) violate the Equal

Protection Clause?

iii

PARTIES TO THE PROCEEDINGS

Stacey Ian Humphreys is the Petitioner here and was

the Petitioner-Appellant below.

The Georgia State Board of Pardons and Paroles;

Joyette Holmes, Wayne V. Bennett, David J. Herring,

Robert Markley, and Kimberly McCoy, in their official

capacity as members of the State Board of Pardons and

Paroles; Tyrone Oliver, in his official capacity as

Commissioner of the Georgia Department of Corrections;

and Brian Kemp in his official capacity as Governor of the

State of Georgia, are the Respondents here and were the

Respondents-Appellees below.

iv

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

Superior Court of Glynn County, Georgia:

The State of Georgia v. Stacey Ian Humphreys, No. 049-0673-05 (Sept. 30, 2007)

Superior Court of Cobb County, Georgia:

The State of Georgia v. Stacey Ian Humphreys, No. 049-0673-05 (Jan. 19, 2009)

Superior Court of Butts County, Georgia:

Stacey Ian Humphreys v. Bruce Chatman, Warden, Ga.

Diagnostic and Classification Prison, No. 2011-V-160

(Mar. 10, 2016)

Superior Court of Fulton County:

Stacey Ian Humphreys v. State Bd. of Pardons and

Paroles, Joyette Holmes, Chair, Wayne V. Bennett,

David J. Herring, Robert Markley, Kimberly McCoy,

Members; Tyrone Oliver, Comm’r, Ga. Dep’t of Corr.;

and Brian P. Kemp, Governor, No. 25-CV-017069

(Mar. 3, 2026)

Supreme Court of Georgia:

Humphreys v. The State, No. S09P1428 (Mar. 15,

2010)

v

Stacey Ian Humphreys v. Bruce Chatman, Warden, No.

S16E1799 (Aug. 28, 2017)

Stacey Ian Humphreys v. State Bd. of Pardons and

Paroles, et al., No. S26D1147 (Apr. 29, 2026)

United States District Court for the Northern District of

Georgia:

Stacey Ian Humphreys v. Eric Sellers, No. 1:18-cv02534-LMM (Sept. 16, 2020)

United States Court of Appeals for the Eleventh Circuit:

Stacey Ian Humphreys v. Warden, Ga. Diagnostic

Prison, No. 21-10387 (June 11, 2024)

Supreme Court of the United States:

Stacey Ian Humphreys v. Georgia, No. 10-6322 (Nov.

15, 2010)

Stacey Ian Humphreys v. Eric Sellers, No. 17-7306

(Apr. 16, 2018)

vi

TABLE OF CONTENTS

QUESTION PRESENTED................................................. ii

PARTIES TO THE PROCEEDINGS ................................ iii

STATEMENT OF RELATED PROCEEDINGS................ iv

TABLE OF CONTENTS .................................................... vi

TABLE OF AUTHORITIES ............................................... ix

PETITION FOR A WRIT OF CERTIORARI ..................... 1

OPINION AND ORDERS BELOW .................................... 1

JURISDICTION .................................................................. 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............................................ 2

STATEMENT OF THE CASE ............................................ 3

A. Stacey Humphreys’s Death Sentence. ................ 4

B. Georgia’s Executive Clemency Procedure. ......... 5

C. Mr. Humphreys’s Efforts to Obtain a

Hearing Before a Board Free of Conflicts

of Interest. ........................................................... 6

D. The Rulings Below. ............................................. 8

1. The Superior Court of Fulton County ........... 8

2. The Supreme Court of Georgia.................... 10

REASONS FOR GRANTING THE PETITION ............... 11

A. This Court Should Grant Certiorari to

Define The Right to Due Process in

Clemency. .......................................................... 12

1. The lower courts generally agree that

Due Process requires, at a minimum,

vii

that a State follow its own established

clemency procedures. ................................... 13

2. The lower courts have struggled to

define the contours of Woodard’s

“minimal” due process requirement. ........... 15

3. This Court should revisit Woodard’s

core holding. ................................................. 17

B. The Court Should Confirm That The Right

to Equal Protection Attaches In Capital

Clemency Proceedings. ...................................... 23

1. This Court’s precedents establish a

right to equal protection. ............................. 24

2. This case is an excellent vehicle to

settle the question. ....................................... 27

CONCLUSION .................................................................. 31

viii

APPENDICES

APPENDIX A

Order of the Supreme Court of Georgia denying

Petition for Rehearing (May 19, 2026) ...................... A1

APPENDIX B

Order of the Supreme Court of Georgia denying Mr.

Humphreys’s Application for Discretionary

Review (April 29, 2026) .............................................. B1

APPENDIX C

Order of the Superior Court of Fulton County

granting in part and denying in part Mr.

Humphreys’s Petition for Writ of Mandamus

(March 2, 2026) .......................................................... C1

APPENDIX D

Order of the Superior Court of Fulton County

granting temporary injunctive relief

(December 29, 2025) ................................................... D1

APPENDIX E

Transcript, hearing on petition for writ of

mandamus before the Superior Court of Fulton

County, with exhibits (December 15, 2025) .............. E1

APPENDIX F

Opinion in Humphreys v. Emmons, 607 U.S. __

(2025) (Sotomayor, J., dissenting from the

denial of certiorari) (October 14, 2025) ...................... F1

APPENDIX G

Opinion in Humphreys v. Warden, Ga. Diagnostic

Prison, No. 21-10387, 2024 WL 2945070 (11th

Cir. 2024) (unpublished) (June 11, 2024) .................. G1

ix

TABLE OF AUTHORITIES

Cases

Allen v. Hickman,

407 F. Supp. 2d 1098 (N.D. Cal. 2005).......................... 14

Bacon v. Lee,

549 S.E.2d 840 (N.C. 2001) ........................................... 14

Baze v. Thompson,

302 S.W.3d 57 (Ky. 2010) .............................................. 14

Bush v. Gore,

531 U.S. 98 (2000).......................................................... 28

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985)........................................................ 29

Creech v. Idaho Comm’n of Pardons and Parole,

94 F.4th 851 (9th Cir. 2024) .................................... 12, 16

Duvall v. Keating,

162 F.3d 1058 (10th Cir. 1998)...................................... 14

Evitts v. Lucey,

469 U.S. 387 (1985).................................................. 17, 25

F.S. Royster Guano Co. v. Commonwealth of

Virginia,

253 U.S. 412 (1920)........................................................ 23

Ford v. Wainwright,

477 U.S. 399 (1986).................................................. 18, 23

Gissendaner v. Comm’r, Ga. Dep’t of Corr.,

794 F.3d 1327 (11th Cir. 2015)...................................... 16

Godfrey v. Georgia,

446 U.S. 420 (1980)........................................................ 22

Goldberg v. Kelly,

397 U.S. 254 (1970)........................................................ 24

Griffin v. Illinois,

351 U.S. 12 (1956).................................................... 17, 25

x

Hall v. Barr,

830 Fed. Appx. 8 (D.C.Cir. 2020) .................................. 15

Harbison v. Bell,

556 U.S. 180 (2009)............................................ 18, 20, 21

Harper v. Va. State Bd. of Elections,

383 U.S. 663 (1966)........................................................ 28

Harrington v. Richter,

562 U.S. 86 (2011).......................................................... 20

Herrera v. Collins,

506 U.S. 390 (1993)........................................................ 18

Humphreys v. Chatman,

No. S16E1799 (Ga. August 28, 2017) .............................. 4

Humphreys v. Emmons,

607 U.S. __, 146 S. Ct. 28 (2025) ......................... 4, 21, 22

Humphreys v. State,

694 S.E.2d 316 (Ga. 2010) ............................................... 4

Humphreys v. Warden, Ga. Diagnostic Prison,

2024 WL 2945070 (11th Cir. 2024) ..................... 4, 21, 22

Lee v. Hutchinson,

854 F.3d 978 (8th Cir. 2017).......................................... 16

Margolin v. Nat’l Assoc. of Immigr. Judges,

146 S. Ct. 1285 (2026).................................................... 10

Mays v. Hines,

592 U.S. 385 (2021)........................................................ 20

McCarthy v. Hernandez,

146 S. Ct. 1873 (June 22, 2026)..................................... 20

McLendon v. Everett,

55 S.E.2d 119 (Ga. 1949) ................................................. 3

Morrissey v. Brewer,

408 U.S. 471 (1972)........................................................ 24

Noel v. Norris,

336 F.3d 648 (8th Cir. 2003).......................................... 14

Nordlinger v. Hahn,

505 U.S. 1 (1992)............................................................ 24

xi

Obergefell v. Hodges,

576 US. 644 (2015)......................................................... 28

Ohio Adult Parole Authority v. Woodard,

523 U.S. 272 (1998)............................... 10–18, 21, 23, 27

Olevik v. State,

806 S.E.2d 505 (2015) .................................................... 26

Pizzuto v. Valley,

177 F.4d 1042 (9th Cir. 2026)........................................ 17

Plyler v. Doe,

457 U.S. 202 (1982)........................................................ 28

Romer v. Evans,

517 U.S. 620 (1996).................................................. 28, 29

Skinner v. State of Okl. ex rel. Williamson,

316 U.S. 535 (1942).................................................. 24, 29

Stanley v. Illinois,

405 U.S. 645 (1972)........................................................ 29

Sweatt v. Painter,

339 U.S. 629 (1950)........................................................ 30

United States v. Hutchins,

72 M.J. 294 (C.A.A.F. 2013) .......................................... 14

United States v. Macdaniel,

32 U.S. 1 (1833).............................................................. 27

United States v. Sineneng-Smith,

590 U.S. 371 (2020)........................................................ 10

Washington v. Glucksberg,

521 U.S. 702 (1997)........................................................ 28

Woodard v. Ohio Adult Parole Auth.,

107 F.3d 1178 (6th Cir 1997) (reversed) ....................... 18

Workman v. Summers,

111 Fed.Appx. 369 (6th Cir. 2004) ................................ 16

Yick Wo v. Hopkins,

118 U.S. 356 (1886).................................................. 24, 27

Young v. Hayes,

218 F.3d 850 (8th Cir. 2000).......................................... 16

xii

Constitutional Provisions

U.S. Const. amend. XIV .............................. 2, 10–18, 22–30

Georgia Consitutional Provisions

Ga. Const. Art. IV, § II .......................................... 2, 3, 5, 26

Statutes, Rules, and Regulations

Antiterrorism and Effective Death Penalty Act............... 20

28 U.S.C. § 1257 .................................................................. 1

Fed. R. Evid. 606 ........................................................... 4, 22

O.C.G.A. § 17-10-31 ............................................................. 5

O.C.G.A. § 17-10-31.1 ........................................................ 22

O.C.G.A. § 24-6-606 ....................................................... 4, 22

O.C.G.A. §§ 42-9-1 et seq. .............................................. 3, 26

O.C.G.A. § 42-9-2 ................................................................. 3

O.C.G.A. § 42-9-9 ................................................................. 9

O.C.G.A. § 42-9-12 ............................................................. 26

O.C.G.A. § 42-9-20 ........................................................... 3, 5

O.C.G.A. § 42-12-1 ............................................................. 10

O.C.G.A. § 42-12-8 ............................................................. 10

Supreme Court Rule 13.1 .................................................... 1

Supreme Court Rule 13.3 .................................................... 1

Other Authorities

Jonathan Atkins, Danielle B. Rosenthal, and

Joshua D. Weiss, The Inequities of Equitable

Tolling: A Misapplication of Agency Law, 68

Stan. L. Rev. 427 (2016) ................................................ 19

Joan M. Fisher, Expedited Review of Capital PostConviction Claims: Idaho’s Flawed Process, 2 J.

App. Prac. & Process 85 (2000) ..................................... 19

xiii

Pamela R. Goodwine, Fighting Death: A Critique of

Kentucky’s Death Penalty System, 112 Ky. L.J.

511 (2023) ....................................................................... 19

Alexander Hanna, Post-Conviction Channeling, 112

Va. L. Rev. 815 (2026).................................................... 19

Charles Eric Hintz, The Plain Solution to Federal

Habeas, 2026 Utah L. Rev. 261 (2026) ......................... 19

Andrea Keilen and Maurie Levin, Moving Forward:

A Map for Meaningful Habeas Reform in Texas

Capital Cases, 34 Am. J. Crim. L. 207 (2008)............... 20

Margery Malkin Koosed, Abolition of the Ohio

Death Penalty?--Not for Lack of Trying, 17 Ohio

St. J. Crim. L. 27, 61–74 (2019) .................................... 19

Eve Brensike Primus, A Structural Vision of

Habeas Corpus, 98 Calif. L. Rev. 1 (2010) .................... 19

William Redick, Is Tennessee Going to Fix its Death

Penalty?, 45 Bar. J. 12 (2009)........................................ 20

Carol S. Steiker and Jordan M. Steiker, A Tale of

Two Nations: Implementation of the Death

Penalty in “Execution” Versus “Symbolic” States

in the United States, 84 Tex. L. Rev. 1869, 1876–

1901 (2006) ..................................................................... 19

Jordan Steiker, Jim Marcus, and Thea Posel, The

Problem of “Rubber-Stamping” in State Capital

Habeas Proceedings: A Harris County Case

Study, 55 Hous. L. Rev. 889 (2018) ............................... 19

1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Stacey Ian Humphreys respectfully petitions

this Court for a writ of certiorari to review the order of the

Supreme Court of Georgia denying his application for

discretionary appeal from the final order of the Superior

Court of Fulton County, Georgia.

OPINION AND ORDERS BELOW

The decision of the Superior Court of Fulton County,

entered on March 2, 2026 granting in part and denying in

part Mr. Humphreys’s petition for a writ of mandamus in

Humphreys v. State Bd. of Pardons and Paroles, et. al., is

reproduced in the appendix at Pet. App. C. The December

29, 2025 order of the Superior Court of Fulton County

granting temporary injunctive relief during the pendency

of those proceedings is reproduced at Pet. App. D. The

order of the Supreme Court of Georgia denying Mr.

Humphreys’s application for discretionary appeal is

reproduced at Pet. App. B. The order of Supreme Court of

Georgia denying Mr. Humphreys’s petition for rehearing of

that decision is reproduced at Pet. App. A.

JURISDICTION

On April 29, 2026, the Supreme Court of Georgia

entered an order denying Mr. Humphreys’s application for

discretionary appeal. A timely filed petition for rehearing

was denied on May 19, 2026. The deadline to file this

petition is August 17, 2026. Therefore this petition is

timely. See Supreme Court Rules 13.1 and 13.3. This Court

has jurisdiction pursuant to 28 U.S.C. § 1257(a).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the United States

Constitution states in part:

“Nor shall any state deprive any person of life,

liberty, or property without due process of

law; nor deny to any person within its

jurisdiction the equal protection of the laws.”

U.S. Const. amend. XIV.

Article Four of the Georgia Constitution of 1983 states:

Paragraph I. State Board of Pardons and

Paroles. There shall be a State Board of

Pardons and Paroles which shall consist of

five members appointed by the Governor,

subject to confirmation by the Senate. …

Paragraph II. (a) Except as otherwise

provided in this Paragraph, the State Board

of Pardons and Paroles shall be vested with

the power of executive clemency, including

the powers to grant reprieves, pardons, and

paroles; …

(d) the chairman of the board, or any other

member designated by the board, may

suspend the execution of a sentence of death

until the full board shall have an opportunity

to hear the application of the convicted person

for any relief within the power of the board.

Ga. Const. Art. IV, § II ¶ I and II.

3

Title 42 of the Georgia code states as follows:

Pursuant to Article IV, Section II, Paragraph

I of the Georgia Constitution, there shall be a

State Board of Pardons and Paroles, which

shall consist of five members appointed by the

Governor, subject to confirmation by the

Senate.

O.C.G.A. § 42-9-2.

… The board by an affirmative vote of a

majority of its members shall have the power

to commute a sentence of death to one of life

imprisonment.

O.C.G.A. § 42-9-20(a).

STATEMENT OF THE CASE

Death-sentenced prisoners in Georgia have a

constitutional and statutory right to seek executive

clemency from the Georgia Board of Pardons and Paroles

(“the Board”). Ga. Const. Art. IV, § II; O.C.G.A. §§ 42-9-1 et

seq.; McLendon v. Everett, 55 S.E.2d 119 (Ga. 1949). To

obtain commutation of a death sentence to one of life

imprisonment, a prisoner must secure a majority vote of

the Board: three sitting members must vote to commute.

O.C.G.A. § 42-9-20(a). In the modern death penalty era, no

condemned prisoner has had his or her application for

clemency decided by fewer than all five Board members.

The Georgia courts have cleared the way for Stacey

Humphreys to be the first.

4

A. Stacey Humphreys’s Death Sentence.

In 2007, Mr. Humphreys was sentenced to death for the

robbery and murders of Lori Brown and Cynthia Williams

at the Cobb County model home where they worked as real

estate agents. The Supreme Court of Georgia upheld the

jury’s verdict on direct appeal. Humphreys v. State, 694

S.E.2d 316 (Ga. 2010).

Mr. Humphreys’s subsequent state and federal

postconviction challenges centered on, inter alia, the fact

that eleven jurors were coerced into relinquishing their

votes for a life without parole sentence as a result of

egregious misconduct by a fellow juror. But each of the

appeals failed as a result of the juror no-impeachment rule,

O.C.G.A. § 24-6-606(b), Fed. R. Evid. 606(b), which barred

the courts from weighing the jurors’ testimony. Humphreys

v. Chatman, No. S16E1799 (Ga. August 28, 2017)

(unpublished); Humphreys v. Warden, Ga. Diagnostic

Prison, No. 21-10387, 2024 WL 2945070, at *13–16 (11th

Cir. 2024) (unpublished). Pet. App. G34–G42. As three

members of this Court observed last term, Mr.

Humphreys’s case “illustrates an[] ‘extreme’ situation in

which the no-impeachment rule likely should have yielded

because the juror’s extreme misconduct threatened

Humphreys’s Sixth Amendment right to an impartial

jury.” Humphreys v. Emmons, 146 S. Ct. 28, 30 (2025)

(Sotomayor, J., dissenting from denial of certiorari). Pet.

App. F4. Executive clemency, where the jurors’ testimonies

can be heard, now stands as Mr. Humphreys’s last

opportunity to vindicate his jury trial rights.

On December 1, 2025, Cobb County District Attorney

Sonya Allen obtained a warrant for Mr. Humphreys’s

execution. Pet. App. E181. The Department of Corrections

5

scheduled the execution for December 17, 2025. Pet. App.

E208. On December 11, Mr. Humphreys filed an application for executive clemency with the Board. The

centerpieces of the application were (1) Mr. Humphreys’s

profound remorse and (2) that a life imprisonment sentence

would be consistent with the wishes and views of the eleven

unbiased jurors who voted for life without parole, and with

the intention of Georgia’s capital sentencing statute. 1

B. Georgia’s Executive Clemency Procedure.

The Georgia Constitution establishes a Board of

Pardons and Paroles “consisting of five members.” Ga.

Const. Art. IV, § II ¶ I. The Board holds the exclusive

authority to grant clemency to a death-sentenced Georgia

prisoner. Id. at ¶ II(a).

When an execution warrant issues, the Board, through

its counsel, notifies the prisoner of the deadline for filing of

his clemency application and the date and time that the

Board has set aside to hear from counsel and witnesses in

support of the application. The Board similarly—but

separately—hears from those opposed to clemency.

Following these closed-door presentations, the Board

meets in an executive session with an “opportunity to

deliberate collectively” before individually casting

confidential ballots. Pet. App. E-146. By law, at least three

of the five Board members must vote for clemency for an

applicant to obtain a commutation. O.C.G.A. § 42-9-20(a).

1 But for the coercive misconduct, his jurors’ non-unanimity would have

resulted in a life sentence under Georgia law. O.C.G.A. § 17-10-31(c).

6

C. Mr. Humphreys’s Efforts to Obtain a Hearing

Before a Board Free of Conflicts of Interest.

The same day that the Cobb County District Attorney

obtained the warrant for Mr. Humphreys’s execution,

Governor Brian Kemp appointed Kimberly McCoy to fill a

vacant fifth seat on the Board. Pet. App. E184. From 1999

to 2024, Ms. McCoy served as the Director of the Cobb

County District Attorney’s Victim-Witness Unit. In that

role, she personally advocated for the needs of victims and

witnesses in all cases involving the death penalty,

including Mr. Humphreys’s. Pet. App. E193–E194.

When the venue for Mr. Humphreys’s trial was moved

from Cobb County to Glynn County in September 2007, Ms.

McCoy “transferred virtually her entire operation more

than 300 miles to coastal Brunswick.” Pet. App. E194.

During the month-long trial, Ms. McCoy assisted the

attorneys prosecuting Mr. Humphreys by handling the

extensive witness logistics. Pet. App. E194. Her primary

task, however, was to support the victims’ family members.

The lower court found that “this put her in close and

extended contact” with the victims’ surviving relatives

“leading up to and throughout the trial.” Pet. App. C2. “She

was in many ways their guardian throughout the

proceedings,” the lower court wrote, and “[i]t is plain from

the record that she quite understandably formed a very

close bond with both families.” Pet. App. C6. Consequently,

Ms. McCoy’s conflict of interest with respect to deciding Mr.

Humphreys’s clemency application “kind of hit[s] you in

the face when you read about her connection to the

underlying case.” Pet. App. E31.

A second Board member, Wayne Bennett, also played a

role in Mr. Humphreys’s trial. From 1992 to 2012, Mr.

7

Bennett served as Sheriff of Glynn County, Pet. App. E263,

the new venue for Mr. Humphreys’s trial. As sheriff, Mr.

Bennett oversaw security, housing, and transportation for

the sequestered jury. Pet. App. E77.

Shortly after the execution warrant was served, Mr.

Humphreys’s counsel wrote to the Board’s counsel,

La’Quandra Smith, to alert the Board to the respective

roles that Ms. McCoy and Mr. Bennett played in Mr.

Humphreys’s prosecution. Mr. Humphreys’s counsel

inquired how the Board intended to proceed to ensure “five

conflict-free Board members to consider his clemency

application.” Pet. App. E208.

Five days later, Ms. Smith replied:

A full Board of five members is required to

consider the clemency request of an offender

sentenced to death. A majority vote of that

Board is required to render a decision. ... As it

is currently constituted, the Board plans to

give due consideration to any clemency

request made by Mr. Humphreys.

Pet. App. E210.

On December 12, 2025, Mr. Humphreys filed the

mandamus action that formed the basis of the proceedings

below, along with an emergency motion for injunctive

relief, in the Superior Court of Fulton County, Georgia. He

asked the court to order Mr. Bennett and Ms. McCoy to

satisfy their legal duty to recuse themselves; to order that

the clemency proceedings be stayed while the Board had

fewer than five unconflicted members; and to order that the

8

two conflicted members be replaced before any action was

taken on the pending clemency application.

The Superior Court held an emergency hearing on

December 15. 2 The Court took limited testimony 3 from Ms.

McCoy, Mr. Bennett, and the Board’s legal director, Ms.

Smith. As relevant here, testimony from Ms. Smith

established that, during her entire 20-year tenure, the

Board has never proceeded in a death penalty case with

fewer than five members voting upon an application for

commutation of a death sentence. Pet. App. E148. Other

record evidence suggests that the same was true as of 2002.

Pet. App. E214. When the evidence is read together, it

establishes that in the modern death penalty era, never

before has a Georgia capital clemency application been

decided upon by a vote of less than five members.

D. The Rulings Below.

1. The Superior Court of Fulton County

On December 29, the Superior Court entered an order

temporarily enjoining the Board from moving forward. The

court halted further clemency proceedings “until such time

as Petitioner can be afforded the standard, constitutionally

mandated clemency hearing before the full Board,

2 Immediately prior to the hearing, the Board Chair entered an order

“suspending” the execution, but represented to the court that the

suspension could be lifted at any time. The court proceeded on the

petition and request for emergency injunctive relief.

3 The court circumscribed the testimony to only those matters that the

court found were unresolved and not protected by privilege. Pet. App.

E95–E96, E138–E139.

9

comprised of five members who are able to participate fully

in the proceedings, including the final vote” on clemency.

Pet. App. D9 (emphasis in original). The court observed

that because Georgia law explicitly requires three votes to

grant clemency, a “non-vote has precisely the same impact

as a ‘no’ vote,” Pet. App. D7, thus putting an applicant with

fewer than five members at a disadvantage. Having

concluded that the Georgia Constitution requires five

participating members, the lower court requested briefing

solely “on the question of whether and how Member McCoy

can be replaced by an interim Board member[.]” Pet. App.

D9.

In its March 2, 2026 final order, the Superior Court

reaffirmed its finding that Ms. McCoy labored under a

conflict of interest. 4 Pet. App. C6–C7. By joint operation of

O.C.G.A. § 42-9-9 and the Board’s ethical guidelines, her

full recusal was required. Id.

But the court revisited its prior ruling that five Board

members were constitutionally required—wholly reversing

course. Despite the absence of further briefing on the

question, the court held that the Georgia Constitution does

not, in fact, require a “full Board every time.” Pet. App. C3.

Although the court previously correctly acknowledged that

under Georgia’s scheme, a “non-vote has precisely the same

impact as a ‘no’ vote,” Pet. App. D7, the court ruled that

only a mere quorum was required to decide a clemency

application, Pet. App. C3. According to the Superior Court,

this does not offend the Constitution:

4 It held that Mr. Bennett “does not labor under a similarly material

conflict of interest” and could participate. Pet. App. C8.

10

[Mr. Humphreys] will have notice of his

hearing, he will be able to call witnesses (and

testify himself if he so chooses), and he will

enjoy the services of experienced counsel.

There will be no coin-flipping. That suffices to

meet the “minimal” procedural safeguards

envisioned in [Ohio Adult Parole Auth. v.]

Woodard[, 523 U.S. 272 (1998).]

Pet. App. C3–C4, n.6. 5 All other decisions regarding how to

proceed in Mr. Humphreys case were thus “properly vested

in the broad discretion of the Board and the Governor,

respectively.” Pet. App. C8.

2. The Supreme Court of Georgia

Mr. Humphreys applied to the Supreme Court of

Georgia for review. 6 He argued that a five-member Board

decision was required by the Georgia Constitution and

5 The Superior Court resolved the federal due process question though

Mr. Humphreys did not raise it. The implications of this Court’s

holding in Woodard on the Board’s entitlement to move forward with

fewer than five voting members was never briefed and argued by the

parties. This ruling “departed so drastically from the principle of party

presentation as to constitute an abuse of discretion.” United States v.

Sineneng-Smith, 590 U.S. 371, 375 (2020); see also Margolin v. Nat’l

Assoc. of Immigr. Judges, 146 S. Ct. 1285, 1288 (2026) (“we rely on the

parties to ‘frame the issues for decision’ and decide ‘only the questions

presented.’”) (quoting Sineneng-Smith, ibid. at 375–76). Remand to the

Georgia courts is appropriate for this reason alone.

Pursuant to Georgia’s Prison Litigation Reform Act,

O.C.G.A. § 42-12-1, et seq., direct appeal of a judgment in a civil suit

brought by a prisoner is not permitted. Mr. Humphreys was required

to apply for discretionary review. O.C.G.A. § 42-12-8.

6

11

that, in the absence of such a requirement, “the majority

vote rule is arbitrary, unfair, and ultimately

unconstitutional.” April 1, 2026 Application for

Discretionary Review, at *25 (citing U.S. Const. amend.

XIV). In its response, the Board denied that any provision,

“constitutional, statutory, or otherwise,” mandated a full

five-member Board. April 10, 2026 Brief in Opposition to

Discretionary Appeal, at *12.

On April 29, 2026, the Supreme Court of Georgia denied

the application in a single-page summary order. Pet. App.

B1. A timely-filed motion for reconsideration was also

denied. Pet. App. A1. This petition follows.

REASONS FOR GRANTING THE PETITION

In Ohio Adult Parole Authority v. Woodard, this Court

found that a prisoner under a sentence of death

nevertheless retains a constitutionally-protected interest

in his life. 523 U.S. 272, 289 (1998) (O'Connor, J.,

concurring in part) (“A prisoner under a death sentence

remains a living person and consequently has an interest

in his life.”); see also id. at 291 (Stevens, J., concurring in

part and dissenting in part) (“There is [] no room for

legitimate debate about whether a living person has a

constitutionally protected interest in life. He obviously

does.”); and id. at 281 (Rehnquist, C.J., plurality opinion)

(“We agree that respondent maintains a residual life

interest, e.g., in not being summarily executed by prison

guards.”). The Court fractured, however, on whether, in

light of that residual life interest, the right to due process

inheres in executive proceedings seeking commutation of a

death sentence. Four members of the Court held that this

life interest gives rise to at least some “minimal” due

process protections in capital clemency proceedings, id. at

12

289 (O'Connor, J., concurring in part), while a fifth justice

would have held that more robust due process protections

attach, id. at 293–94 (Stevens, J., concurring in part and

dissenting in part).

Woodard did not present an opportunity for this Court

to hold that a Fourteenth Amendment right to equal

protection attaches to capital clemency proceedings as well,

though this Court’s precedents plainly support that

conclusion. See id. at 276, n.1 (Rehnquist, C.J., plurality

opinion) (“we have no occasion to decide that question.”).

This case presents an ideal vehicle to finally resolve the

questions that have dogged the lower courts since

Woodard: (1) What does “minimal” due process promise?

May the state depart from its own long-standing practice

and procedures and arbitrarily burden the applicant’s

likelihood of success in obtaining a commutation without

running afoul of this guarantee? And (2) does a prisoner

have the right to Equal Protection in clemency proceedings

based on his continuing right to life?

A. This Court Should Grant Certiorari to Define

The Right to Due Process in Clemency.

While Justice O’Connor’s controlling opinion in

Woodard established that the amount of process due in

clemency is “minimal,” the precise contours of “minimal

due process” have never been drawn by this Court. See, e.g.,

Creech v. Idaho Comm’n of Pardons and Parole, 94 F.4th

851, 855 (9th Cir. 2024) (Applying Woodard and concluding

“[t]he precise contours of our review of a commutation

proceeding are unclear.”). And the Georgia Supreme

Court’s decision below upends the single doctrinal thread

that the lower courts largely agree can be gleaned from

13

Woodard: that minimal due process means—at a

minimum—a state that follows its own established

procedures and does not deviate arbitrarily. Under the

approach condoned by the Georgia courts below, the state

need not do even that.

Moreover, in the time since this Court decided

Woodard, the role of executive clemency in capital cases

has shifted materially. As the postconviction review

process has become more cabined by substantive and

practical limits on its power to correct error, the role of

clemency in avoiding the imposition of an unjust death

sentence has grown ever more central. We respectfully ask

this Court to revisit the question of whether “minimal” due

process is the appropriate standard.

1. The lower courts generally agree that

Due Process requires, at a minimum,

that a State follow its own established

clemency procedures.

Woodard gave just two examples of a procedure that

would violate the applicant’s due process right: “a scheme

whereby a state official flipped a coin to determine whether

to grant clemency,” and “a case where the State arbitrarily

denied a prisoner any access to its clemency process.”

Woodard, 523 U.S. at 289 (O’Connor, J., concurring).

Because Ohio had accorded Mr. Woodard a process that

included notice, an opportunity to participate, and a

process that complied with the state’s own regulations, the

requirement of minimal due process was satisfied. Id. at

290.

As a result, the lower courts have largely coalesced

around a reading of Woodard that requires at least that a

14

State refrain from arbitrary action and follow its own

established procedures for commutation applications. See,

e.g., Noel v. Norris, 336 F.3d 648, 649 (8th Cir. 2003) (“[I]f

the State actively interferes with a prisoner’s access to the

very system that it has itself established for seeking

clemency petitions, due process is violated.”); Duvall v.

Keating, 162 F.3d 1058, 1061 (10th Cir. 1998) (“the

minimal application of the Due Process Clause only

ensures a death row prisoner that he or she will receive the

clemency procedures explicitly set forth by state law, and

that the procedure followed in rendering the clemency

decision will not be wholly arbitrary…”); Allen v. Hickman,

407 F. Supp. 2d 1098, 1103–04 (N.D. Cal. 2005) (“Clemency

proceedings satisfy the Due Process Clause as long as the

State follows the procedures set out in State law, the State

does not arbitrarily deny the prisoner all access to its

clemency process, and the clemency decision is not wholly

arbitrary or capricious”); Bacon v. Lee, 549 S.E.2d 840, 851

(N.C. 2001) (No due process violation where it was

“undisputed that Bacon received notice of clemency

procedures and that he has fully availed himself of these

procedures”); Baze v. Thompson, 302 S.W.3d 57, 60 (Ky.

2010) (“This minimal application [of procedural due

process] requires only that a death row prisoner receive the

clemency procedures explicitly set forth by state law…”);

see also United States v. Hutchins, 72 M.J. 294 (C.A.A.F.

2013) (Baker, C.J., dissenting) (in which the Chief Justice

of the Court of Appeals for the Armed Forces notes that

“civilian courts have concluded that” due process ensures

“that an accused receive the clemency procedures explicitly

set forth by statute”).

Never before has Georgia decided a capital clemency

application by a vote from fewer than all five members of

the Board of Pardons and Paroles. Until today,

15

commutation—the opportunity to continue living—could

be achieved by convincing any three of five duly appointed

Board members per black-letter Georgia law. After the

lower courts’ rulings, Georgia applicants like Mr.

Humphreys can be required to convince three of just four

members, or even three of three. Pet. App. C-3. This is

because, until the lower courts’ rulings, all Georgia

stakeholders—including the Board itself—believed that all

five members were required to decide a capital case. It is

thus not surprising that there has never been a deviation

from that procedure. Pet. App. D7.

But separate and apart from whether the language of

the Georgia Constitution compels that procedure, Woodard

makes plain that federal Due Process precludes the State

from arbitrarily deviating from its own “firm tradition of …

a five-member deliberative panel,” Pet. App. C8, whatever

its source. The Georgia Supreme Court’s decision here

splits from the majority of lower courts by failing to direct

the Board to comply with its own entrenched practice. This

Court should intervene.

2. The lower courts have struggled to

define the contours of Woodard’s

“minimal” due process requirement.

The precise floor established by a “minimal” due process

requirement has proven elusive. See, e.g., Hall v. Barr, 830

Fed.Appx. 8, 10 (D.C.Cir. 2020) (declining to “resolve the

precise scope of any due process protections here”). Outside

of the requirement that a state avoid arbitrary procedures,

there has been little agreement on what does—and what

does not—run afoul of Woodard’s holding. In Gissendaner

v. Comm’r, Ga. Dep’t of Corr., the Eleventh Circuit held

that the Warden’s interference in clemency counsel’s

16

preparation did not violate Woodard’s demand of minimal

due process, 794 F.3d 1327, 1333 (11th Cir. 2015), while in

Young v. Hayes, the Eighth Circuit held that Woodard’s

requirement was violated when state officials threatened

the job of a potential clemency witness to discourage his

participation. 218 F.3d 850, 853 (8th Cir. 2000). More

recently, the Eighth Circuit held that “procedural

irregularities” that deviated from the process normally

accorded other prisoners, but “did not affect the ability of

the Board to give ‘due and serious consideration to each of

[inmates’] applications’” did not offend Woodard. Lee v.

Hutchinson, 854 F.3d 978 (8th Cir. 2017).

The circuits have likewise struggled to determine

whether Woodard permits the federal courts to review

allegations that state officials produced false evidence or

committed other misconduct in the clemency proceedings.

In Workman v. Summers, 111 Fed.Appx. 369, 371 (6th Cir.

2004) (unpublished), for example, the Sixth Circuit held

that a “federal court is not authorized to review … the

quality of the evidence considered during [clemency]

proceedings,” while the Ninth Circuit recently reviewed

allegations that false evidence was produced at the

clemency hearing for harmlessness, Creech, 94 F.4th at

857.

So, does a procedural change that uniquely and

singularly disadvantages a particular set of applicants,

including Mr. Humphreys, fall below Woodard’s floor?

After all, an applicant subject to a procedure that

discriminates against him would much prefer the arbitrary

one. If the Board can proceed with four members, some

applicants begin the process already effectively having

earned one “no” vote. And a fifth member could be decisive.

As a prior Georgia Superior Court observed, the “fifth (5th)

17

board member … may well be able to move others on the

Board to favorably consider a reprieve.” Pet. App. E215.

Woodard provides little guidance; the controlling opinion is

but two paragraphs long. See Pizzuto v. Valley, 177 F.4d

1042, 1052 (9th Cir. 2026) (“Other than Justice O’Connor’s

hypothetical examples, though, there is no Supreme Court

guidance on what clemency procedures are required by the

Due Process Clause.”). The range of authority in the courts

below warrants this Court’s exercise of certiorari.

3. This Court should revisit Woodard’s

core holding.

This case also presents the perfect vehicle to revisit

Woodard’s central holding that only minimal due process

is constitutionally required. The amount of process that is

due in any given proceeding is inextricably tied to the role

that that the procedure plays in the criminal legal system.

Griffin v. Illinois, 351 U.S. 12, 18 (1956). For example, “if a

State has created appellate courts as ‘an integral part of

the ... system for finally adjudicating the guilt or innocence

of a defendant,’ the procedures used in deciding appeals

must comport with the demands of the Due Process and

Equal Protection Clauses of the Constitution.” Evitts v.

Lucey, 469 U.S. 387, 393 (1985) (quoting Griffin, 351 U.S.

at 18).

When Woodard arrived at this Court, the Sixth Circuit

below—drawing from the Evitts line of cases—had held

that “the amount of process that was due was in proportion

to the degree to which the stage was an ‘integral part’ of

the trial process.” Woodard, 523 U.S. at 278 (Rehnquist,

C.J., concurring). Clemency, though an “integral part” of

the process of adjudicating a capital case, was nevertheless

“far removed from trial,” where the most robust procedural

18

protections attach, and so the process due could be

“minimal.” Id.; Woodard v. Ohio Adult Parole Auth., 107

F.3d 1178, 1187 (6th Cir 1997) (reversed) (“[D]ue process

at the clemency stage will necessarily be minimal, perhaps

even barely perceptible, because of the great distance from

the truly fundamental process—the trial, the appeal—and

the significant distance from other extremely important

process—discretionary appeals and post-conviction

petitions.”).

Justice O’Connor’s concurrence, though not a fullthroated embrace of the Sixth Circuit approach, agreed

that clemency’s role was relevant to the amount of

constitutional protection—and concommitent judicial

oversight—that it required. “It is clear that ‘once society

has validly convicted an individual of a crime and therefore

established its right to punish,” she wrote, “the demands of

due process are reduced accordingly.” Woodard, 523 U.S. at

288 (1998) (citing Ford v. Wainwright, 477 U.S. 399, 429

(1986)). And so, Woodard’s reasoning goes, because

clemency is removed from the central process of evaluting

guilt and culpability, the due process that must be accorded

the clemency applicant is “minimal.”

The place that clemency occupies in the process of

ensuring reliability in the capital sentencing process has

shifted since Woodard. The need for robust clemency

procedures in capital cases has mushroomed as the power

of postconviction litigation to correct miscarriages of justice

has withered. Clemency has emerged as a central tool to

“prevent miscarriages of justice where judicial process has

been exhausted.” Harbison v. Bell, 556 U.S. 180, 192 (2009)

(quoting Herrera v. Collins, 506 U.S. 390, 411–12 (1993)).

19

As numerous legal scholars have observed, “[h]abeas is

broken. Badly.” 7 Its contemporary failures have been

dubbed “truly astounding.” 8 Experts have variously

described it as “an intellectual disaster area,” a “charade”

and “unworkable and perverse.” 9 This is owing both to

inadequacies in state postconviction systems, 10 and to the

7 Charles Eric Hintz, The Plain Solution to Federal Habeas, 2026 Utah

L. Rev. 261, 263 (2026).

8 Jonathan Atkins, Danielle B. Rosenthal, and Joshua D. Weiss, The

Inequities of Equitable Tolling: A Misapplication of Agency Law, 68

Stan. L. Rev. 427, 429 (2016).

9 Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 Calif.

L. Rev. 1, 1 (2010) (collecting sources).

10 See, e.g., Jordan Steiker, Jim Marcus, and Thea Posel, The Problem

of “Rubber-Stamping” in State Capital Habeas Proceedings: A Harris

County Case Study, 55 Hous. L. Rev. 889 (2018) (finding that Harris

County, Texas postconviction judges entered the prosecutor’s proposed

findings of fact and conclusions of law verbatim 94% of the time);

Alexander Hanna, Post-Conviction Channeling, 112 Va. L. Rev. 815

(2026) (finding that when the former trial judge is also assigned to hear

the postconviction petition, bias and motivated reasoning infect the

decision-making); Carol S. Steiker and Jordan M. Steiker, A Tale of

Two Nations: Implementation of the Death Penalty in “Execution”

Versus “Symbolic” States in the United States, 84 Tex. L. Rev. 1869,

1876–1901 (2006) (comparing the direct appeal and state postconviction processes of Texas and California); Margery Malkin Koosed,

Abolition of the Ohio Death Penalty?--Not for Lack of Trying, 17 Ohio

St. J. Crim. L. 27, 61–74 (2019) (discussing 2014 recommendations of

Ohio Supreme Court task force); Joan M. Fisher, Expedited Review of

Capital Post-Conviction Claims: Idaho’s Flawed Process, 2 J. App.

Prac. & Process 85, 98–108 (2000) (discussing constitutional or

procedural flaws in the Idaho expedited appeal process); Pamela R.

Goodwine, Fighting Death: A Critique of Kentucky’s Death Penalty

System, 112 Ky. L.J. 511, 534–561 (2023) (summarizing ABA report on

capital processes and including interviews with judges, prosecutors,

20

strictures of the 1996 Antiterrorism and Effective Death

Penalty Act, which placed staunch limits on federal courts’

authority to reach and redress errors of constitutional

magnitude. See, e.g., Mays v. Hines, 592 U.S. 385, 391

(2021) (per curiam) (to obtain federal habeas relief, a

prisoner must show that in adjudicating the claim the state

court “managed to blunder so badly that every fairminded

jurist would disagree” with the result); Harrington v.

Richter, 562 U.S. 86, 102 (2011) (”If this standard is

difficult to meet, that is because it was meant to be.”). This

Court has reminded the lower federal courts that concerns

about the accuracy or reliability of a conviction do not alone

justify federal habeas relief, no matter how grave the error.

See, e.g., McCarthy v. Hernandez, 146 S. Ct. 1873, 1881

(June 22, 2026) (“The panel’s opinion [granting habeas

relief] appears to reflect serious doubt about the reliability

of [the inculpatory evidence], but AEDPA does not allow a

federal habeas court to disturb a state-court conviction

based on such an evaluation of the evidence.”). Given these

limitations, clemency is now more than ever a vital “failsafe in our criminal justice system.” Harbison, 556 U.S. at

192.

These changes warrant a new look at the constitutional

procedural protections that clemency applicants are

and defense counsel about the report); William Redick, Is Tennessee

Going to Fix its Death Penalty?, 45 Bar. J. 12, 13 n.5 (2009) (citing ABA

report on Tennessee capital processes); Andrea Keilen and Maurie

Levin, Moving Forward: A Map for Meaningful Habeas Reform in

Texas Capital Cases, 34 Am. J. Crim. L. 207, 216–18, 228–29 (2008)

(discussing Texas’ appellate process and issues with state habeas,

mostly in context of deficient defense counsel).

21

owed. 11 While commutation might have been properly

characterized as “a unilateral hope” at the time of the

Court’s decision, Woodard, 523 U.S. at 282, it is now the

last and best chance to correct grave errors in our

adminstration of the death penalty. See, e.g., Harbison, 556

U.S. at 193 (“[T]he work of competent counsel during

habeas corpus representation may provide the basis for a

persuasive clemency application.”).

No case could be more illustrative than this one. Shortly

after Stacey Humphreys’s death verdict, investigators

discovered that his jury had been deadlocked 11-1 in favor

of life without parole, but one juror “wasn’t going to let that

happen[.]” Humphreys, 2024 WL 2945070, * at 4. Pet. App.

G10. A single juror—who during voir dire, concealed her

bias and lied about her prior experiences as the victim of a

home invasion/sexual assault at the hands of an escaped

murderer—deliberately deceived the other jurors during

the sentencing deliberations. Id. at 3–5. She altered their

notes to the trial court to conceal the intractable nature of

their deadlock. Id. at 4. She refused to deliberate until the

others relinquished their votes for life. Id. at 5. In short,

she single-handedly changed the outcome of Mr.

Humphreys’s sentencing proceeding to death, id. at 28

(Rosenbaum, J. concurring), and vitiated his Sixth

Amendment jury trial right, Humphreys, 146 S. Ct. at 30

(Sotomayor, J., dissenting from denial of certiorari).

11 Indeed, the entirety of Mr. Woodard’s postconviction litigation and

his clemency application pre-dated the enactment of AEDPA. See

Woodard, 523 U.S. at 277 (noting that Woodard’s clemency proceedings

were scheduled for September 1994).

22

All reviewing courts agreed that this happened. And

Georgia law is clear that Mr. Humphreys would have been

sentenced to life without parole if his jury had returned a

non-unanimous sentencing verdict. O.C.G.A. § 17-1031.1(c) (repealed by Ga. L. 2009 p. 223, April 29, 2009). As

one judge on the Eleventh Circuit Court of Appeals

observed, this grave misconduct was “the difference

between life and death” and “[the courts] should be able to

correct that error. But [they] can’t.” Humphreys, 2024 WL

2945070, * at 28. That’s because most of what we know

about what occurred comes from the sworn testimony of the

jurors. Id. at 2. And Georgia evidence law, much like the

Federal Rules of Evidence, bars juror testimony that

impeaches the verdict. O.C.G.A. § 24-6-606(b). Last term,

three Justices of this Court wrote that what occurred in

this case was “likely a violation of Humphreys’ Sixth

Amendment right to an impartial jury,” but that by the

time the case arrived here, that bedrock constitutional

violation had been “buried in a procedural thicket” that

prevented review. Humphreys, 146 S. Ct. at 29 (Sotomayor,

J., dissenting from denial of certiorari).

The shocking misconduct by a single juror denied the

other eleven the right to vote their conscience. And it

denied Mr. Humphreys the mercy to which they had

decided he was entitled based on the evidence. The only

adequate remedy available at any point in the process—the

only place that all the equities of the case can be

considered—is the clemency proceedings before the Board,

unbound by the procedural complexities of habeas and

overly formalistic evidentiary rules. The notion that only

the bare minimum of Due Process should attach to those

proceedings is untenable. See, e.g., Godfrey v. Georgia, 446

U.S. 420 (1980) (Georgia “has a constitutional

responsibility to … apply its law in a manner that avoids

23

the arbitrary and capricious infliction of the death

penalty.”); Ford, 477 U.S. at 411 (“In capital proceedings

generally, this Court has demanded that factfinding

procedures aspire to a heightened standard of reliability”).

This case presents the perfect vehicle for this Court to

revisit Woodard’s holding.

B. The Court Should Confirm That The Right

to Equal Protection Attaches In Capital

Clemency Proceedings.

The Equal Protection Clause of the Fourteenth

Amendment guarantees that “all persons similarly

circumstanced shall be treated alike” by the State. F.S.

Royster Guano Co. v. Commonwealth of Virginia, 253 U.S.

412, 415 (1920). Here, the State—through the Board—has

implemented a procedure under which some deathsentenced prisoners will have better odds of being spared

execution and living out the remainder of their natural

lives than others. Some will be accorded a full slate of five

members of the Board, only three of whom they must

convince. Others, like Mr. Humphreys, will be accorded a

Board of three or four, three of whom they must convince.

Pet. App. D7 (lower court observing that if one member

abstains, “then Petitioner would face a clemency hearing

in which someone has already, before any presentation of

evidence, debate or discussion, effectively voted no”). And

under the lower courts’ rulings, henceforth all prisoners

sentenced to death in Cobb County will be afforded the

opportunity to convince just four members, given the

nature of Ms. McCoy’s conflict of interest. This is arbitrary

and flagrantly discriminatory.

24

Does the Equal Protection clause prohibit it? This case

presents an excellent vehicle to definitively settle the

question.

1. This Court’s precedents establish a

right to equal protection.

The Equal Protection Clause “keeps governmental

decisionmakers from treating differently persons who are

in all relevant respects alike.” Nordlinger v. Hahn, 505

U.S. 1, 10 (1992). The disparate administration of

processes pursuant to an otherwise neutral statute has

long been held to violate the Fourteenth Amendment. Yick

Wo v. Hopkins, 118 U.S. 356, 374 (1886) (“[W]hatever may

have been the intent of the ordinances as adopted, they are

applied by the public authorities charged with their

administration, and thus representing the state itself, with

a mind so unequal and oppressive as to amount to a

practical denial by the state of that equal protection of the

laws[.]”). This is especially true when the governemnt acts

punitively against its citizens. Skinner v. State of Okl. ex

rel. Williamson, 316 U.S. 535, 541 (1942) (holding that

Equal Protection is offended “[w]hen the law lays an

unequal hand on those who have committed intrinsically

the same quality of offense[.]”)

Even where the government has no duty to create

procedures for vindicating rights and conferring benefits,

once it does so, those procedures must comport with the

Equal Protection clause. See, e.g., Goldberg v. Kelly, 397

U.S. 254, 262 (1970) (although under no duty to establish

public welfare programs, a state cannot terminate

individual benefits without a procedure that satisfies

constitutional commands); Morrissey v. Brewer, 408 U.S.

471, 481–82 (1972) (though a State has vast discretion in

25

setting policies governing parole decisions, it must

nevertheless administer those policies according to fair

procedures that comply with the Constitution).

This is uniquely true where a state develops procedures

integral to its criminal legal system. As this Court held in

Griffin, 351 U.S. at 18:

It is true that a State is not required by the

Federal Constitution to provide appellate

courts or a right to appellate review at all. ...

But that is not to say that a State that does

grant appellate review can do so in a way that

discriminates … [A]t all stages of the

proceedings the Due Process and Equal

Protection Clauses protect persons like

petitioners from invidious discriminations.

(internal citations omitted). See also Evitts, 469 U.S. at 393

(“[I]f a State has created appellate courts as ‘an integral

part of the...system for finally adjudicating the guilt or

innocence of a defendant, the procedures used…must

comport with the demands of the Due Process and Equal

Protection Clauses[.]”) (citing Griffin, ibid., at 18). As set

forth in Section A, the role performed by executive

clemency in de-selecting those death sentences that are

inherently unjust or inaccurate has grown ever more

“integral” to the administration of the death penalty—a

fact that weighs heavily in the constitutional calculus.

26

The People of Georgia, in ratifying the Georgia

Constitution of 1983, 12 designated capital clemency

proceedings before the Board as an integral part of their

capital punishment system. The entirety of Article IV,

Section II of the Georgia Constitution is devoted to

establishing the existence, make-up, and powers of the

Board, Ga. Const. Art. IV, § II, as is Chapter 9 of Title 42

of the Georgia code, O.C.G.A. §§ 42-9-1 to 42-9-90. The

provisions provide detailed procedures for, and limitations

on, the exercise of the Board’s power. The Constitution

specifically includes a provision that the “chairman of the

board, or any other member designated by the board, may

suspend the execution of a sentence of death until the full

board shall have an opportunity to hear the application of

the convicted person for any relief within the power of the

board.” Ga. Const. Art. IV, § II, ¶ II(d). Another provision

provides the Governor with a mechanism for temporarily

replacing an incapacitated member. O.C.G.A. § 42-9-12. In

short, the Georgia citizenry and legislature have provided

for robust capital clemency proceedings, and the Equal

Protection Clause applies to those proceedings.

For decades, the Board operated on the understanding

that a full-five member deliberative body was required to

render a capital clemency decision. See, e.g., Pet. App.

E148, E214. Indeed, the Board’s very first communication

with Mr. Humphreys’s counsel concerning the conflicted

Board members stated it plainly: “A full Board of five

members is required to consider the clemency request of an

“Unlike ordinary legislation, the people—not merely elected

legislators—are the ‘makers’ of the Georgia Constitution.” Olevik v.

State, 806 S.E.2d 505, 515 (2015).

12

27

offender sentenced to death.” Pet. App. E210. The fact that

a Georgia court has now ruled that this is not required as

a matter of state law does not alter the fact that the

practice was deeply entrenched. “Usage cannot alter the

law, but it is evidence of the construction given to it[.]”

United States v. Macdaniel, 32 U.S. 1, 15 (1833).

When a state has devised and long followed a detailed

procedure as an integral part of its system of administering

the death penalty, does deviating from that procedure

violate Equal Protection? This Court’s precedents render

the conclusion inescapable: sending Mr. Humphreys into

his clemency hearing already having earned a functional

“no” vote is arbitrary and discriminatory. Indeed, although

an Equal Protection challenge was not before the Court in

Woodard, see 523 U.S. at 276, n.1, the controlling opinion

explicitly condemned any procedure that would determine

entitlement to commutation arbitrarily, as with a coin toss,

or that discriminated in permitting access to the clemency

process, id. at 289. Protection from arbitrary and

discriminatory procedures is the central tenet of Equal

Protection. Yick Wo, 118 U.S. at 373–74.

2. This case is an excellent vehicle to

settle the question.

All Georgia capital clemency applicants come before the

Board of Pardons and Paroles standing convicted of a

capital offense. For each, a jury has found the existence of

at least one statutory aggravating factor beyond a

reasonable doubt. There is no principled distinction to be

made within this class of applicants that would justify

hampering the odds of some. See Pet. App. D7 (lower court

finding that a decision by fewer Board members “dilute[s]”

Mr. Humphreys’s “opportunity to be heard” in comparison

28

to other death-sentenced prisoners). “Central … to our own

Constitution’s guarantee of equal protection is the

principle that government and each of its parts remain

open on impartial terms to all who seek its assistance.”

Romer v. Evans, 517 U.S. 620, 633 (1996).

This case also presents a vehicle to identify the

appropriate level of scrutiny that must be applied to claims

of discriminatory clemency procedures. When state action

implicates a fundamental right, the government must

implement procedures carefully crafted to prevent the

arbitrary and disparate treatment of similarly-situated

citizens. See, e.g., Obergefell v. Hodges, 576 US. 644 (2015)

(finding an equal protection violation where fundamental

right to marry was implicated), Bush v. Gore, 531 U.S. 98,

104 (2000) (finding a violation of equal protection where

fundamental right to vote was implicated). Infringement

on fundamental rights must be “closely scrutinized and

carefully confined.” Harper v. Va. State Bd. of Elections,

383 U.S. 663, 670 (1966).

Is the right at stake in clemency fundamental?

Fundamental rights are those “rooted in the traditions and

conscience of our people” and “implicit in the concept of

ordered liberty such that neither liberty nor justice would

exist if they were sacrified.” Washington v. Glucksberg, 521

U.S. 702, 721 (1997) (internal quotations and citations

omitted). To determine whether “a particular right is

deserving of strict scrutiny under the Equal Protection

Clause, [this Court] looks to the Constitution to see if the

right infringed has its source, explicitly or implicitly,

therein.” Plyler v. Doe, 457 U.S. 202, 218, n.15 (1982).

Fewer rights are more fundamental than the right to life,

explicitly enumerated in both the Fifth and Fourteenth

Amendments.

29

But even if the residual life interest that remains at the

time of executive clemency is not alone sufficient to trigger

heightened scrutiny, it seems likely that the Board’s course

of action cannot survive even rational basis review. Romer,

517 U.S. at 635. A Board free of conflicts of interest is a

laudable goal—it is in fact one of the very goals that Mr.

Humphreys sought in the litigation below—but that goal

cannot be achieved at the expense of unequal state action

that saddles Mr. Humphreys with a burden not placed

upon similarly-situated clemency applicants. See Stanley v.

Illinois, 405 U.S. 645, 652 (1972) (“[W]e are here not asked

to evaluate the legitimacy of the state ends, rather, to

determine whether the means used to achieve these ends

are constitutionally defensible.”). The State of Georgia has

always had multiple paths available to avoid hearing Mr.

Humphreys’s case before anything less than a fullyconstituted Board; the plain text of the Georgia

Constitution provides at least one.

Moreover, the path that the Georgia courts have

blessed—a proceeding before four Board members in any

case where Ms. McCoy is conflicted as a result of her prior

victim advocacy—creates two classes of Georgia deathsentenced prisoners: those who were sentenced to death in

Cobb County during Ms. McCoy’s 25-year tenure (which is

to say, all Cobb County death-sentenced prisoners), and

those who were not. There can be no rational basis for

treating Cobb County defendants more punitively. “The

State may not rely on a classification whose relationship to

an asserted goal is so attenuated as to render the

distinction arbitrary or irrational.” City of Cleburne v.

Cleburne Living Ctr., 473 U.S. 432, 446 (1985). Nor may it

“lay[] an unequal hand on those who have committed

intrinsically the same quality of offense.” Skinner, 316 U.S.

at 541.

30

Finally, the newly-announced “quorum only” rule is not

limited to those cases where one Board member labors

under a conflict of interest. The Georgia courts have

cleared the way for the Board to proceed on any capital

clemency application with fewer than five duly-appointed

members sitting to hear the application. Pet. App. C-3, n.5

(“A quorum suffices for clemency, just as it does for any

other matter the Board is considering.”). As the lower court

put it, if the Board is permitted to proceed with just four

members, Mr. Humphreys must “bat seven fifty instead of

six hundred.” Pet. App. E-153. If the Board is permitted to

proceed in capital cases with a mere quorum, some

applicants will have to bat a thousand. And as it stands,

the State need not make any rational distinction among

them. “Equal protection of the laws is not achieved through

indiscriminate imposition of inequalities.” Sweatt v.

Painter, 339 U.S. 629, 635 (1950). This case presents an

ideal vehicle to hold that the right to Equal Protection

attaches to procedures used to determine entitlement to

executive clemency.

31

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Jessica G. Cino

Zahra S. Karinshak

Rahul Garabadu

Krevolin & Horst, LLC

1201 West Peachtree St NW

Atlanta, GA 30309

Mary E. Wells

Nathan Potek

Federal Defender Program Inc.

101 Marietta Street NW

Suite 1500

Atlanta, GA 30303

Zack Greenamyre

Mitchell, Shapiro,

Greenamyre & Funt, LLP

881 Piedmont Ave NE

Atlanta, GA 30309

T: 404-812-4747

zack@mitchellshapiro.com

July 28, 2026