Cert Petitions Granted with Decision Pending

The Supreme Court has granted certiorari in the following cases involving issues of interest to capital habeas litigators:

Gamble v. United States, 17-646 (cert. petition granted June 28, 2018)
(case below: 11th Cir. (unpublished))

Question presented:

Whether the Supreme Court should overrule the "separate sovereigns" exception to the double jeopardy clause.

Royal v. Murphy, 17-1107 (cert. petition granted May 21, 2018)
(case below: 866 F.3d 1164 (10th Cir.))

Question presented:

Whether the 1866 territorial boundries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C. § 1151(a).

Click here to view the warden's certiorari petition.

Bucklew v. Precythe, 17-8151 (cert. petition granted April 30, 2018)
(case below: 883 F.3d 1087 (8th Cir.))

Questions presented: 

(1) Should a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? (2) Must evidence comparing a state’s proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? (3) Does the Eighth Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition? (4)  Whether petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

Click here to view the certiorari petition.  The fourth question was added by the Supreme Court. 

Madison v. Alabama, 17-7505 (cert. petition granted February 26, 2018)

Questions presented: On January 25, 2018, the State seeks for the second time to execute Vernon Madison, a 67-year-old man who has been on Alabama’s death row for over 30 years. Mr. Madison suffers from vascular dementia as a result of multiple serious strokes in the last two years, and no longer has a memory of the commission of the crime for which he is to be executed. His mind and body are failing: he suffers from encephalomacia (dead brain tissue), small vesselischemia, speaks in a dysarthric or slurred manner, is legally blind, can no longer walk independently, and has urinary incontinence as a consequence of damage to his brain.

The first time Mr. Madison was scheduled to be executed by the State of Alabama, in May, 2016, he challenged his competency in the state circuit court pursuant to the Alabama statute governing competency-to-be-executed claims. After the circuit court denied his claim, Alabama law prohibited any appeal in state court, and Mr. Madison challenged his claim in federal court. In granting habeas corpus relief, the Eleventh Circuit majority found that the evidence undisputably established that Mr. Madison had no memory of the offense, and all three judges, including the dissenting judge, agreed that he was incompetent to be executed. (footnote omitted.)

This Court reversed the Eleventh Circuit’s grant of habeas corpus relief and explicitly declined to address the “merits of the underlying question outside of the AEDPA context,” Dunn v. Madison, 138 S. Ct. 9, 12 (2017), as that question was not “[a]ppropriately presented.” Id. (Ginsburg, J., concurring).

With this Court’s opinion in hand, the State sought an expedited execution date, and Mr. Madison’s execution was scheduled for January 25, 2018. Mr.Madison once again petitioned the Mobile County Circuit Court for relief underthe same statutory provision, this time with new evidence that the court-appointed expert, Dr. Karl Kirkland, whose report the circuit court and this Court had previously relied on in denying Mr. Madison’s claim, had been suspended from the practice of psychology after his narcotics addiction led him to forge prescriptions for illegal pills (including one incident occurring just 4 days after Mr. Madison’s 2016 competency hearing) and eventually into drug rehab. Though the State never disclosed these facts to any court – the circuit court, the Alabama Supreme Court (footnote omitted) or this Court – while at the same time arguing for reliance on Dr. Kirkland to deny Mr. Madison’s claim, the circuit court again denied relief after a brief hearing and finding that Mr. Madison was competentto be executed. See Appendix A.

 With no available appeal in the Alabama state courts, Mr. Madison is again before this Court, this time “outside of the AEDPA context,” requesting that his execution be stayed and certiorari be granted to address the following two substantial questions: (1) Consistent with the Eighth Amendment, and this Court’s decisionsin Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? See Dunn v. Madison, 138 S. Ct. 9, 12 (Nov. 6, 2017)(Ginsburg, J., with Breyer, J., and Sotomayor, J., concurring).  (2)  Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution?

Click here to view Madison's certiorari petition.  The case will be argued on October 2, 2018.