Roane et al v. Gonzales et al

RESPONSE to 2 MOTION to Stay, MOTION for Preliminary Injunction Barring Their Execution

D.D.C.February 13, 2006

1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JAMES H. ROANE, JR., et al., ) Plaintiffs, ) v. ) Case No. 1:05-CV-2337 (RWR) ) ALBERTO GONZALES, et al., ) ) Individually and in their ) Official Capacities, ) ) Defendants. ) ) DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO STAY THE PROCEEDINGS AND TO PRELIMINARILY ENJOIN THE UNITED STATE FROM CARRYING OUT THEIR EXECUTIONS The plaintiffs are federal death row prisoners whose capital murder convictions and death sentences have been affirmed on direct review and whose first motions for federal collateral relief under 28 U.S.C. 2255 have been denied. See United States v. Tipton, 90 F.3d 861 (4th Cir. 1996) (direct appeal), cert. denied, 520 U.S. 1253 (1997); United States v. Roane, 378 F.3d 382 (4th Cir. 2004) (Section 2255 review), cert. denied, 126 S. Ct. 38, 330 (2005). Plaintiffs are presently scheduled to be executed on May 8 (Tipton), May 10 (Johnson), and May 12 (Roane), 2006. On December 1, 2005, plaintiffs filed a Bivens action for declaratory and injunctive relief, claiming, inter alia, that the Bureau of Prison’s protocol for Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 1 of 6 2 carrying out executions by means of lethal injection was unconstitutional because the composition of the chemicals used constituted a cruel and unusual punishment. Thereafter, on January 25, 2006, the Supreme Court granted certiorari in Hill v. Crosby, No. 05-8794, raising the question whether an action brought by a death- sentenced State prisoner under 42 U.S.C. 1983 challenging the constitutionality of the chemicals utilized for carrying out his execution should be recharacterized as a federal habeas corpus action under 28 U.S.C. 2254 and, thus, subjected to the Antiterrorism and Effective Death Penalty Act’s stringent jurisdictional limitations on successive habeas petitions. See 28 U.S.C. 2244(b)(2). In light of the certiorari grant in Hill, plaintiffs filed a motion on February 2, 2006, requesting that this Court stay the instant proceedings pending the Supreme Court’s resolution of Hill and, in addition, preliminarily enjoin the United States from carrying out their presently scheduled executions. The defendants, all United States officers or employees, reluctantly concur that the proceedings should be stayed and plaintiffs’ executions enjoined pending the Supreme Court’s disposition of Hill. As plaintiffs state in their supporting memorandum, “the Supreme Court’s decision in Hill is likely to control the question of this Court’s jurisdiction over this case.” Memorandum In Support of Plaintiffs’ Motion for a Stay, at 2. See also, id. at 4 (same). And, “[b]ecause the Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 2 of 6 3 Supreme Court could render a decision in Hill that would preclude this Court from exercising jurisdiction in this matter” by holding that actions like that filed by plaintiffs must be treated as successive habeas corpus petitions (or successive motions for collateral review under Section 2255), plaintiffs note that “it would be a waste of judicial resources * * * to proceed with this action before Hill is decided.” Id. at 4. Finally, plaintiffs point out that Hill is scheduled for oral argument before the Supreme Court on April 29, 2006, making it highly unlikely that the case will be decided by the time of plaintiffs’ executions that are now scheduled for the week of May 8-12, 2006. Hence, unless their executions are temporarily enjoined, plaintiffs assert that will be deprived of benefits that “a favorable decision in Hill would afford them.” Ibid. The defendants agree with plaintiffs’ assessment regarding Hill’s likely jurisdictional impact on this case and that the Supreme Court’s decision may bar this Court from considering plaintiffs’ challenge to the constitutionality of the Bureau of Prison’s lethal injection protocol. Accordingly, United States agrees that further proceedings in this case – including the filing of the defendants’ answer to the complaint and the conduct of all discovery – should be stayed pending the Supreme Court’s decision in Hill. Furthermore, because it is extremely unlikely that the Supreme Court will decide Hill before plaintiffs’ now- Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 3 of 6 4 scheduled execution dates, the United States does not oppose the entry of an order that will temporarily enjoin plaintiffs’ executions until after Hill has been decided. WHEREAS, for the foregoing reasons, the defendants concur in plaintiffs’ motion to stay the proceedings and temporarily enjoin their executions pending the Supreme Court’s decision in Hill v. Crosby. Respectfully submitted. ALICE S. FISHER Assistant Attorney General G. WINGATE GRANT Assistant United States Attorney Eastern District of Virginia 600 E. Main Street, Suite 800 Richmond, VA 23219 /s/ Robert J. Erickson ROBERT J. ERICKSON D.C. Bar No. 220731 Principal Deputy Chief, Criminal Appellate Section U.S. Department of Justice Robert F. Kennedy Bldg., Rm. 1515 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Tel: (202) 514-2841 Fax: (202) 305-2121 Robert.Erickson@USDOJ.Gov Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 4 of 6 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the Defendants’ Response to Plaintiffs’ Motion to Stay the Proceedings and to Preliminarily Enjoin the United States from Carrying Out Their Executions were served this day by overnight delivery on plaintiffs’ counsel at the following addresses: Paul Enzinna Stephen Northup Timothy Loper Troutman Sanders LLP Baker & Botts, L.L.P. 1001 Haxal Point 1299 Pennsylvania Avenue Richmond, VA. 23219 Washington, D.C. 20004 Charles Z. Zdebski Denise LeBoeuf 401 9 Street, N.W.th 700 Camp Street Suite 1000 New Orleans, LA 70130 Washington, D.C. 20004-2134 Counsel for Roane Frederick R. Gerson. Robinson, Carl & Gerson 7102 Three Chopt Road Richmond, Virginia 23226 Counsel for Tipton Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 5 of 6 6 Edward E. Scher Thorsen & Scher, LLP 3810 Augusta Avenue Richmond, Virginia 23230-3910 Charles A. Zdebski 401 9 Street, N.W.th Suite 1000 Washington, D.C, 20004-2134 Barbara L. Hartung Suite 1600 700 East Main Street Richmond, Virgnia 23219 Counsel for Johnson Dated: February 13, 2006 /s/ Robert J. Erickson Robert J. Erickson D.C. Bar No. 220731 Principal Deputy Chief, Criminal Appellate Section Robert F. Kennedy Bldg, Room 1515 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Tel: (202) 514-2841 Fax: (202) 305-2121 Case 1:05-cv-02337-RWR-DAR Document 4 Filed 02/13/2006 Page 6 of 6