`CAPITAL CASE
`EMERGENCY PETITION; EXPEDITED CONSIDERATION REQUESTED
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`In the SUPREME COURT of the UNITED STATES
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`──────────────────────────────────
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`In re: COMMISSIONER, Alabama Department of Corrections
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`DOMINEQUE HAKIM MARCELLE RAY,
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`Plaintiff–Appellant,
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`v.
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`COMMISSIONER, Alabama Department of Corrections
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`Defendant–Appellee.
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`──────────────────────────────────
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`STATE’S RESPONSE TO OPPOSITION TO EMERGENCY MOTION
`AND APPLICATION TO VACATE STAY OF EXECUTION
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`════════════════════════════════════════
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`Steve Marshall
`Attorney General
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`Richard D. Anderson
`Assistant Attorney General
`Counsel of Record *
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`Office of the Attorney General
`501 Washington Avenue
`Montgomery, Alabama 36130-0152
`randerson@ago.state.al.us
`(334) 353-3637 Fax
`(334) 242-7300
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`EXECUTION SCHEDULED THURSDAY, FEBRUARY 7, 6:00 P.M. C.S.T.
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`February 7, 2019
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`Counsel for Domineque Ray having filed their opposition to the State’s
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`emergency motion and application to vacate the Eleventh Circuit’s stay of Ray’s
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`execution, currently scheduled for 6 p.m. this evening, the State offers a brief
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`response.
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`I.
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`The affidavit of Jefferson S. Dunn should be considered as a matter of
`equity.
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`Ray argues that the affidavit of Commissioner Jefferson S. Dunn should not
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`be considered by this Court in evaluating the State’s motion to lift the stay of
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`execution imposed by the Eleventh Circuit Court of Appeals.1 But as the State
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`explained in its initial motion and explains further below, the Eleventh Circuit’s last-
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`minute stay should be vacated, regardless whether this Court also considers
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`Commissioner Dunn’s affidavit. Ray never satisfied his initial burden as to Claims
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`1 and 2 of his petition, which were that RLIUPA required the State to (1) exclude
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`the Holman chaplain (an ADOC employee) from the execution chamber and
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`(2) allow Ray to bring his own non-ADOC-employee spiritual adviser into the
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`execution chamber. And Ray’s third claim—that the Establishment Clause requires
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`the State to exclude the Holman chaplain from the execution chamber—was mooted
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`before the Eleventh Circuit ever granted its stay because the State has agreed to
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`exclude the Holman chaplain from the execution chamber.
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`1. Opposition to State’s Emergency Motion at 2–3.
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`1
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`In any event, the Court has the discretion and should consider Commissioner
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`Dunn’s affidavit. Stays of execution are matters of equity, and as shown in the
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`State’s motion, the Eleventh Circuit improperly held the State to an evidentiary
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`burden not imposed on the Petitioner when it determined that Ray was “substantially
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`likely to succeed on the merits” of his claims. As argued in the State’s motion, the
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`State’s inability to offer the full evidentiary basis for its compelling governmental
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`interests in maintaining the safety and security of execution proceedings was
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`dictated by Ray’s delay raising what is, in effect, a challenge to the procedures
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`surrounding his execution.
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`Further, because this Court is making an equitable determination when
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`evaluating the propriety of the stay imposed by the Eleventh Circuit and the State’s
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`motion to lift that stay, it is not improper for this Court to consider the certain fact
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`that had Ray’s action been brought in a timely manner, the State would have been
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`able to offer substantial evidence supporting the necessity of strictly regulating
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`access to the one place in Holman Prison where the State’s most solemn, serious,
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`and sensitive duties are carried out. During the initial motions hearing in district
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`court, held less than seventy-two hours after the State received service of Ray’s
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`RLUIPA action, the district court noted the “strong equitable presumption that arises
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`when you wait to raise a substantial issue in an execution case that cannot be resolved
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`2
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`without a full hearing prior to the execution.”2 Ray’s late filing deprived the State of
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`a reasonable opportunity to present the district court with the present affidavit just
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`as it deprived the State of a reasonable opportunity for “a full hearing and a full
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`trial.”3 In weighing the equities in this matter, there is no impropriety in this Court
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`considering the affidavit, if not for its substance then for the purpose of determining
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`whether the State would have been able to offer the requisite evidentiary support
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`absent the urgency created by Ray’s delay in bringing this action.
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`Moreover, to the extent that Ray relies on Cullen v. Pinholster4 for the
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`proposition that this Court should not consider the State’s affidavit, his reliance is
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`misplaced. In Cullen, this Court was reviewing a state court’s merits determination;
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`pursuant to AEDPA and this Court’s precedent, review “under § 2254(d)(1) focuses
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`on what a state court knew and did.”5 Thus, in Cullen, it made perfect sense to restrict
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`the federal court’s review to matters that were placed before the state courts. But that
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`is not the case here. Here, this Court is called on to review not a finding of fact by a
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`state court, but rather an equitable determination by a federal court. Moreover, in
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`granting equitable relief in the present case, the Eleventh Circuit improperly held the
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`State to an evidentiary standard that it did not apply to Ray. Finally, Ray’s RLUIPA
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`2. Hearing Transcript at 8, Ray v. Dunn, 2:19-cv-00088-WKW-CSC (M.D. Ala. Jan.
`31, 2019).
`3. Id. at 21.
`4. 563 U.S. 170, 182 (2011).
`5. Id.
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`3
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`action was delayed until the last moment, impairing the State’s ability to respond
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`with an affidavit, or any other evidentiary showing, in district court. This Court has
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`condemned “last-minute attempts to manipulate the judicial process” and held that
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`“[a] court may consider the last-minute nature of an application to stay execution in
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`deciding whether to grant equitable relief.”6 Under the present circumstances, this
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`Court’s consideration of the State’s affidavit, if only as an indication of what the
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`State would have been able to show in district court absent the eleventh-hour nature
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`of this action, is not improper.
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`II. The Eleventh Circuit improperly shifted the burden to the State.
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`Ray fails to address the State’s argument that the Eleventh Circuit improperly
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`shifted the burdens in this matter. Pursuant to RLUIPA, Ray’s initial burden was to
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`demonstrate that the ADOC’s policy of restricting access to the execution chamber
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`resulted in a “substantial burden” on his religious exercise. In the district court, Ray
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`offered nothing beyond mere assertions that this was so. Perhaps more importantly,
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`the Eleventh Circuit also shifted Ray’s burden onto the State by effectively requiring
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`the State to show that it was substantially likely to succeed on the merits of Ray’s
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`RLUIPA claim. Instead of holding Ray to his burden, the Eleventh Circuit
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`mistakenly applied the State’s burden to disprove a substantive claim at an
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`6. Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992).
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`4
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`evidentiary hearing and granted the stay because “Alabama has presented us with
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`nothing in support of its claims.”7 But when considering the stay request, it was Ray
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`who had the burden of demonstrating a substantial likelihood of success, not the
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`State. The district court, on the other hand, properly held that to obtain a stay of
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`execution, Ray had to establish a substantial likelihood that he would prevail on the
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`merits. Ray also failed in this regard because he did not show that it was substantially
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`likely that the State could not justify its policies.
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`Nonetheless, in granting Ray’s motion to stay, the Eleventh Circuit waived
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`Ray’s threshold burden, noting merely that it “need not decide” whether Ray’s
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`assertions were sufficient. The Court then proceeded to grant Ray the requested
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`equitable relief because the State also relied on assertions in responding to Ray’s
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`eleventh-hour RLUIPA action. Thus, the Eleventh Circuit relieved Ray of his
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`threshold burden under RLUIPA but held the State to its responsive burden. This
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`impermissible burden shifting was an abuse of the Eleventh Circuit’s discretion. As
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`the district court properly held, Ray failed to sustain his burden of proving a
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`substantial likelihood of success on the merits of his RLUIPA claim. This Court
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`should therefore grant the State’s motion to vacate the stay entered by the Eleventh
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`Circuit.
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`7. Ray v. Comm’r, No. 19-10405, at 18, 22 (11th Cir. Feb. 6, 2019).
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`5
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`III. The Holman chaplain will not be present in the execution chamber during
`Ray’s execution, and Ray has received a Qur’an.
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`Ray draws this Court’s attention to language inadvertently included in the
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`State’s original motion due to a scrivener’s error and removed in the amended
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`motion concerning whether the chaplain of Holman Correctional Facility will be
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`present during his execution.8 The removed language is not the position of the
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`Alabama Department of Corrections, which is why the State filed an amended
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`motion. There has been no change to the ADOC’s policy. As the ADOC made plain
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`in the district court, however, because of Ray’s religious beliefs, the ADOC has
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`agreed to exclude the chaplain from the execution chamber for Ray’s execution.
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`Ray also mentions a motion filed late last night regarding the ADOC’s alleged
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`refusal to allow him to have a copy of the Qur’an in his holding cell.9 It is the State’s
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`understanding that a copy of the Qur’an was available to Ray—who, incidentally,
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`had been permitted to bring his prayer mat into the holding cell—but that Ray had
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`not requested the Qur’an. Instead, he filed a motion, which was quickly resolved this
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`morning. The motion has since been withdrawn.
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`8. Opposition to State’s Emergency Motion at 9.
`9. Id. at 9–10.
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`6
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`CONCLUSION
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`The State respectfully requests that this Honorable Court vacate the stay of
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`execution.
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`Respectfully submitted,
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`Steve Marshall
`Alabama Attorney General
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`s/Richard D. Anderson
`Richard D. Anderson
`Assistant Attorney General
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`7
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`CERTIFICATE OF SERVICE
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`I hereby certify that on this 7th day of February 2019, I did serve a copy of
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`the foregoing on the attorneys for Domineque Ray by electronic mail, addressed as
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`follows:
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`John Palombi
`John_Palombi@fd.org
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`Spencer J. Hahn
`Spencer_Hahn@fd.org
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`s/Richard D. Anderson
`Richard D. Anderson
`Assistant Attorney General
`Counsel of Record *
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`_
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`State of Alabama
`Office of the Attorney General
`501 Washington Avenue
`Montgomery, Alabama 36130-0152
`(334) 242-7300
`(334) 353-3637 Fax
`randerson@ago.state.al.us
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`8
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