Petition for Writ of Certiorari — Jerry Scott Heidler, Petitioner v. Christopher Carr, Individually and as Attorney General of Georgia, et al.

Supreme Court briefAug 14, 2026

Ask Donna

What actually matters in this document.

Text

No. _____________

CAPITAL CASE

IN THE SUPREME COURT OF THE UNITED STATES

_________________________________________________________

JERRY SCOTT HEIDLER,

Petitioner,

-vCHRISTOPHER CARR, TYRONE OLIVER,

JACOB BEASLEY, and TRIPP FITZNER,

Respondents.

__________________________________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF GEORGIA

__________________________________________________________

Zack Greenamyre

Mitchell, Shapiro, Greenamyre

and Funt LLP

881 Piedmont Avenue

Atlanta, GA

Phone: (404) 812-4747

Anna Arceneaux* (Ga. 401554)

Georgia Resource Center

104 Marietta Street NW, Suite 260

Atlanta, Georgia 30303

Phone: 404-222-9202

COUNSEL FOR PETITIONER,

JERRY SCOTT HEIDLER

*Counsel of record

QUESTION PRESENTED

In 1988, the Georgia legislature enacted a statutory framework designed to

enforce the Eighth Amendment’s substantive prohibition on the execution of mentally

incompetent prisoners, as announced by this Court in Ford v. Wainwright, 477 U.S.

399 (1986). See O.C.G.A. § § 17-10-60 – 17-10-71 (hereinafter, the “Execution

Competency Act” or “ECA”). See also Perkins v. Hall, 288 Ga. 810, 825 n.8 (2011).

However, the ECA does not contain adequate protections to guard against the

unacceptable risk that prisoners like Jerry Scott. Heidler, who possess substantial

claims that they are incompetent to be executed, will nonetheless face execution. This

is because Georgia’s statutory framework imposes an impossible 10- to 20-day

deadline on the development of execution incompetency claims—the shortest period

in the entire country.

In the courts below, Mr. Heidler challenged the ECA as violative of his

constitutional rights. This case gives rise to the following question:

1. Does Georgia’s statutory framework for enforcing the constitutional

prohibition on the execution of incompetent prisoners, in imposing a 10to 20-day deadline on the development of incompetency claims, create

an unacceptable risk that incompetent prisoners will be wrongfully

executed in violation of the Eighth and Fourteenth Amendments?

PARTIES TO THE PROCEEDINGS

Jerry Scott Heidler is the Petitioner here and was the Plaintiff-Petitioner

below.

Georgia Attorney General Christopher Carr; Georgia Department of

Corrections Commissioner Tyrone Oliver; Georgia Diagnostic and Classification

Prison Warden Jacob Beasley; and Middle Judicial Circuit of Georgia District

Attorney Tripp Fitzner are the Respondents here, in their individual and official

capacities, and were the Defendants-Respondents below.

iii

STATEMENT OF RELATED PROCEEDINGS

The case arises from the following proceedings:

Superior Court of DeKalb County, Georgia:

Heidler v. Carr, et al., No. 24CV8914 (Feb. 24, 2026)

Supreme Court of Georgia:

Heidler v. Carr, et al., No. S26D1085 (Apr. 16, 2026)

TABLE OF CONTENTS

RELATED PROCEEDINGS......................................................................................... iii

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

TABLE OF CONTENTS ................................................................................................ v

TABLE OF AUTHORITIES ......................................................................................... vi

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

OPINIONS BELOW ...................................................................................................... 1

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

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

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

Georgia Law Imposes an Impossible Deadline on the Development of

Execution Incompetency Claims.............................................................. 2

II. Mr. Heidler Has a Substantial Claim that He is Incompetent to be

Executed. .................................................................................................. 3

III. The State Court Rulings. ......................................................................... 9

REASONS WHY CERTIORARI SHOULD BE GRANTED ....................................... 10

This Court Should Grant Certiorari to Ensure that Georgia’s Statutory

Procedures for Determining Competency-to-be-Executed Claims

Comport with the Constitution. ............................................................. 10

II. Ten to Twenty Days is a Constitutionally Inadequate Timeframe to

Raise, Develop, Litigate, and Prove a Ford Claim. ............................... 15

III. The Speculative Possibility of a Stay of Execution is an Illusory Remedy

Insufficient to Deprive the Lower Courts of Subject Matter Jurisdiction

or to Cure the Constitutional Defects with the ECA. ........................... 18

CONCLUSION............................................................................................................. 24

TABLE OF AUTHORITIES

Cases

Barber v. Governor of Alabama, 73 F.4th 1306 (11th Cir. 2023) ............................... 22

Commonwealth v. Banks, 29 A.3d 1129 (Pa. 2011) .................................................... 17

Cooper v. Oklahoma, 517 U.S. 348 (1996) .................................................................. 17

Druery v. State, 412 S.W.3d 523 (Tex. Crim. App. 2013) ........................................... 17

Ford v. Tate, 307 Ga. 383 (2019) ................................................................................. 23

Ford v. Wainwright, 477 U.S. 399 (1986) ...................................................... 2, 3, 10-24

Foster v. Chatman, 578 U.S. 488 (2016) ..................................................................... 10

Mathews v. Eldridge, 424 U.S. 319 (1976) .................................................................. 15

Moore v. Texas, 581 U.S. 1 (2017) ............................................................................... 17

Owens v. Hill, 295 Ga. 302 (2014) ............................................................................... 22

Panetti v. Davis, 863 F.3d 366 (5th Cir. 2017) ............................................... 14, 15, 16

Panetti v. Lumpkin, No. A-04-CA-042-RP, 2023 U.S. Dist. LEXIS 173754, (W.D. Tex.

September 27, 2023) ................................................................................................ 15

Panetti v. Quarterman, 551 U.S. 930 (2007)............................................... 2, 11, 12, 13

Rhode v. Upton, Case No. S11W0142 (Ga. 2010) ....................................................... 23

Sears v. Upton, 561 U.S. 945 (2010)............................................................................ 10

Zant v. Dick, 249 Ga. 799 (1982) ................................................................................. 22

Statutes

Ala. Code § 15-16-23 .................................................................................................... 17

Ariz. Stat. § 13-4022 .................................................................................................... 17

Cal. Pen. Code § 3701 .................................................................................................. 20

Fla. R. Crim. P. 3.811 .................................................................................................. 21

Fla. Stat. § 922.052 ...................................................................................................... 17

Fla. Stat. § 922.07 .................................................................................................. 20, 21

Kan. Stat. § 22-4006 .............................................................................................. 17, 20

Mo. Stat. § 552.060 ...................................................................................................... 20

Mo. Sup. Ct. R. 30.30 ................................................................................................... 18

Mont. Code § 46-14-202 ............................................................................................... 18

Mont. Code § 46-19-103 ............................................................................................... 18

N.C. Gen. Stat. § 15A-1002 ......................................................................................... 18

Neb. Stat. § 29-2537..................................................................................................... 20

O.C.G.A. § 17-10-40 ....................................................................................................... 3

O.C.G.A. § 17-10-63 ..................................................................................................... 23

O.C.G.A. § 17-10-67 ....................................................................................................... 3

O.C.G.A. § 17-10-68 ..................................................................................................... 20

Tex. C. Crim. Proc. Art. 43.141 ................................................................................... 18

Tex. Code Crim. Proc. Art. 46.05................................................................................. 21

Wyo. Stat. § 7-13-902..................................................................................................... 21

vii

Other Authorities

Coronavirus Pandemic Halts Executions, Perhaps for the Foreseeable Future, Death

Penalty Info. Ctr. (Mar. 27, 2020), https://deathpenaltyinfo.org/coronaviruspandemic-halts-executions-perhaps-for-the-foreseeable-future. ............................. 3

Daisy V. Shirk et al., “One in a million”: A case of a very early onset schizophrenia, 6

Case Rep. Int’l 1 (2020) ............................................................................................. 5

Patricia A. Zapf, PhD., Elucidating the Contours of Competency for Execution: The

Implications of Ford and Panetti for the Assessment of CFE, 37 J. Psych. & L. 269

(2009)........................................................................................................................ 14

Rules

Fla. R. Crim. P. 3.811(c) .............................................................................................. 21

Ga. Sup. Ct. R. 34 ........................................................................................................ 10

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Jerry Scott Heidler respectfully submits this Petition for a Writ of

Certiorari to review the judgment of the Supreme Court of Georgia.

OPINIONS BELOW

The order of the DeKalb County Superior Court dismissing Mr. Heidler’s

Complaint for Declaratory and Injunctive Relief is reproduced at Pet. App. 1a-27a.

The order of the Supreme Court of Georgia denying discretionary review of the

superior court’s order is reproduced at Pet. App. 28a.

JURISDICTION

This Court has jurisdiction to hear this case under 28 U.S.C. § 1257(a). The

DeKalb County, Georgia Superior Court dismissed Mr. Heidler’s Complaint for

Declaratory and Injunctive Relief on February 24, 2026. The Georgia Supreme Court

denied discretionary review of the lower court’s order on April 16, 2026. On July 14,

2026, this Court extended the deadline to file a petition for writ of certiorari to August

14, 2026.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the rights of a death-sentenced prisoner facing execution,

under the Eighth and Fourteenth Amendments to the United States Constitution:

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed,

nor cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No State shall . . . deprive any person of life, liberty or property,

without due process of law.

In Georgia, a death-sentenced prisoner’s ability to demonstrate his

incompetency to be executed, as set forth in this Court’s decisions in Ford v.

Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930

(2007), is constrained by the following statutes:

O.C.G.A. § 17-10-62 provides in relevant part that, “this article

provides the exclusive procedure for challenging mental

competency to be executed.”

O.C.G.A. § 17-10-67 provides that “[a]n application under this

article shall not be filed until completion of direct appeal and until

an order has been signed by a judge of the trial court setting a

time period for the execution.”

O.C.G.A. § 17-10-40(b) provides in pertinent part that the “time

period for the execution fixed by the judge shall commence not

less than ten nor more than 20 days from the date of the order.”

STATEMENT OF THE CASE

Georgia Law Imposes an Impossible Deadline on the

Development of Execution Incompetency Claims.

By statute, Georgia has the shortest execution warrant period in the country. 1

Like many states, Georgia requires death-sentenced prisoners to wait until an

1 Coronavirus Pandemic Halts Executions, Perhaps for the Foreseeable Future,

Death Penalty Info. Ctr. (Mar. 27, 2020), https://deathpenaltyinfo.org/coronavirus2

execution warrant issues before raising an execution incompetency claim. See

O.C.G.A. § 17-10-67. But unlike any other state, Georgia law mandates a 10- to 20day warrant period, thus imposing an impossible—and constitutionally intolerable—

deadline on the development of Ford claims. See O.C.G.A. § 17-10-40(b). Also, unlike

other states, Georgia’s statutory framework does not set forth any standards

governing the circumstances under which a stay of execution must be granted in

consideration of a pending Ford claim. The absence of such statutory safeguards

exacerbates the unacceptable risk that prisoners like Mr. Heidler, who possess

substantial claims that they are incompetent to be executed, 2 will nonetheless be

wrongfully executed 3 despite their incompetence.

II.

Mr. Heidler Has a Substantial Claim that He is Incompetent

to be Executed.

For nearly his entire life, Jerry Scott Heidler has lived with a severe psychotic

disorder. Medical professionals, courts, and even the State’s lawyers have long

recognized the severe, chronic nature of Mr. Heidler’s psychosis. See, e.g., D.19-6:79 4

pandemic-halts-executions-perhaps-for-the-foreseeable-future (noting that Georgia’s

“death warrant period is the shortest in the nation”).

2 A prisoner who makes a “substantial threshold showing” of incompetence is

constitutionally entitled to a fair procedure to prove his claim. Panetti v. Quarterman,

551 U.S. 930, 949 (2007) (citing Ford, 477 U.S. at 426 (Powell, J., concurring)).

3 Cf. Hall v. Florida, 572 U.S. 701, 709 (2014) (emphasizing that individuals

with certain psychiatric disabilities face a “special risk of wrongful execution,”

despite the fact that the Constitution prohibits the State from executing them, due

to inadequate protections during the adjudication process).

4 Citations to “D.” refer to the federal habeas record in Heidler v. Chatman, No.

CV 611-109 (S.D. Ga.).

(testimony of jail nurse who treated Mr. Heidler prior to trial that he was “one of the

most seriously…mentally ill inmates he had ever seen”); D.19-4:48 (testimony of

Georgia Department of Corrections psychiatrist who treated Mr. Heidler for several

years on death row that he had a “very serious case” of mental illness, requiring

“significant interventions”); D.31-12:17 ((state habeas court’s final order finding that

“for the majority of Mr. Heidler’s life, Mr. Heidler has been significantly impaired by

his mental illness and [] it is ‘highly unlikely’ he will ever be free of the substantial

impairments.”); Preliminary Injunction Hr’g Tr. at 39, Heidler v. Carr, et al., No.

24CV8914 (DeKalb Cty. Sup. Ct. Nov. 18, 2024) (“[the State isn’t] denying that [Mr.

Heidler] has serious mental health issues”); Def. Mtn. to Dismiss at 5, Heidler v. Carr,

et al., No. 24CV8914 (DeKalb Cty. Sup. Ct. Mar. 12, 2025) (“Defendants do not dispute

that Heidler has long-standing serious mental health issues”); Extraordinary Motion

for New Trial (EMNT) Hr’g. Tr. at 14, State v. Heidler, No. 98-CR-48 (Toombs Cty.

Sup. Ct. Aug. 18, 2025) (“the State has never contested that Mr. Heidler has serious

mental health issues that were all throughout his life”); Pet. App. 5a (“Defendants do

not dispute that Heidler has long-standing serious mental health issues . . . .”); Pet.

App. 22a (“the Court recognizes…Heidler’s…long-standing mental health issues”);

EMNT Hr’g Tr. at 60-61 (Toombs Cty. Sup. Ct. Mar. 19, 2026) (trial court speculating

that “they won’t [execute] a person with those kind of mental health issues”).

Because Mr. Heidler’s psychotic symptoms emerged prior to the age of 13, his

illness is classified as very early onset psychosis, a rare form of psychotic disorder

affecting only 0.04% of the population. 5 Very early onset psychosis is associated with

an especially severe course of illness. At least as early as pre-adolescence, Mr. Heidler

began exhibiting severe psychotic symptoms. In May 1989, 11-year-old Mr. Heidler

was hospitalized for six weeks at Georgia Regional Hospital-Savannah, after

attempting suicide by hanging and by standing in the middle of the road in the path

of oncoming logging trucks. D.21-10:3, 8, 9, 17. He told a psychiatrist that at the time,

he heard a man’s voice telling him to kill himself. D.21-10:40. Mr. Heidler was

discharged from the hospital after six weeks, and even then, only because his mother

refused to return him for treatment following a weekend pass. D.21-11:9-10; D.157:49.

At age 12, a pediatrician again referred Mr. Heidler for involuntary psychiatric

hospitalization, after observing him actively hallucinating in front of her. D.28-15:53.

Instead, his mother took him home and declined to seek treatment. The Department

of Family and Children’s Services subsequently brought a case against Mr. Heidler’s

mother for medical neglect, concerned that she was “not providing adequate mental

health treatment” for her son. D.20-9:57, 61.

This pattern recurred throughout Mr. Heidler’s childhood. Due to his family’s

poverty and his mother’s neglect, Mr. Heidler was unable to access the care that he

needed. As a result, his early psychotic symptoms went unaddressed. Mr. Heidler’s

Daisy V. Shirk, et al., “One in a million”: A case of a very early onset

schizophrenia, 6 Case Rep. Int’l 1 (2020).

teenage years were characterized by suicide attempts, involuntary psychiatric

hospitalization, and bizarre, alarming behavior. See, e.g., D.21-11:51 (involuntary

hospitalization for mental illness upon a finding of imminent risk to self, age 13);

D.21-14:20-23, 65-70 (repetitive attempts at self-harm resulting in crisis intervention

and the use of restraints, age 14); D.21-9:12-15, 21-14:15 (suicidal, curled in a fetal

position sucking a pacifier, age 17).

During his pretrial detention for the instant offense, Mr. Heidler, in his early

twenties, was treated by a jail nurse who described Mr. Heidler as “one of the most

seriously” mentally ill individuals he had ever encountered. D.19-6:79. While

awaiting trial, Mr. Heidler attempted suicide five times. D.20-19:51-57, 59-61; D.2020:28-31. He wrote incoherent letters to his attorneys, explaining that he was

haunted by the voice of his dead baby crying, 6 that he was seeing things, and that he

was not eating or sleeping. D.19-13:6-8, 10-11, 13-14. He burned himself with

cigarettes and tore pieces of flesh off his face just to stay awake to avoid terrifying

nightmares. D.19-6:69-73.

Shortly after his arrival on death row in the fall of 1999, Mr. Heidler was

diagnosed with a psychotic disorder. D.25-18:36. At the prison, he has been

administered heavy doses of antipsychotic medications for years, doses so powerful

that, as one Georgia Department of Corrections psychiatrist testified before the state

6 The crimes for which Mr. Heidler was convicted occurred on the day that he

buried his stillborn son. D.23-4:34.

habeas court, “if I were to take them I would have difficulty waking up for a couple of

days.” D.19-4:61. Despite this intensive treatment, Mr. Heidler’s psychosis has

persisted, and his present condition is characterized by a complex delusional belief

system and pervasive thought disorganization.

In support of his Complaint for Declaratory and Injunctive Relief in the courts

below, Mr. Heidler filed under seal over 11,000 pages of mental health records from

the Georgia Department of Corrections, spanning the entirety of his nearly three

decades on death row. These records are replete with examples of his longstanding

psychotic symptoms, 7 symptoms that continue to interfere with his capacity to

understand his death sentence.

7 Mr. Heidler’s prison mental health records contain voluminous evidence of

his complex delusional belief system, in particular. The following examples, all from

records attached to the complaint, are illustrative:

• “Disoriented. Believes his name is ‘2.5.’ States he is Korean. Delusional.

Disorganized.” (progress note January 2023, Compl. Ex. A at 10549).

• “I’m an Assyrian from Babylon. I finished my cancer treatments.” (progress note

August 2017, Compl. Ex. A. at 9373).

• “I’m old/young Asian government. I had my last cancer treatment with radioactive

dye. I’m amorphodite and need talk therapy with only female counselors.”

(progress note June 2017, Compl. Ex. A at 9376).

• “I/M [inmate] reports that he is a fairy and that he was part of the special forces

in the military.” (progress note December 2016, Compl. Ex. A at 9807).

• “[C]ontinues to have delusions of being in the military and having lights in his

brain…then begins talking about a sexual cancer from the fairies” (progress note

August 2016, Compl. Ex. A at 9396).

• “I/M talked about being an infant fairy today and that due to this he has sexual

cancer. He reports getting treatment and that he is in the military special forces.

I/M also reported that he is super intelligent and that he has had probes placed in

his head that made him that way.” (progress note June 2016, Compl. Ex. A at

9401).

Mr. Heidler has exhausted his habeas appeals 8 and is at “substantial risk” of

receiving an execution warrant. See Pace, King, and Heidler vs. Comm’r, Ga. Dep’t of

Corr., No. 24-13973, 2026 U.S. App. LEXIS 18618, at *18 (11th Cir. June 26, 2026)

(unpublished) (plaintiffs, including Mr. Heidler, “face[] a ‘substantial risk’ that the

state will seek to execute” them); id. at *16-*17 (“there’s a realistic danger the state

will imminently move forward with [Heidler’s] execution”). Due to his profound

•

“When I began talking with I/M he was delusional reporting having cancer which

per medical notes he does not have and then again discussing being a

fairy.” (progress note April 2016, Compl. Ex. A at 9405).

“I’m a boy/girl with the CIA Special Olympics, and I take radioactive drugs for

cranial/cortex cancer. I’m 90 years old.” (progress note June 2015, Compl. Ex. A at

9419).

“I’m a military identifier. A neurosurgeon. I’ve carried out every mission. I work

with rangers.” (progress note April 2015, Compl. Ex. A at 9425).

“Chronically severely delusional. Tells me he is 92 years old, being treated for

cancer with radar screens, is in a phase of fairy growth.” (progress note December

2014, Compl. Ex. A at 9431).

“I/M Heidler remains delusional. He states he is a military officer and has been

an astronaut for 78 years. I/M states he is also a fairy and an old man.” (progress

note October 2014, Compl. Ex. A at 9454).

“I/M reports being a fairy and having foreign DNA.” (progress note November

2010, Compl. Ex. A at 7528)

“He continued to talk about…a ‘machine’ that sends radio waves to his ‘halo’ then

permitting him to hear what the radio waves are saying.” (progress note January

2009, Bates 7723)

“He believes…’the aliens’ check on him by making ‘little scratches’ on various

parts of his body…he…said that he has a little angel in his left eye…” (progress

note August 2008, Bates 6651)

“I/M was banging on the glass saying an alien was in his cell.” (progress note April

2007, Compl. Ex. A at 5322) note October 2016, Compl. Ex. A at 9390).

8 See Heidler v. Warden, No. 20-13752, 2023

U.S. App. LEXIS 19941 (Aug. 2,

2023), cert. denied, Heidler v. Emmons, 144 S. Ct. 2565 (May 20, 2024).

psychosis and its impact on his functioning, he has a substantial claim that he is

incompetent to be executed. However, because Georgia law imposes an impossible 10to 20-day deadline on Mr. Heidler’s opportunity to prove his claim, he faces an

unacceptable risk that he will be wrongfully executed notwithstanding his

incompetence.

III.

The State Court Rulings.

Given Georgia’s ECA’s unconstitutionally intolerable timeline, Mr. Heidler

brought a complaint in the Superior Court of DeKalb County, Georgia, against

Defendants Georgia Attorney General Christopher Carr, Georgia Department of

Corrections Commissioner Tyrone Oliver, Warden Jacob Beasley, and District

Attorney Tripp Fitzner, which sought a declaration that the ECA’s framework

violates his federal and state constitutional rights to due process and to be free from

cruel and unusual punishment and sought an injunction preventing the Defendants

from moving forward with his execution until the ECA’s defects were remedied.

Defendants moved to dismiss, and following a hearing, the superior court

announced that it intended to dismiss Mr. Heidler’s Complaint. It asked Defendants

to supply the legal basis for doing so and to draft a dismissal order. Hr’g. Tr. at 4748, Heidler v. Carr, et al., No. 24CV8914 (DeKalb Cty. Sup. Ct. Jan. 28, 2026), Pet.

App. 75a-76a. The court then adopted Defendants’ proposed order verbatim. See Pet.

App. 26a. The court ruled that it lacked subject matter jurisdiction and that Mr.

Heidler had failed to state a claim because his alleged constitutional violations were

“hypothetical” and “conjectural” because the ECA does not preclude him from

requesting a stay of execution. Pet. App. 13a-16a (internal quotation omitted).

Mr. Heidler sought discretionary review of the lower court’s dismissal order in

the Supreme Court of Georgia. That court denied review in a single-sentence order. 9

This Court granted Mr. Heidler an extension of time in which to file his

Petition for Writ of Certiorari, until August 14, 2026. This petition follows.

REASONS WHY CERTIORARI SHOULD BE GRANTED

This Court Should Grant Certiorari to Ensure that Georgia’s

Statutory Procedures for Determining Competency-to-beExecuted Claims Comport with the Constitution.

Georgia stands alone among the states in statutorily imposing a 10- to 20-day

deadline on the development and presentation of Ford claims. The superior court, in

dismissing Mr. Heidler’s Complaint, and the Supreme Court of Georgia, in denying

further review, forfeited a critical opportunity to consider the constitutionality of the

impossible deadlines set by the ECA, thus insulating the act’s offensive provisions

from judicial scrutiny. This Court has made clear that a prisoner who makes a

Georgia Supreme Court Rule 34 establishes the standard for granting

discretionary review, such that an application should be granted where “reversible

error appears to exist” and/or “the establishment of precedent would be desirable.”

Id. In circumstances comparable to these—where Georgia law sets the standard for

granting discretionary review and such review is denied by the Supreme Court of

Georgia in an unexplained order—this Court has held that the petitioner should seek

certiorari to the Supreme Court of Georgia, even though the Court must review the

reasoning of the lower court’s decision. See Foster v. Chatman, 578 U.S. 488, 497 n.2

(2016) (citing Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 138-139 (1986)

and Sears v. Upton, 561 U.S. 945 (2010)).

“substantial threshold showing” of incompetence is constitutionally entitled to a fair

procedure to prove his claim. Panetti, 551 U.S. at (citing Ford, 477 U.S. at 426 (Powell,

J., concurring)). Georgia’s framework, in setting an impossibly tight 10- to 20-day

deadline, falls far short of the fair procedure that the Constitution demands. Georgia

is the only state in the nation that imposes such a short deadline on death-sentenced

prisoners facing execution. Other states provide considerably more time, either

because the state’s warrant period is longer, because specific statutory provisions

dictate when a stay must be granted in consideration of a pending Ford claim, and/or

because prisoners are permitted to raise an incompetency claim before an execution

warrant issues.

Georgia law provides none of these protections, and instead, barring judicial

intervention through a stay of execution, requires incompetent prisoners to prove

their claims within ten to twenty days. In finding that the court lacked subject matter

jurisdiction and that Mr. Heidler failed to state a claim, the superior court ruled that

the speculative possibility of a stay adequately safeguards Mr. Heidler against the

risk that he will be wrongfully executed notwithstanding Georgia’s impossible

deadline. This conclusion reflects an impoverished understanding of the protections

the Constitution affords those with substantial claims that they are incompetent to

be executed. This Court’s review is therefore warranted.

A death-sentenced prisoner’s constitutional right to a fair opportunity to

develop and present an incompetency claim is rooted in the Eighth and Fourteenth

Amendments to the Constitution. Ford, 477 U.S. at 424-25 (Powell, J., concurring).

The Eighth Amendment secures the procedural safeguards necessary to enforce the

Constitution’s substantive prohibition on executing incompetent prisoners, while the

Fourteenth Amendment prohibits the State from depriving a prisoner of his right not

to be executed while incompetent without first affording a process that comports with

“fundamental fairness.” Id.; see also Panetti, 551 U.S. at 948-50. The constitutional

fair procedure requirement has been summarized by the Court as follows:

Although the condemned prisoner does not enjoy the same

presumptions accorded a defendant who has yet to be convicted or

sentenced, he has not lost the protection of the Constitution altogether;

if the Constitution renders the fact or timing of his execution contingent

upon establishment of a further fact, then that fact must be determined

with the high regard for truth that befits a decision affecting the life or

death of a human being. Thus, the ascertainment of a prisoner’s sanity

as a predicate to lawful execution calls for no less stringent standards

than those demanded in any other aspect of a capital proceeding.

Panetti, 551 U.S. at 948-49 (quoting Ford, 477 U.S. at 411-12) (plurality opinion); see

also id. (citing Ford, 477 U.S. at 424-27) (Powell, J., concurring) (incompetent

prisoner entitled to procedural protections against wrongful execution, including a

“constitutionally

acceptable

procedure”

which

comports

with

the

“basic

requirements” of “due process” by providing “an opportunity to be heard”).

To date, the Court has not articulated “the precise limits” that the Constitution

imposes on state execution incompetency frameworks. Panetti, 551 U.S. at 949

(quoting Ford, 477 U.S. at 427) (Powell, J., concurring). The Court has, however,

made clear that states must provide certain “minimum procedures” to satisfy the

Constitution’s “basic requirements.” Id. at 948-50 (citing Ford, 477 U.S. at 427)

(Powell, J., concurring); see also Ford, 477 U.S. at 414 (plurality opinion)

(emphasizing that state procedures must provide, as a basic element of due process,

“an opportunity to be allowed to substantiate an [execution incompetency] claim

before it is rejected”) (quoting Solesbee v. Balkcom, 339 U.S. 9, 23 (1950) (Frankfurter,

J., dissenting).

At minimum, states must guarantee the prisoner the opportunity to develop

and present expert psychiatric evidence on the complex psycho-legal issue of

execution incompetency. The need to secure this opportunity was of critical concern

to both the plurality and to Justice Powell’s controlling concurrence in Ford. 477 U.S.

at 414 (plurality opinion) (emphasizing that prisoner’s presentation of expert

psychiatric evidence developed through “extensive evaluation” offers the “substantial

benefit” of “probative information” on a “contested issue[] of mental state” and further

noting that depriving the prisoner of the opportunity to develop such evidence results

in “a much greater likelihood of an erroneous decision”); id. at 426-27 (Powell, J.,

concurring) (describing a prisoner’s opportunity to develop and present “expert

psychiatric evidence” as a “basic requirement” of the

Constitution, and

acknowledging that the “competency determination depends substantially on expert

analysis in a discipline fraught with ‘subtleties and nuances’”) (quoting Addington v.

Texas, 441 U.S. 418, 430 (1979)). See also Patricia A. Zapf, PhD., Elucidating the

Contours of Competency for Execution: The Implications of Ford and Panetti for the

Assessment of CFE, 37 J. Psych. & L. 269, 293-300 (2009) (describing the thorough

nature of competency-to-be-executed evaluations).

Indeed, the need for adequate time is imperative in the context of execution

incompetency claims, which necessarily involve an inquiry into the “subtle reaches”

of a prisoner’s mental condition. Panetti v. Davis, 863 F.3d 366, 378 (5th Cir. 2017).

Ten to twenty days simply do not provide sufficient time for an incompetent prisoner

to present “expert psychiatric evidence” on a “contested issue[] of mental state”

“fraught with subtleties and nuances,” to develop such evidence through “extensive

evaluation,” or for the court to derive “substantial benefit” from carefully considering

this “probative” evidence, thus reducing the risk of an “erroneous” competency

determination and, ultimately, reducing the risk of wrongful execution. Ford, 477

U.S. at 414, 426-27. 10 This is especially true in the case of a person like Mr. Heidler,

who has been profoundly impaired by severe psychotic symptoms for nearly his entire

life, who has been diagnosed with and treated for psychosis by State psychiatrists for

nearly three decades, and whose prison records alone span over 11,000 pages. See

Panetti v. Lumpkin, No. A-04-CA-042-RP, 2023 U.S. Dist. LEXIS 173754, *11 (W.D.

The ECA’s provisions themselves make clear that the incompetency

adjudication process contemplated by the Georgia legislature would be impossible to

accomplish within the 10- to 20-day deadline it has imposed. The statutes anticipate

the presentation and development of detailed factual allegations concerning the

prisoner’s present mental condition, responsive pleading, evaluations by experts for

both the prisoner and the State, a discovery period to include depositions, the taking

of evidence through live testimony at a hearing and via affidavits, the trial court’s

issuance of a reasoned order setting forth findings of fact and conclusions of law, and

appeal to the Georgia Supreme Court. See O.C.G.A. §§ 17-10-63, 65, 66, 68.

Tex. September 27, 2023) (citing Panetti, 551 U.S. at 960) (acknowledging the

relevance of a review of a prisoner’s “lengthy history” of psychotic symptoms to the

determination of his current mental state). In sum, because the ECA’s 10- to 20-day

deadline does not provide Mr. Heidler an adequate “opportunity to substantiate” his

execution incompetency claim “before it is rejected” and he is wrongfully executed,

Ford, 477 U.S. at 414, Georgia’s procedure falls short of the minimum protections to

which Mr. Heidler is entitled under the Eighth and Fourteenth Amendments.

II.

Ten to Twenty Days is a Constitutionally Inadequate

Timeframe to Raise, Develop, Litigate, and Prove a Ford

Claim.

The Constitution does not precisely define, in terms of months or weeks, the

minimum time that a state must afford an incompetent prisoner to develop a Ford

claim. Consistent with the Court’s foundational due process analysis, the timeframe

inquiry is context-dependent, calling for such “protections as the particular situation

demands.” Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (quotation omitted).

Here, where the State of Georgia may wrongfully deprive Mr. Heidler of his life,

despite his incompetence to be executed, the Constitution demands more. To be sure,

the requirement of adequate time is indispensable in this context, because

“[t]runcated hearings and exacting strictures can squeeze the life from due process”

and exacerbate the risk of wrongful execution. Panetti, 863 F.3d at 378. 11

11 As the Fifth Circuit correctly observed in Panetti, Ford procedures which

prioritize expediency over accuracy and reliability may “perversely create[] [] delay,”

State and federal appellate courts that have considered comparable

timeframes have found them inadequate. See, e.g., Panetti, 863 F.3d at 374-76 (5th

Cir. 2017) (concluding that 34-day timeframe to develop and present incompetency

claim was an “impossible” deadline that violated due process, as well as Scott

Panetti’s Eighth Amendment right to be protected against wrongful execution). 12 See

863 F.3d at 378, due to the inevitable consequence of litigation aimed at redressing

states’ violations of prisoners’ rights to adequate time.

In the courts below, Mr. Heidler introduced two affidavits from counsel who

represented successful Ford claimants in recent proceedings. Emma Rolls, who

represented James Ryder in Oklahoma, explained that adjudication of Mr. Ryder’s

Ford claim lasted 18 months from filing to resolution. This period enabled the parties

to engage in “extensive discovery,” allowed for multiple evaluations of Mr. Ryder by

experts from both parties, and ensured time for motion practice and issue-specific

hearings. See Plaintiff’s Notice of Filing, at 5, Heidler v. Carr, et al., No. 24CV8914

(Nov. 16, 2024) (Affidavit of Emma Rolls). The Oklahoma courts’ provision of

adequate time at the outset ultimately streamlined the proceedings and eliminated

the need for protracted litigation to address unconstitutional time constraints.

In contrast, Gregory Wiercioch, who represented Scott Panetti in incompetency

proceedings for over 20 years, explained in an affidavit the ways in which the Texas

courts’ repeated violations of Mr. Panetti’s constitutional right to adequate process

resulted in a delay of nearly two decades before his claim was ultimately resolved.

After the Fifth Circuit remanded Mr. Panetti’s case to the district court in

consideration of these violations in Panetti v. Davis, the district court granted Mr.

Panetti 270 days to prepare for an evidentiary hearing on his incompetency claim.

After providing Mr. Panetti with adequate process, the district court was able to

resolve Mr. Panetti’s claim efficiently and accurately. See Plaintiff’s Notice of Filing,

at 17, Heidler v. Carr, et al., No. 24-CV-8914 (Nov. 16, 2024) (Affidavit of Gregory

Wierioch).

12 As the Fifth Circuit recognized, after Mr. Panetti was forced to develop and

present his Ford claim subject to this impossible deadline, the Texas legislature

amended the state’s warrant statute to require a minimum 91-day warrant period.

Panetti, 863 F.3d at 370 n.28. After the Fifth Circuit granted relief and remanded

proceedings to the district court, Mr. Panetti was afforded additional time to

substantiate his claim, and was ultimately found incompetent to be executed. Panetti

v. Lumpkin, No. A-04-CA-042-RP, 2023 U.S. Dist. LEXIS 173754 (W.D. Tex.

September 27, 2023).

also Druery v. State, 412 S.W.3d 523, 529 (Tex. Crim. App. 2013) (explaining that it

was “not possible” to resolve an incompetency claim under a 20-day deadline, and

adjusting execution date to ensure additional time); Commonwealth v. Banks, 29 A.3d

1129, 1134 (Pa. 2011) (noting that two weeks was “an unrealistic time-frame” for

resolution of incompetency claim “under the best of circumstances”).

Whatever the constitutional minimum may be, Georgia does not meet it. No

other state in the country imposes a 10- to 20-day deadline on the development and

presentation of Ford claims. 13 Other states afford considerably more time, either

because prisoners are permitted to file a Ford claim before a warrant issues, because

state statutes provide for longer warrant periods, and/or because states’ Ford statutes

prescribe a longer timeframe for the incompetency adjudication process. See, e.g., Ala.

Code § 15-16-23 (incompetency challenge may be brought “at any time before the

execution of the sentence”); Ariz. Stat. § 13-4022 (Ford claim may be raised “after a

sentence of death is imposed”); Fla. Stat. § 922.052(2)(b) (180-day warrant period);

Kan. Stat. § 22-4006(a) (Ford claim may be brought “at any time prior to execution”);

States do not have “unfettered” discretion in developing procedures to

enforce substantive constitutional rights. Cf. Moore v. Texas, 581 U.S. 1, 13 (2017)

(quoting Hall, 572 U.S. at 519) (finding Texas procedure inadequate to enforce Eighth

Amendment protection against wrongful execution). Georgia’s status as a national

outlier is relevant to the Court’s constitutional analysis, and the fact that every other

state provides more time—in many cases, considerably more time—deserves due

consideration. See also Cooper v. Oklahoma, 517 U.S. 348, 360-62 (1996) (analysis of

“contemporary practice” in other states relevant to determination of whether state

procedure satisfies due process).

Mont. Code § 46-14-202(2) (competency evaluation period may last 60 days); 14 Mont.

Code § 46-19-103 (1) (90-day warrant period); N.C. Gen. Stat. § 15A-1002(b2) (time

allotted for competency examination and report may total 120 days); 15 Or. Stat. §

137.463(4)(a) and (6)(a) (court must inquire into competency before warrant issues);

Mo. Sup. Ct. R. 30.30(f) (90- to 120-day warrant period); Tex. Code Crim. Proc. Art.

43.141(c) (minimum 91-day warrant period).

In this case, the state courts’ refusal to contend with the ECA’s impossible time

constraints was an error of constitutional significance. Because Georgia’s truncated

timeframe does not provide constitutionally sufficient safeguards and presents an

unacceptable risk of wrongful execution of an incompetent prisoner, this Court must

intervene.

III.

The Speculative Possibility of a Stay of Execution is an

Illusory Remedy Insufficient to Deprive the Lower Courts of

Montana law dictates that execution incompetency proceedings must be

handled in the same manner as trial incompetency proceedings. Mont. Code § 46-19201.

15 North Carolina applies the same statutory framework to trial incompetency

and execution competency claims. See N.C. Gen. Stat. § 15A-1001(a) (“No person may

be tried, convicted, sentenced, or punished for a crime when by reason of mental

illness or defect he is unable to understand the nature and object of the proceedings

against him, to comprehend his own situation in reference to the proceedings, or to

assist in his defense in a rational or reasonable manner. This condition is hereinafter

referred to as ‘incapacity to proceed.’”).

Subject Matter Jurisdiction or to Cure the Constitutional

Defects with the ECA.

Implicitly acknowledging that ten to twenty days does not afford enough time

to develop and present a Ford claim, 16 the superior court concluded that the ECA

does not inflict constitutional injury, and that Mr. Heidler cannot claim any violation

of his constitutional rights, because the relevant statutes do not “preclude[]” him from

requesting a stay of execution. Pet. App. 13a. See also id. (“the Court can discern no

legal impediment, at least not one created by the relevant statutes, to an applicant

requesting a stay of execution”). According to the lower court, the ECA would only

offend the Constitution if it expressly forbade an incompetent prisoner from seeking

a stay.

In these circumstances, to protect against the unacceptable risk of wrongful

execution, the Constitution requires more. In concluding that the mere opportunity

to request a stay deprived the court of subject matter jurisdiction or cures the ECA’s

constitutional defects, the lower court relied on an illusory remedy that in practice is

inadequate to protect Mr. Heidler’s constitutional rights. For several reasons, the

superior court’s order reflects a failure to meaningfully confront the constitutional

problems posed by the ECA and a willful blindness to the realities of stay litigation

in Georgia.

16 See Pet. App. 12a (stressing that the ECA “does not mandate a specific

timeframe for the entire course of proceedings”); Pet. App. 14a (“nothing in the

relevant statutes mandates that the trial court must conduct the proceedings within

the 10 to 20 days of the filing of the application”).

First, unlike other states’ frameworks, the ECA does not set forth any

standards dictating the circumstances under which the trial court must grant a stay

in consideration of a pending Ford claim. In fact, only one provision in the ECA

addresses a stay at all, and even then, only by implication. O.C.G.A. § 17-10-68(e) (“If

the court denies the application…any stay presently entered under this article shall

be dissolved…”).

In contrast, other states mandate a stay when a Ford claim is filed, when a

threshold showing is established, 17 or when necessary to ensure adequate time to

make a determination of incompetency. See, e.g., Cal. Pen. Code § 3701(a) (“[t]he

incarcerated person’s execution may not proceed until the court’s inquiry into the

incarcerated person’s competence to be executed is complete”) (emphasis added); Fla.

Stat. § 922.07(1) (governor must stay execution when informed that a deathsentenced individual “may be insane”); Kan. Stat. § 22-4006(a) (stay must be granted

where “there is sufficient reason to believe that the convict is insane”); Mo. Stat. §

552.060(2) (governor must stay execution if there is “not sufficient time” for a

“determination of the [prisoner’s] mental condition”); Neb. Stat. § 29-2537(2)

(mandatory stay provided prisoner shows “sufficient reason” to warrant competency

17 The Court made clear in Panetti that “once a prisoner seeking a stay of

execution” makes a threshold showing of incompetency, the procedural protections to

which he is constitutionally entitled are triggered. Panetti, 551 U.S. at 949 (citing

Ford, 477 U.S. at 424-27) (Powell, J., concurring). Accordingly, Georgia’s failure to

ensure that a stay is granted upon a threshold showing deprives Mr. Heidler of these

protections and ultimately exposes him to the risk of wrongful execution.

evaluation); Tex. Code Crim. Proc. Art. 46.05(g) (mandatory stay upon threshold

showing); Wyo. Stat. § 7-13-902(a) (mandatory stay upon threshold showing); Fla. R.

Crim. P. 3.811(c) (mandatory stay where court “has reasonable grounds to believe a

prisoner is insane to be executed”). 18

As these examples illustrate, states vary somewhat in terms of the decisionmaker vested with the authority to grant a stay, the stage(s) in the Ford adjudication

process at which a stay must be granted, the language used to describe the threshold

showing required (if any) to trigger a stay, and/or whether a mandatory stay is

triggered by the strength of specific standards dictating when and on what grounds

a stay must be granted, to protect against the risk of wrongful execution and to ensure

an accurate determination of Ford incompetency.

Georgia’s statutory scheme lacks these essential standards. In fact, the ECA

only addresses stays of execution by implication, and even then, only to dictate when

they must be dissolved (not when they must be granted). Where the possibility of a

stay represents the only safeguard against an unconstitutionally truncated

proceeding and a wrongful execution, Georgia’s failure to address the circumstances

under which a Ford stay must be granted is a constitutionally intolerable omission.

Second, exacerbating the ECA’s lack of Ford-specific stay standards, Georgia’s

legal standard for granting a stay of execution in any context is itself unclear. There

18 Fla. Stat. § 922.07(1) and Fla. R. Crim. P. 3.811(c) apply at different stages

of Florida’s incompetency determination scheme. Nevertheless, a stay is mandatory

at both stages, provided the requisite showing is made.

are very few reasoned decisions from the Supreme Court of Georgia discussing the

standard for granting a stay of execution. Georgia’s high court has not conclusively

articulated the standard for granting a stay in all circumstances and has not specified

whether the standard differs based upon the nature of the proceeding in which the

stay is sought. See Owens v. Hill, 295 Ga. 302, 307 (2014) (suggesting that stay

standard may differ depending on whether stay is sought in ancillary civil litigation

versus as a direct attack on the trial court’s execution order but declining to expound

upon the significance of the difference); Zant v. Dick, 249 Ga. 799, 799 (1982) (stay

standard equivalent to interlocutory injunction test in some, but perhaps not all,

circumstances).

This lack of clarity in Georgia’s decisional law means that, to secure the careful

and deliberative Ford procedure to which he is constitutionally entitled, a person like

Mr. Heidler must make—and the trial court must consider—a stay request without

the benefit of provisions within the ECA tailoring the stay inquiry to the

incompetency context, and against the backdrop of Georgia Supreme Court precedent

that is at best ambiguous as to the showing required to forestall execution. Where the

risk of error is wrongful execution, such uncertainty is constitutionally

impermissible.

And finally, recent history teaches that stay requests are rarely granted by

Georgia courts. Of course, stays of execution are never available as a matter of right.

Barber v. Governor of Alabama, 73 F.4th 1306, 1317 (11th Cir. 2023) (“[e]ven when

life or death interests are at stake, [] a stay of execution is an extraordinary remedy”)

(citing Hill v. McDonough, 547 U.S. 573, 584 (2006)). But in Georgia, given the legal

ambiguity surrounding the stay standard and courts’ reluctance to grant stay

requests in practice, a stay of execution, for a Georgia prisoner, is at best a remote

possibility, and at worst an illusory remedy. Since 2010, Georgia has scheduled 45

executions. 19 In only one of these cases did a habeas court—the same court 20 to which

Mr. Heidler must present his request for a Ford stay—grant a stay. 21

A mechanism relied upon to protect against the risk of wrongful execution is

constitutionally inadequate when data demonstrate that it works in scarcely more

than 2% of cases. 22 The Constitution requires more before the State takes the life of

19 The Death Penalty Information Center began publishing data on stays of

execution and outcomes of execution warrants in 2010. This data is available at

https://deathpenaltyinfo.org/executions/upcoming-executions by navigating to “Stays

of Execution” and/or “Outcomes of Warrants” for the relevant year. See also Brief in

Opposition to Defendants’ Motion to Dismiss at 16-18, Heidler v. Carr, et al., No.

24CV8914 (April 7, 2025); Hr’g Tr. at 31, id. (Jan. 28, 2026) (for a more detailed

discussion of the stay data).

20 See O.C.G.A. § 17-10-63(1) (dictating that a Ford application must be filed

in the jurisdiction of the applicant’s confinement).

21 The habeas court granted a stay to petitioner Nicholas Tate upon the filing

of his initial habeas petition. Mr. Tate had previously attempted to waive his appeals.

See Ford v. Tate, 307 Ga. 383, 383 (2019).

22 Data on Ford-specific stays in Georgia are virtually nonexistent, given the

rarity with which execution incompetency claims are raised in the state. In fact, in

the nearly four decades since the ECA’s enactment, counsel is aware of only one other

case presented to the Supreme Court of Georgia regarding incompetency to be

executed. In Rhode v. Upton, Case No. S11W0142 (Ga. 2010), counsel for Brandon

Rhode sought a stay of execution to pursue a potential claim of incompetency, rather

than in consideration of a previously filed Ford claim, after Mr. Rhode attempted

suicide on the day of his scheduled execution.

an incompetent prisoner. In this case, the lower court failed to account for the

constitutional infirmities in Georgia's framework for determining incompetency to be

executed claims. This Court's review is essential to ensure that Georgia does not

execute an incompetent person in violation of the Eighth and Fourteenth

Amendments to the United States Constitution.

CONCLUSION

For the reasons set forth above, Mr. Heidler respectfully requests that this

Court grant certiorari to ensure that Georgia's statutory procedures for determining

competency to be executed claims comport with the United States Constitution.

Respectfully submitted,

Anna Arceneaux (Ga. 401554)*

Georgia Resource Center

104 Marietta Street NW, Suite 260

Atlanta, Georgia 30303

Phone: 404-222-9202

Zack Greenamyre

Mitchell, Shapiro, Greenamyre

AndFunt LLP

881 Piedmont Avenue

Atlanta, Georgia 30303

Phone: (404) 812-4747

COUNSEL FOR PETITIONER,

JERRY SCOTT HEIDLER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.