Emergency Application — Daniel O. Conahan, Jr., Petitioner v. Florida

***CAPITAL CASE***

DOCKET NO. ______

IN THE SUPREME COURT OF THE UNITED STATES

═════════════════════════════════

DANIEL OWEN CONAHAN, JR.,

Petitioner,

vs.

STATE OF FLORIDA.

Respondent.

═════════════════════════════════

APPLICATION FOR A STAY OF EXECUTION

AND EXPEDITED CONSIDERATION OF PETITION FOR WRIT OF

CERTIORARI

DEATH WARRANT SIGNED

EXECUTION SET SEPTEMBER 10, 2026 at 6:00 P.M.

═════════════════════════════════

To the Honorable Clarence Thomas, Associate Justice of the Supreme Court

of the United States and Circuit Justice for the Eleventh Circuit:

Daniel O. Conahan, Jr. is scheduled to be executed September 10, 2026, at

6:00 PM EDT. This Court is Mr. Conahan’s last opportunity to access Florida’s

statutory procedures for testing available DNA evidence that could prove Mr.

Conahan’s long maintained innocence, undermine his death sentence, and/or identify

an alternative suspect. Mr. Conahan sought a stay of execution from the Florida

Supreme Court. On September 3, the Florida Supreme Court affirmed the Charlotte

County Circuit Court’s denial of his request for DNA testing pursuant to Fla. R. Crim.

P. 3.853. Conahan v. State, SC2026-1234, SC2026-1236, SC2026-1281, SC2026-1282,

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2026 WL 2603686 (Sept. 3, 2026).

Mr. Conahan respectfully requests a stay of execution pending this Court’s

disposition of his Petition for a Writ of Certiorari (“Petition”), filed simultaneously

with this Application, and expedited consideration of the Petition.

JURISDICTION

This Court has jurisdiction to entertain Mr. Conahan’s Petition and this

Application for a Stay of Execution under 28 U.S.C. §§ 1257(a) and 1651(a).

BACKGROUND

Daniel Owen Conahan, Jr. was convicted of one count of first-degree murder

and one count of kidnapping for the death of Richard Montgomery and sentenced to

death based only on circumstantial evidence. (T. 2016)

On April 17, 1996, Mr. Montgomery was found in a wooded area in Charlotte

County, Florida, which was described as what appeared to be a dumping area that

contained a lot of trash. Mr. Montgomery was naked, his genitalia was removed, and

there were several ligature marks on his neck, wrists, abdomen, and legs. (T. 752,

792) He was covered only with a piece of carpet padding. Mr. Montgomery was last

seen less than 24 hours before his body was discovered.

There were no eyewitnesses linking Mr. Conahan to the crime and no direct

evidence has ever linked Mr. Conahan to the crime. Mr. Conahan has steadfastly

maintained his innocence for nearly 40 years and should be allowed to test material

items of evidence that were collected as part of the criminal investigation that led to

his wrongful conviction and sentence of death. Absent immediate intervention from

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this Court, a wrongful execution will occur on September 10, 2026.

In March 2025, Mr. Conahan sought DNA testing to conclusively establish his

innocence. After he filed his motion, the State produced five reports from the Florida

Department of Law Enforcement establishing that the State had been conducting its

own testing of items collected in the investigation. Mr. Conahan then sought the case

file of the testing. While he was litigating access to the records and his motion for

DNA testing was pending, on August 11, 2026, Governor DeSantis signed his death

warrant, setting his execution for September 10.

Within approximately 24 hours of the warrant, the state postconviction court

issued an order denying his public records demands and an order summarily denying

his motion for DNA testing. While the State had continued to test comparable items—

including extracts from hairs and cigarette butts found at the scene—the court

determined Mr. Conahan was not entitled to test the hair and cigarette extracts he

identified because they are not the type of evidence that is probative of identity and

lead to an exoneration.

The court’s opinion ignores the fact that the State’s case was built on

circumstantial evidence which has fallen apart in postconviction and that the State

argued at trial that the DNA on the hair could inculpate Mr. Conahan. Further, the

court’s denial of his challenge to Florida’s surprise and truncated warrant process

ignores that the application of Florida’s unconstitutional warrant process directly

injured his ability to litigate his pre-warrant claims and effectively investigate new

claims under warrant.

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REASONS FOR GRANT THE STAY

An application for stay of execution is evaluated under the familiar four factor

test that analyzes:

(1) whether the stay applicant has made a strong showing

that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured

absent a stay;

(3) whether issuance of the stay will substantially injure

the other parties interested in the proceeding; and

(4) where the public interest lies.

Nken v. Holder, 556 U.S. 418, 434 (2009). For the reasons discussed below, a stay is

appropriate here.

A.

Mr. Conahan has shown a reasonable likelihood of success on

the merits of his claims.

The arbitrary hurdles erected by the Florida state courts to Mr. Conahan’s

access to Florida statutory procedures for obtaining DNA testing run afoul of the Due

Process Clause of the Fourteenth Amendment as set forth in this Court’s precedents,

as summarized in the Question Presented in the Petition:

Whether Florida’s imposition of a heightened burden of

proof at the pleading stage violated Petitioner’s right under

Florida law to DNA testing that would demonstrate his

innocence thereby depriving Petitioner of due process and

rendering illusory his state-created right to prove his

innocence through newly discovered evidence.

The Question Presented in Mr. Conahan’s Petition is cert-worthy and he is

likely to prevail on the merits. This Court has recognized the critical importance of

DNA in cases like Mr. Conahan’s: “DNA testing has an unparalleled ability to both

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exonerate the wrongly convicted and to identify the guilty.” Dist. Attorney’s Office for

Third Jud. Dist. v. Osborne, 557 U.S. 52, 55 (2009). Likewise, as detailed in the

Petition, this Court has explicitly recognized that capital prisoners have a liberty

interest in obtaining DNA testing (see Gutierrez v. Saenz, 606 U.S. 305 (2025);

Skinner v. Switzer, 562 U.S. 521 (2011); Osborne, 557 U.S. 52) and a property interest

in not being arbitrarily denied access to state-created investigatory procedures. See

Logan v. Zimmerman Brush, 455 U.S. 422 (1982).

More recently, at least three members of this Court have expressed concern

with procedural obstacles to DNA testing when a prisoner faces imminent execution.

See Reed v. Goertz, 146 S. Ct. 936, 939 (2026) (Sotomayor, J., dissenting from the

denial of certiorari). This case is arguably even more straightforward than Gutierrez

and Reed because it is before this Court on a petition for certiorari from a state

supreme court rather than to a federal district court on a § 1983 action. As in Reed,

it is “inexplicable” why the State of Florida “refuses to allow DNA testing” of evidence

that is directly related to the underlying crimes “despite the very real substantial

possibility that such testing could exculpate” Mr. Conahan “and identify the real

killer.” Id.

In light of these expressions of concern by several Justices, and to ensure that

the Court gives the Petition due consideration, Mr. Conahan also respectfully

requests that these papers be treated as a motion for expedited consideration of the

Petition. See Eric M. Freedman, No Execution if Four Justices Object, 43 Hofstra L.

Rev 639, 655 n. 67 (2015).

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The denials of due process to Mr. Conahan ahead of his scheduled execution

are blatant and apparent. Under these circumstances, there is a reasonable likelihood

that four members of this Court would vote to grant certiorari.

B.

There can be no dispute that Mr. Conahan will suffer

irreparable harm absent a stay.

Mr. Conahan faces the ultimate deprivation. See Ford v. Wainwright, 477 U.S.

399, 411 (1986) (An “execution is the most irremediable and unfathomable of

penalties.”); see also Woodson v. North Carolina, 428 U.S. 280, 305 (1976). There can

be no dispute that Mr. Conahan will suffer irreparable harm unless this Court stays

his execution pending disposition of his Petition.

As this Court has recognized for years, “the penalty of death is different in kind

from any other punishment imposed under our system of criminal justice.” Gregg v.

Georgia, 428 U.S. 153, 187 (1976). As a result, this Court has also established a need

for heightened reliability in death sentences. See Caldwell v. Mississippi, 472 U.S.

320, 340 (1985) (quoting Woodson, 472 U.S. at 305).

Unfortunately, our system gets it wrong sometimes. Richard Glossip had nine

death warrants and three final meals before being granted relief by this Court last

year. See generally Glossip v. Oklahoma, 604 U.S. 226 (2025) (remanding for vacatur

of conviction and new trial). After almost thirty years on death row and being just

hours from death several times, Mr. Glossip was released from prison on bail pending

retrial. Jim Vertuno, Former Oklahoma death row prisoner freed from jail as he

awaits

retrial

in

1997

killing,

Associated

Press

(May

14,

2026),

https://apnews.com/article/oklahoma-richard-glossip-death-sentence-overturned6

execution-93cb95674a05161d219b2a54139d531f.

Mr. Conahan’s case has many similarities to Mr. Glossip’s. Both Mr. Conahan

and Mr. Glossip continuously maintained their innocence. See Glossip, 604 U.S. at

236. And in both cases, the reliability of the underlying convictions and death

sentences eroded after trial. Also in both cases, prosecutors failed to disclose evidence

about its main witness at trial (see id. at 237-28); here, the State failed to disclose

that its primary witness, Stanley Burden, was promised a letter in support of his

parole application for a sentence resulting from the rape of a 12-year-old boy. Mr.

Burden swore in an affidavit in postconviction that the State directed him to lie if he

was asked about a deal. (2PCR. 55-60)

Mr. Conahan does not ask to be declared innocent at this posture. Nor does he

ask to be released from prison. All he asks is for this Court to stay his imminent

execution so that this Court can review his meritorious claims, in which he seeks fair

access to Florida’s statutory procedures for testing available DNA evidence.

C.

The public interest lies in ensuring that the State does not end

a life without adequate due process.

It is a “fundamental legal principle that executing the innocent is inconsistent

with the Constitution.” Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J.,

concurring). It is equally unconstitutional to execute a person whose sentence is

unreliable.

When assessing the traditional equitable factors of the harm to the opposing

party and the public interest, “[t]hese factors merge when the Government is the

opposing party.” Nken, 556 U.S. at 435. Undoubtedly, the State of Florida has an

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interest in the enforcement of criminal judgments. Hill v. McDonough, 547 U.S. 573,

584 (2006). But Mr. Conahan seeks a stay of execution so that he can obtain

potentially exculpatory DNA testing which will take only weeks to complete. To

proceed with an execution without giving him that opportunity, guaranteed under

state law, would be contrary to the public interest. The State’s interest in executing

Mr. Conahan is premised upon the enforcement of the judgment and death sentence

being lawful. When, as here, a litigant demonstrates that the enforcement of such a

judgment would be unconstitutional, the public interest weighs in favor of the party

whose constitutional rights will be violated. United States v. Raines, 362 U.S. 17, 27

(1960) (“[T]here is the highest public interest in the due observance of all the

constitutional guarantees . . . .”). And any harm to the State in delaying Mr.

Conahan’s execution is minimal. Hartman v. Bobby, 319 F. App’x 370, 371-72 (6th

Cir. 2009).

The public has a strong interest in ensuring that the State does not end a life

without adequate due process—as it seeks to do here by denying Mr. Conahan

adequate access to statutory procedures that could ultimately demonstrate his

innocence.

D.

Mr. Conahan has not delayed in bringing his claim.

Finally, Mr. Conahan’s litigation timeline was dictated not by dilatory conduct

on his part, but by the State’s actions and the court’s improper handling of his

proceedings. Mr. Conahan sought DNA testing more than a year and a half prior to

the Governor’s signing of his execution warrant. The court did not even get the chance

to hear argument on the motion or hold an evidentiary hearing to address disputed

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issues of fact. Any delay cannot be held against Mr. Conahan.

It likewise cannot go unmentioned that the State has continued to conduct

DNA and forensic testing in this case while Mr. Conahan has been precluded from

conducting the same.

CONCLUSION

Accordingly, Mr. Conahan respectfully requests that the Court grant this

Application, stay his execution, expedite consideration of his Petition, and grant any

other relief that the Court may find just.

Respectfully submitted this the 7th day of September 2026.

/s/ Brittney N. Lacy

BRITTNEY N. LACY

Assistant CCRC-South

Fla. Bar No. 116001

lacyb@ccsr.state.fl.us

ccrcpleadings@ccsr.state.fl.us

*Counsel of Record

Member of the Supreme Court Bar

YIITSODIRAH FINAL

Staff Attorney

Fla. Bar No. 1058816

finaly@ccsr.state.fl.us

CAPITAL COLLATERAL REGIONAL

COUNSEL – SOUTH

110 SE 6th Street, Suite 701

Fort Lauderdale, FL 33301

Tel. (954) 713-1284

COUNSEL FOR PETITIONER

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