7/27/2019 Sepulvado Stay Application and Appendix
1/133
App. No. ___
--------------------
In The
Supreme Court of the United States
--------------------
Christopher Sepulvado,
Petitioner,
v.
Bobby Jindal et al.,
Respondents.
--------------------
APPLICATION FOR STAY OF EXECUTION PENDING
DISPOSITION OF PETITION FOR A WRIT OF CERTIORARI
--------------------
7/27/2019 Sepulvado Stay Application and Appendix
2/133
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... ivI. INTRODUCTION .................................................................................................. 1II. BACKGROUND ..................................................................................................... 3
A. The National Drug Shortage And Its Effect On Execution Protocols. ........ 3B. Louisianas Continued Administration Of Executions................................. 5C. Louisianas Refusal To Disclose Its Execution Protocol ............................... 7D. Summary Of The Proceedings Below............................................................ 8E. Subsequent Events Establishing That The State Will Have To Revise Its
Protocol ......................................................................................................... 12III. REASONS FOR GRANTING THE STAY .......................................................... 17IV. PETITIONERS MOTION FOR A STAY OF EXECUTION WAS TIMELY ..... 23
V. THIS COURT HAS NEVER CONFRONTED THE QUESTIONPRESENTED IN THE PROCEDURAL POSTURE OF THIS CASE ............... 27
VI. CONCLUSION..................................................................................................... 32APPENDIX .................................................................................................................. 1a
Appendix A, Lundbeck Pentobarbital Distribution Program Press Release .... 1a
Appendix B, Lundbeck Pentobarbital Divestment Press Release ..................... 4a
Appendix C, First Request for Public Records ................................................... 7a
Appendix D, Response to First Request for Public Records ............................ 11a
Appendix E, Second Request for Public Records .............................................. 15a
Appendix F, Response to Second Request for Public Records ......................... 22a
Appendix G, Request for Administrative Remedies ......................................... 29a
Appendix H, Response to Request for Administrative Remedies .................... 32a
7/27/2019 Sepulvado Stay Application and Appendix
3/133
iii
Appendix I, Nembutal Inventory ...................................................................... 34a
Appendix J, January 16, 2014 E-mail from Carlos Finalet, III, General
Counsel, Louisiana Board of Pharmacy............................................................ 36a
Appendix K, January 16, 2014 E-mail from Jeffrey K. Cody, Counsel forLouisiana............................................................................................................ 38a
Appendix L, January 21, 2014 Letter from Gary Clements, Counsel for
Petitioner ........................................................................................................... 40a
Appendix M, January 22, 2014 E-mail from James L. Hilburn, Counsel for
Louisiana............................................................................................................ 43a
Appendix N, January 24, 2014 Letter from James L. Hilburn, Counsel for
Louisiana............................................................................................................ 45a
Appendix O, Supplemental Responses to Plaintiffs First Set of
Interrogatories to Defendants ........................................................................... 47a
Appendix P, Affidavit of Larry D. Sasich, PharmD, MPH, FASHP ................ 57a
7/27/2019 Sepulvado Stay Application and Appendix
4/133
iv
TABLE OF AUTHORITIES
CasesAke v. Oklahoma,
470 U.S. 68 (1985) .................................................................................................... 19Arthur v. Thomas,
No. 2:11-CV-0438-MEF, 2013 WL 5434694 (M.D. Ala. Sept. 30, 2013) ................... 5
Baze v. Rees,
553 U.S. 35 (2008) ............................................................................................ passim
Beardslee v. Woodford,
395 F.3d 1064 (9th Cir. 2005) .................................................................................. 23
Beaty v. Brewer,
131 S. Ct. 2929 (2011) .............................................................................................. 29
Beaty v. Brewer,649 F.3d 1071 (9th Cir. 2011), cert. denied, 131 S. Ct. 2929 .................................. 29
Beaty v. Brewer,
791 F. Supp. 2d 678 (D. Ariz. 2011), affd, 649 F.3d 1071 (9th Cir.), cert.
denied, 131 S. Ct. 2929 ............................................................................................ 29
Brewer v. Landrigan,
131 S. Ct. 445 (2010) .......................................................................................... 27, 28
Code v. Cain,
No. 138,860 (1st J.D.C. Mar. 23, 2011), writ denied, No. 09-0113 (La. Oct. 8,
2010); 46 So. 3d 1258. .............................................................................................. 22
Cooey v. Taft,430 F. Supp. 2d 702 (S.D. Ohio 2006) ..................................................................... 21
Ford v. Wainright,
477 U.S. 399 (1986) .................................................................................................. 18
Gomez v. U.S. Dist. Court for the N. Dist. of Cal.,
503 U.S. 653 (1992) .................................................................................................. 23
Gomez v. U.S. Dist. Court for the N. Dist. of Cal.,
966 F.2d 460 (9th Cir. 1992) .................................................................................... 21
Graves v. Barnes,
405 U.S. 1201 (1972) ................................................................................................ 17Gregg v. Georgia,
428 U.S. 153 (1976) .................................................................................................. 18
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) .................................................................................................. 11
7/27/2019 Sepulvado Stay Application and Appendix
5/133
v
Hobbs v. Jones,
412 S.W.3d 844 (Ark. 2012) ....................................................................................... 5
Holtzman v. Schlesinger,
414 U.S. 1304 (1973) ................................................................................................ 17
In re Holladay,
331 F.3d 1169 (11th Cir. 2003) ................................................................................ 21
In re Ohio Execution Protocol Litig.,
840 F. Supp. 2d 1044 (S.D. Ohio 2012), motion to vacate stay denied,671
F.3d 601 (6th Cir.), motion to vacate stay denied sub nom. Turner v. Epps,
132 S. Ct. 1306 ......................................................................................................... 22
In re Roche,
448 U.S. 1312 (1980) ................................................................................................ 17
Jones v. Bock,
549 U.S. 199 (2007) .................................................................................................. 24
Jones v. Hobbs,No. 5:10CV00065JLH, 2010 WL 1417976 (E.D. Ark. Apr. 5, 2010), affdsub
nom.,Williams v. Hobbs, 658 F.3d 842 (8th Cir. 2011) .......................................... 31
Landrigan v. Brewer,
625 F.3d 1132 (9th Cir. 2010), vacated, 131 S. Ct. 445 .................................... 21, 27
Landrigan v. Brewer,
No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. Oct. 25, 2010), affd,
625 F.3d 1144 (9th Cir.), vacated, 131 S. Ct. 445 ............................................. 22, 27
Mathews v. Eldridge,
424 U.S. 319 (1976) .................................................................................................. 19
Nelson v. Campbell,
541 U.S. 637 (2004) ............................................................................................ 10, 20
Oken v. Sizer,
321 F. Supp. 2d 658 (D. Md. 2004), stay vacated, 524 U.S. 916. ...................... 19, 30
Reid v. Covert,
354 U.S. 1 (1957) ...................................................................................................... 20
Rostker v. Goldberg,
448 U.S. 1306 (1980) ................................................................................................ 17
Sims v. Dept of Corr. & Rehab.,
157 Cal. Rptr. 3d 409 (Cal. Ct. App. 2013) ................................................................ 5
Sizer v. Oken,
542 U.S. 916 (2004) ............................................................................................ 29, 30
State v. Sepulvado,
No. 13-0098 (La. Jan. 23, 2013); 105 So.3d 59 .................................................... 8, 26
7/27/2019 Sepulvado Stay Application and Appendix
6/133
vi
University of Texas v. Camenisch,
451 U.S. 390 (1981) .................................................................................................. 11
Wainwright v. Booker,
473 U.S. 935 (1985) .................................................................................................. 20
Whitaker v. Livingston,
732 F.3d 465 (5th Cir. 2013), cert. deniedsub nom.,Yowell v. Livingston, 134
S. Ct. 417 (2013) ................................................................................................. 28, 29
Wilkinson v. Dotson,
544 U.S. 74 (2005) .................................................................................................... 24
Williams v. Hobbs,
133 S. Ct. 97 (2012) .................................................................................................. 31
Williams v. Hobbs,
658 F.3d 842 (8th Cir. 2011) .................................................................................... 32
Woodson v. North Carolina,
428 U.S. 280 (1976) .................................................................................................. 20
Yowell v. Livingston,
134 S. Ct. 417 (2013) .......................................................................................... 28, 29
Statutes21 U.S.C. 841 ............................................................................................................. 14
42 U.S.C. 1983 ................................................................................................... passim
42 U.S.C. 1997 ........................................................................................................... 24
La. Rev. Stat. Ann. 37:1285 (2007)........................................................................... 14
Regulations21 C.F.R. 1306.04 ...................................................................................................... 14
La. Admin. Code tit. 46, 1817 (2012)........................................................................ 13
La. Admin. Code tit. 46, 2309 (2012)........................................................................ 15
La. Admin. Code tit. 46, 2501 (2012)........................................................................ 13
La. Admin. Code tit. 46, 2535 (2012)........................................................................ 15
7/27/2019 Sepulvado Stay Application and Appendix
7/133
vii
Other AuthoritiesAnticipatory Motion to Lift Stay,Landrigan v. Trujillo,
131 S. Ct. 445 (No. 10-A416) .................................................................................... 27
Commission Implementing Regulation 1352/2011,
2011 O.J. (L 338) 31 ................................................................................................... 4
Compounding and the FDA: Questions and Answers,
U.S. Food & Drug Admin.,
http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Phar
macyCompounding/ucm339764.htm#approved ...................................................... 15
Deborah W. Denno,Lethal Injection Chaos Post-Baze,
102 Geo. L.J. (forthcoming 2014) ........................................................................... 3, 4
Emergency Application to Chief Justice to Vacate Stay of Execution,
Sizer v. Oken, 542 U.S. 916 (2004) (No. 03-A1023) ................................................. 30
FDA Approved Drug Products,U.S. Food & Drug Admin.,
http://www.accessdata.fda.gov/scripts/cder/drugsatfda/index.cfm ......................... 12
Manny Fernandez,Executions Stall as States Seek Different Drugs,
N.Y. Times, Nov. 8, 2013, at A1 ................................................................................ 4
First Amended and Supplemental Reconventional Demand for Declaratory
Judgment,
Code v. Dept. of Pub. Safety and Corr., No. C585410 (19th J.D.C. Jan. 22,
2010) ........................................................................................................................... 6
Frequently Asked Questions, Nembutal,
http://www.nembutal.net/faqs.php ...................................................................... 4, 13
Judgment, Code v. Dept. of Pub. Safety and Corr.,No. C585410 (19th J.D.C. Mar. 10, 2011) ................................................................. 6
La. State Penitentiary,Louisiana Execution Protocol(2013) .............................. 15, 16
Motion to Compel,Hoffman v. Cain,
No. 12-796-JJB-SCR (M.D. La. Oct. 21, 2013) ........................................................ 10
Notice of Disclosure,Schad v. Brewer,
No. 13-02001-ROS (D. Ariz. Oct. 5, 2013) ................................................................. 5
Number of Executions by State and Region Since 1976,
Death Penalty Info. Center, http://www.deathpenaltyinfo.org/number-
executions-state-and-region-1976 .............................................................................. 5
Opinion on Preliminary Injunction, Whitaker v. Livingston,
No. H-13-2901 (S.D. Tex. Oct. 5, 2013) ................................................................... 29
Order,Baze v. Thompson,
No. 06-CI-574 (Franklin Cir. Ct. Dec. 5, 2013) ......................................................... 5
7/27/2019 Sepulvado Stay Application and Appendix
8/133
viii
Order,Hill v. Owens,
No. 2013-CV-233771 (Ga. Sup. Ct. July 18, 2013), appeal docketed, No.
S14A0092 (Ga.) ................................................................................................... 21, 22
Order,State v. Irick,
No. M1987-00131-SC-DPE-DD (Tenn. Dec. 11, 2013) .............................................. 5
Petition for a Writ of Certiorari, Yowell v. Livingston,
134 S. Ct. 417 (2013) (No. 13-6809) ......................................................................... 28
Plaintiff Christopher Sepulvados Second Set of Requests for Production,
Hoffman v. Jindal, No. 3:12-cv-00796 (M.D. La. Jan. 7, 2014) .............................. 26
Press Release, Hospira, Hospira Statement Regarding Pentothal (Sodium
Thiopental) Market Exit (Jan. 21, 2011) ................................................................... 4
Respondents Brief in Opposition to Petition for Writ of Certiorari and
Application for Stay of Execution,
Yowell v. Livingston, 134 S. Ct. 417 (2013) (No. 13-6809)...................................... 28
Ruling on Motion for Protective Order,Hoffman v. Cain,No. 12-796-JJB-SCR (M.D. La. June 4, 2013) .......................................................... 9
Josh Sanburn, Ohios Lethal-Injection Experiment,
Time (Jan. 17, 2014),http://nation.time.com/2014/01/15/ohios-lethal-
injection-experiment .................................................................................................. 4
Supplemental Response to Motion to Vacate Stay,Brewer v. Landrigan,
131 S. Ct. 445 (No. 10-A416) .................................................................................... 27
Transcript, Code v. Dept. of Pub. Safety and Corr.,
No. C585410 (1st J.D.C. Feb. 22, 2011)..................................................................... 7
7/27/2019 Sepulvado Stay Application and Appendix
9/133
1
To the Honorable Justice Antonin Scalia, as Circuit Justice for the United
States Court of Appeals for the Fifth Circuit:
Petitioner Christopher Sepulvado (petitioner) respectfully requests a stay of
his execution, presently scheduled for February 5, 2014, pending this Courts
disposition of his petition for a writ of certiorari, filed on January 27, 2014. In the
alternative, petitioner requests that the Court issue an order directing that the
execution not be conducted in a manner that materially deviates from the execution
protocol previously disclosed to petitioner.
I. INTRODUCTIONThe Fifth Circuit held that petitioner has no due process right to know the
states protocol for executing him. Louisiana has separately produced a protocol in
June 2013 (the 2013 Protocol), but the state has already violated it. There is
moreover compelling evidence that the state will abandon its protocol altogether
because pentobarbital the sole drug specified is unavailable for use in
executions. Petitioner has asked the state to notify him of any changes it makes to
the protocol prior to his execution, but the state has not agreed to do so. To the
contrary and remarkably the state has gone back on its representation that it
would provide discovery regarding the nature and origin of the drugs that will be
used in the execution, stating that it is not required to provide that information to
petitioner until the day after he is executed.
7/27/2019 Sepulvado Stay Application and Appendix
10/133
2
This Courts four-part standard for granting a stay of execution is satisfied in
this case. First, there is a reasonable probability that four Justices will vote to
grant certiorari. As explained in petitioners parallel Petition for a Writ of
Certiorari, the Question Presented whether and to what extent the Due Process
Clause of the Fourteenth Amendment entitles a condemned inmate to timely notice
of the method by which he will be executed is a frequently arising legal question
that is the subject of significant disagreement among federal judges. Second, there
is a fair prospect that this Court will reverse the decision below. The Fifth Circuits
resolution of that question is irreconcilable with this Courts precedents. Due
process protects a condemned inmates interest in a humane death and affords him
the concomitant right to obtain the protocol by which he will be executed so that a
federal court may determine whether the execution will comport with the Eighth
Amendment. Without this protection, a state could make a last-minute decision to
use constitutionally unacceptable drugs, Baze v. Rees, 553 U.S. 35, 53 (2008)
(plurality opinion), that subject the inmate to excruciating pain in violation of the
Eighth Amendment. Third, petitioner will suffer irreparable harm if this stay
request is denied. And finally, the countervailing government interests are
minimal: the state does not have any legitimate interest in preventing courts from
reviewing the constitutionality of its execution protocol.
7/27/2019 Sepulvado Stay Application and Appendix
11/133
3
II. BACKGROUNDPetitioner is a condemned inmate, whose execution has been set for February
5, 2014. He was convicted of first-degree murder and sentenced to death in
Louisiana in 1993, and his conviction and sentence became final in 1996. Petitioner
timely sought information about the protocol that the state would use to execute
him. After the state repeatedly refused to disclose the protocol, including the drugs
it plans to use, petitioner joined this 1983 action alleging that the states
recalcitrance violates his due process rights. The district court agreed and granted
him a stay of execution, but the court of appeals reversed.
A. The National Drug Shortage And Its Effect On ExecutionProtocols
While every state that imposes the death penalty does so by lethal injection,
the landscape of lethal-injection protocols nationwide has changed dramatically
since this Court decidedBaze v. Rees, 553 U.S. 35 (2008). At the time ofBaze, every
death-penalty state used a protocol that called for lethal injection by a combination
of three drugs, including sodium thiopental. See Deborah W. Denno, Lethal
Injection Chaos Post-Baze, 102 Geo. L.J. (forthcoming 2014) (manuscript at 12),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328407. In
January 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental,
7/27/2019 Sepulvado Stay Application and Appendix
12/133
4
ceased manufacturing the drug entirely.1 As a result, at least seventeen states
switched to pentobarbital by 2013, either as part of a three-drug cocktail or as a
single dose. Id. at 31. In January 2011, Lundbeck, Inc., the only domestic
manufacturer of pentobarbital, adopted a policy prohibiting its distributors from
selling the drug to departments of corrections for use in executions. Stay App. 2a.
The last supplies of FDA-approved pentobarbital in possession of state departments
of correction therefore expired by the end of 2013. See Frequently Asked Questions,
Nembutal, http://www.nembutal.net/faqs.php (last visited Jan. 21, 2014) (listing
pentobarbitals shelf life at twenty-four months).
Given these drug shortages, states have repeatedly revised their execution
protocols often without substantial medical supervision, and without determining
whether any new drugs will be effective and humane. Manny Fernandez,
Executions Stall as States Seek Different Drugs, N.Y. Times, Nov. 8, 2013, at A1;
Josh Sanburn, Ohios Lethal-Injection Experiment, Time (Jan. 17, 2014),
http://nation.time.com/2014/01/15/ohios-lethal-injection-experiment. Many states
1 Press Release, Hospira, Hospira Statement Regarding Pentothal (Sodium Thiopental)
Market Exit (Jan. 21, 2011), available at http://phx.corporate-ir.net/phoenix.zhtml?c=175550&p=irol-newsArticle&ID=1518610&highlight; see Denno, supra, at 29. The United Kingdom and the
European Union likewise enacted export restrictions to prevent the shipment of sodium thiopental to
the United States. See Commission Implementing Regulation 1352/2011, 2011 O.J. (L 338) 31,
available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:338:0031:0034:EN
:PDF.
7/27/2019 Sepulvado Stay Application and Appendix
13/133
5
facing this conundrum have suspended executions in the interim,2 while other
states are attempting to proceed with executions by using new drug protocols.
B. Louisianas Continued Administration of ExecutionsLouisiana resolved to proceed with executions, despite the national drug
shortages. Through 2010, the states execution protocol provided for the traditional
three-drug cocktail: sodium thiopental (a sedative), pancuronium bromide (a
paralytic), and potassium chloride (which causes cardiac arrest). SeePet. App. 38a.3
This Court held in Baze that sodium thiopental eliminates unnecessary pain and
thus renders the three-drug cocktail constitutional, but that, failing a proper dose
of sodium thiopental that would render the prisoner unconscious, there is a
substantial, constitutionally unacceptable risk of suffocation from the
administration of pancuronium bromide and pain from the injection of potassium
chloride. 553 U.S. at 53 (plurality opinion).
2 These states include Alabama, seeArthur v. Thomas, No. 2:11-CV-0438-MEF, 2013 WL
5434694 (M.D. Ala. Sept. 30, 2013) (allowing Eighth Amendment claims against execution protocol
to proceed); Arizona, seeNotice of Disclosure, Schad v. Brewer, No. 13-02001-ROS (D. Ariz. Oct. 5,
2013) (disclosing that state supply of pentobarbital expired in November 2013); Arkansas, Hobbs v.
Jones, 412 S.W.3d 844 (Ark. 2012) (finding execution protocol in violation of state constitution);
California, Sims v. Dept of Corr. & Rehab., 157 Cal. Rptr. 3d 409 (Cal. Ct. App. 2013) (finding
execution protocol in violation of state law); Kentucky, Order, Baze v. Thompson, No. 06-CI-574
(Franklin Cir. Ct. Dec. 5, 2013) (denying states motion to lift injunction against executions);
Tennessee, Order, State v. Irick, No. M1987-00131-SC-DPE-DD (Tenn. Dec. 11, 2013) (staying
execution so constitutionality of new execution protocol could be evaluated). These states have notexecuted anyone since. See Number of Executions by State and Region Since 1976,Death Penalty
Info. Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last
updated Jan. 16, 2014).
3 Citations to Pet. App. refer to the appendix to the accompanying petition for a writ of
certiorari; citations to Pet. refer to the petition itself.
7/27/2019 Sepulvado Stay Application and Appendix
14/133
6
On January 22, 2010, in a lawsuit brought by another inmate, the Louisiana
Department of Public Safety and Corrections (Department) named petitioner as a
defendant in a reconventional demand (a state procedure equivalent to a
declaratory judgment action), seeking a ruling that all of its rules, regulations,
protocols, policies, and directives in support of lethal injection executions are valid
and enforceable and fully comply with all constitutional, statutory, and
administrative procedures. First Amended and Supplemental Reconventional
Demand for Declaratory Judgment, Code v. Dept. of Pub. Safety and Corr., No.
C585410 (19th J.D.C. Jan. 22, 2010). Attached to the demand was a copy of the
Departments then-current lethal-injection protocol, which specified that all
executions would use sodium thiopental, pancuronium bromide, and potassium
chloride. Id. at Ex. 2.
On October 28, 2010, the Department acknowledged that it had no sodium
thiopental in stock, Court of Appeals Record (C.A. R.) 107, making it impossible to
carry out the states then-current execution protocol, given that Hospira had
announced that it would no longer produce the drug, id.at 210. Therefore, the state
district court dismissed the Departments reconventional-demand suit insofar as it
sought a judgment evaluating the execution protocol. Judgment, Code, No.
C585410 (19th J.D.C. Mar. 10, 2011). The court found that any ruling on the merits
would be premature, as the protocol would need to be changed due to the
unavailability of sodium thiopental. See id.; Transcript at 9, Code, No. C585410
7/27/2019 Sepulvado Stay Application and Appendix
15/133
7
(1st J.D.C. Feb. 22, 2011) (There may very well have been a change in
circumstances now that make [the question] premature. . . . The protocol does
mention three drugs[,] only one is identified by name[,] and thats the one that I
think this court can take judicial notice of the fact that nobody in the United States
is manufacturing anymore.). The Department appealed to the Louisiana First
Circuit Court of Appeals on other grounds, and the state refused during oral
argument on April 25, 2012, to confirm whether it had changed its execution
protocol or to disclose any changes that had occurred. SeeC.A. R. 2021.
C. Louisianas Refusal To Disclose Its Execution ProtocolThough Louisiana had no sodium thiopental, it steadfastly refused to disclose
a new execution protocol. The states obstinacy prompted petitioner and other
condemned inmates in the state to seek disclosure of the protocol using the
remedies available to them. This dispute involving petitioner and other
condemned inmates has been ongoing for years, but has produced little in the way
of transparency.
On April 16, 2012, counsel for petitioner filed a request for the protocol under
the Louisiana Public Records Act. See Stay App. 8a10a. The Department refused
this request, citing security concerns and repeatedly stating that DOC has no
public records responsive to this request. Id.12a; see also id.12a14a.
On December 12, 2012, the state district court issued a death warrant for
petitioner to be executed on February 13, 2013, over petitioners objections that he
7/27/2019 Sepulvado Stay Application and Appendix
16/133
8
had not yet been provided with the execution protocol. See C.A. R. at 289. On
January 11, 2013, petitioner sought a writ in the Louisiana Supreme Court on the
issue of whether he could be executed without notice and a hearing as to the
execution protocol. Id. at 249. This writ was denied on January 23, 2013. State v.
Sepulvado, No. 13-0098 (La. Jan. 23, 2013); 105 So. 3d 59.
On December 18, 2012, counsel for petitioner filed a second request under the
Louisiana Public Records Act,again asking the Department to disclose its execution
protocol. Stay App. 16a. The Department refused this request on January 7, 2013.
Id.23a.
Petitioner simultaneously filed a request seeking disclosure of the protocol
pursuant to Louisianas Administrative Remedy Procedure (ARP). Id. 30a31a.
Almost a month later, on January 14, 2013, the Department rejected the ARP
request, explaining to petitioner that as of this date nothing has personally
happened to you. Id.33a.
D.Summary Of The Proceedings BelowHaving exhausted his state remedies, on January 23, 2013, petitioner
promptly moved to intervene in a 1983 lawsuit filed by inmate Jessie Hoffman in
the United States District Court for the Middle District of Louisiana. C.A. R. at 67
70. Petitioner alleged, inter alia, that Louisianas refusal to provide him with its
execution protocol violates the Due Process Clause of the Fourteenth Amendment.
Id.at 68.
7/27/2019 Sepulvado Stay Application and Appendix
17/133
9
Petitioner moved for a preliminary injunction requiring the state to disclose
its lethal-injection protocol. Id. at 11237. After a hearing, the district court
granted the preliminary injunction and stayed petitioners execution. Pet. App. 16a.
The court recognized that [t]here is no question that [petitioner] has a right to
raise [the Eighth Amendment claim] that the method of execution does inflict cruel
and unusual pain. Id.17a. The court reasoned that [i]t is axiomatic that . . . an
inmate who is to be executed cannot challenge a protocol as violative of the 8th
Amendment until he knows what that protocol contains. Id.
The court also rejected the states argument that petitioners motion for a
stay of execution is an 11th hour appeal. Id.18a. The court found it obvious that
there was a satisfactory explanation for the delay because Sepulvado has been
trying to determine what the protocol is for years and the state will not provide this
information. Id. See also id.20a (The intransigence of the State Defendants in
failing to produce the protocol requires the Court to issue this order.).
The state appealed. While the appeal was pending before the Fifth Circuit, a
magistrate judge adjudicating the due process claim ordered Louisiana to disclose
its then-current lethal-injection protocol in discovery. Ruling on Motion for
Protective Order, Hoffman v. Cain, No. 12-796-JJB-SCR (M.D. La. June 4, 2013).
The state complied on June 17, 2013. The disclosed protocol, dated January 10,
2013, calls for the use of a single drug: pentobarbital. Pet. App. 24a. The state
made no representation that it would definitely use that protocol in petitioners
7/27/2019 Sepulvado Stay Application and Appendix
18/133
10
execution, however. Indeed, in further discovery responses, the state objected to
disclosing information about its execution protocol on the ground that there were no
currently scheduled executions. See Motion to Compel, Hoffman v. Cain, No. 12-
796-JJB-SCR (M.D. La. Oct. 21, 2013). The state moreover continued to insist in
the Fifth Circuit that petitioner had no due process right to the protocol.
A panel of the Fifth Circuit reversed the district courts grant of the
preliminary injunction. The panel reasoned that petitioner had failed to identify a
cognizable liberty interest for purposes of the Due Process Clause. Pet. App. 10a.
Perhaps the states secrecy masks a substantial risk of serious harm, but it does
not create one. Id.11a12a (quoting Baze, 553 U.S at 52 (plurality opinion)). In
the panels view, [a]dopting the district courts reasoning would frustrate the
States significant interest in enforcing its criminal judgments. Id. 10a (quoting
Nelson v. Campbell, 541 U.S. 637, 650 (2004)). The panel also discounted the
importance of petitioners asserted due process right because, [d]espite Louisianas
concealment of its protocol, Sepulvado has managed to assert a litany of specific
cruel-and-unusual-punishment claims. Id.11a.
The panel also reversed the stay of execution. Id.15a. In addition to finding
that there was no basis for a stay because petitioner had no cognizable liberty
interest, id.10a, the panel concluded that his motion was untimely because he has
not explained his failure to bring a claim until two years after Louisianas repeal
of its lethal-injection protocol in December 2010, id. 14a. The panel deemed it
7/27/2019 Sepulvado Stay Application and Appendix
19/133
11
irrelevant that during that period petitioner had pursued his state law remedies,
and it did not explain how he could have asserted a due process right to the protocol
until the state finally refused to provide it to him.
Petitioners request for rehearing en banc was denied over the dissent of four
judges, three of whom authored a separate opinion. In describing the facts of the
case, the dissenters observed that [t]he State repeatedly refused to furnish
Sepulvado with . . . notice and adamantly insisted before the district court that it is
under no obligation to officially release the details of the execution protocol. Id.
23a. But, citing this Courts opinion in University of Texas v. Camenisch, 451 U.S.
390 (1981), the dissenters argued that the panel decision was moot because the
State complied fully with the terms of the preliminary injunction by turning over
its revised lethal-injection protocol to Sepulvado before the panel of this Court
issued its decision. Pet. App. 27a. The dissenters also argued that the panel erred
on the merits:
If a State does not officially release the details of its execution protocol, a
court would have no way of verifying whether the State planned to use
pentobarbital or another substance, such as expired or contaminated sodium
thiopental, or an entirely different chemical whose properties could very well
cause an unconstitutional degree of pain and suffering. If Sepulvado were
not given such notice before his execution takes place, there is absolutely no
possibility of a post-deprivation hearing or any opportunity to be heard at a
meaningful time and in a meaningful manner.
Id. 31a (quotingHamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)).
After the case was remanded, on January 10, 2014, the district court
dismissed petitioners due process claim, finding that the Fifth Circuits panel
7/27/2019 Sepulvado Stay Application and Appendix
20/133
12
decision mandated that result. Id.43a44a. The court denied the states motion to
dismiss petitioners Eighth Amendment challenges to the disclosed execution
protocol. Id.44a46a. Those claims remain pending.
Petitioner filed a timely petition for a writ of certiorari seeking review of the
Fifth Circuits judgment on January 27, 2014.
E. Subsequent Events Establishing That The State Will Have ToRevise Its Protocol
While petitioners execution remains scheduled for February 5, 2014,
ostensibly to be conducted using pentobarbital, it is highly unlikely that Louisiana
will be able to implement the 2013 Protocol. Like sodium thiopental, manufactured
pentobarbital is unavailable for executions in the United States because the only
manufacturer blocks its sale or transfer for that purpose. Nembutal is currently the
only commercially available pentobarbital in the United States. SeeFDA Approved
Drug Products, U.S. Food & Drug Admin., http://www.accessdata.fda.gov/scripts
/cder/drugsatfda/index.cfm (last visited Jan. 21, 2014). On January 7, 2011,
Lundbeck the then-producer of Nembutal announced a restricted distribution
program designed to deny distribution of pentobarbital to prisons in U.S. states
currently carrying out the death penalty by lethal injection. Stay App. 2a. On
December 22, 2011, Akorn Inc. acquired the patent for Nembutal and agreed to
continue with Lundbecks restricted distribution programme for Nembutal. Id.
5a.
7/27/2019 Sepulvado Stay Application and Appendix
21/133
13
Although the state did have pentobarbital during 2013, and affirmed by
affidavit that this pentobarbital was purchased from Lundbeck, C.A. R. 38687,
those supplies have expired, Stay App. 35a. The prison pharmacy, in compliance
with state pharmacy regulations, discarded them as verified by the state Board of
Pharmacy on December 19, 2013. Id. Indeed, the entire supply of Nembutal
potentially available for use in executions (namely, the supply that was distributed
before the restricted distribution program) has expired, see Frequently Asked
Questions, supra, so the prison pharmacy is prohibited from dispensing or storing it,
see La. Admin. Code tit. 46, 2501(D) (2012) (Expired drugs shall not be dispensed
and shall be removed from the pharmacy drug inventory.); see also id. 1817(A)(3)
(In the event expired drugs are received by a penal pharmacy, the pharmacist-in-
charge shall destroy them as required by law.).
The Louisiana State Penitentiary (LSP) Pharmacy has acknowledged that, as
of January 16, 2014, it did not have the drug in stock. Stay App. 37a. On that day,
the General Counsel of the Louisiana Board of Pharmacy stated that one of the
Boards compliance officers visited the LSP Pharmacy and confirmed that the
pharmacy does not have any pentobarbital in stock nor has the pharmacy obtained
any pentobarbital from any compounding pharmacy. Id. The Pharmacist-in-
Charge informed the officer that she has not been directed by anyone with the
Department of Public Safety and Corrections to obtain any pentobarbital. Id.
7/27/2019 Sepulvado Stay Application and Appendix
22/133
14
That same day, and again on January 24, 2014, counsel for respondents in
this case informed petitioner that the Department is in the process of procuring
pentobarbital, thereby acknowledging that it does not yet have the drug. Id.39a;
see also id. 49a. And despite the states assertion that it is procuring the
pentobarbital, it has never explained from where it plans to obtain the drug, and in
fact there is no lawful mechanism by which the state could do so.
Louisiana has informed petitioner that Jonathan A. Roundtree, M.D., will
write the prescription ordering the drug. Id.51a. However, a doctor is prohibited
from prescribing pentobarbital to petitioner to cause his death, because [a]
prescription for a controlled substance to be effective must be issued for a legitimate
medical purpose by an individual practitioner acting in the usual course of his
professional practice. 21 C.F.R. 1306.04; see also 21 U.S.C. 841(a)(1)
(criminalizing the dispensing of a controlled substance without a legitimate medical
purpose); La. Rev. Stat. Ann. 37:1285(A)(6) (2007) (The board may refuse to issue,
or may suspend or revoke any license or permit, or impose probationary or other
restrictions on any license or permit issued under this Part for . . . [p]rescribing,
dispensing, or administering legally controlled substances . . . without legitimate
medical justification therefor . . . .).
Additionally, because there are no commercially available, unexpired
supplies from the manufacturer, the only possible way for the state to acquire the
7/27/2019 Sepulvado Stay Application and Appendix
23/133
15
pentobarbital is from a compounding pharmacy.4 However, under La. Admin. Code
tit. 46, 2535, compounded drugs may be dispensed only if there is a patient
specific prescription, id. 2535 (cmt.), or if the drug is administered by the
prescriber and not dispensed to the patient, id. 2535(D)(2).5 As discussed above,
it would be illegal for Dr. Roundtree to write petitioner a prescription for
pentobarbital. And compounded pentobarbital cannot be administered by the
prescriber, who must be a doctor, pursuant to Louisianas execution protocol, which
calls for the I.V. Team to be composed of phlebotomists, emergency medical
technicians, paramedics, or Military Corpsmen with training in phlebotomy, not
doctors. La. State Penitentiary,Louisiana Execution Protocol26 (2013) [hereinafter
Louisiana Execution Protocol]. Louisiana has disclosed the members of its I.V.
team, none of whom have medical licenses. Stay App. 51a52a.
If Louisiana were to illegally use compounded pentobarbital, the execution
would carry a substantial risk of serious harm to petitioner. Baze, 553 U.S at 52
(plurality opinion). Essential chemical properties of compounded pentobarbital
4 A compounding pharmacy mixes drugs in small batches under custom orders. Unlike
manufacturers, compounding pharmacies generally are not subject to the drug approval process and
rigorous checks and regulatory procedures required under federal law. SeeCompounding and the
FDA: Questions and Answers, U.S. Food & Drug Admin., http://www.fda.gov/Drugs
/GuidanceComplianceRegulatoryInformation/PharmacyCompounding/ucm339764.htm#approved (last updated Dec. 2, 2013).
5Louisianas pharmacy regulations apply regardless of whether the compounding pharmacy is
located within the state. SeeLa. Admin. Code tit. 46, 2309 (Louisiana pharmacy laws and
regulations shall be applicable to regulate the practice of pharmacy for that portion of the out-of-
state pharmacys Louisiana pharmacy practice or operation.).
7/27/2019 Sepulvado Stay Application and Appendix
24/133
16
such as pH, osmolarity, or concentration may be sufficiently different from those
of manufactured pentobarbital that they pose unique risks. See Stay App. 74a, 78a
81a. Such differences may result in a drug that is painful when injected or is
partially or completely ineffective, such that the prisoner will not be killed by the
drug, but will instead be unconscious for an extended period of time while breathing
inadequately, before waking up in a permanently brain-damaged state. See id.81a.
It is therefore substantially likely that the state will substitute an unknown,
different drug or combination of drugs at the last minute, and that petitioner will be
executed using a procedure that he and the courts will never have the
opportunity to subject to constitutional scrutiny.
Indeed, by failing to acquire pentobarbital in a timely fashion, Louisiana has
already violated the 2013 Protocol. The 2013 Protocol requires the prison pharmacy
at all times to [m]aintain the following stock ensuring chemicals have not
exceeded expiration date: 15 grams pentobarbital 50mg/ml solution. Louisiana
Execution Protocol, supra, at 38. 30 days prior to execution, the LSP Pharmacist
is required to [v]erify execution drugs are in stock as above and expiration dates
will not be exceeded prior to execution date. Id. But as of January 24, 2014 a
mere twelve days before the scheduled execution the state did not possess any
pentobarbital. Stay App. 39a, 49a. That confirmed violation of the 2013 Protocol
strongly suggests that the state will modify its procedures and thus impose an
unnecessary and unconstitutional risk of inhumane punishment on petitioner.
7/27/2019 Sepulvado Stay Application and Appendix
25/133
17
III. REASONS FOR GRANTING THE STAYA stay of execution is appropriate if an applicant makes a four-part showing:
first, that there is a reasonable probability that four Justices of the Court will vote
to issue a writ of certiorari, Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980)
(Brennan, J., opinion in chambers) (quoting Graves v. Barnes, 405 U.S. 1201, 1203
04 (1972) (Powell, J., opinion in chambers)) (internal quotation marks omitted);
second, that there is a fair prospect that a majority of the Court will reverse the
decision below, id.; third, that irreparable harm will likely result if the stay is not
granted, id.; and fourth, that, if it is a close case, the balance [of] the equities
weighs in favor of a stay, based on the relative harms to the applicant and
respondent, as well as the interests of the public, id. (quoting Holtzman v.
Schlesinger, 414 U.S. 1304, 130809 (1973) (Marshall, J., opinion in chambers)).
Where a stay is sought in conjunction with a petition for a writ of certiorari, rather
than on direct appeal, the consideration of prospects for reversal dovetails, to a
greater extent, with the prediction that four Justices will vote to hear the case. In
re Roche, 448 U.S. 1312, 1314 n.1 (1980) (Brennan, J., opinion in chambers).
1. Petitioner meets both the reasonable probability and fair prospect
prongs of the standard. This Court is likely to grant certiorari and reverse the
decision below for two reasons, discussed in detail in petitioners parallel petition
for a writ of certiorari. First, this case presents an ideal vehicle to resolve a legal
question of great national importance. SeePet. Part I. The Question Presented is a
7/27/2019 Sepulvado Stay Application and Appendix
26/133
18
pure question of law whether a condemned inmate has a due process right to
know the protocol by which he will be executed that is essential for courts ability
to assess whether an execution comports with the Eighth Amendment. This
question arises with great frequency in capital litigation and is the subject of
substantial disagreement among jurists. This Court likely will intervene to resolve
this fully developed disagreement and prevent continuing disruption of execution
proceedings.
Second, the Fifth Circuits holding that the Constitution permits states to
withhold the information necessary for courts to enforce the Eighth Amendment is
irreconcilable with this Courts precedents. See Pet. Part II. The Eighth
Amendments prohibition against cruel and unusual punishments extends to
methods of execution that produce an unnecessary and wanton infliction of pain,
Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion). The condemned
inmates interest in avoiding an inhumane death in turn gives rise to a procedural
due process right to have a court assess whether the states execution protocol
comports with the Eighth Amendment. See, e.g.,Ford v. Wainright, 477 U.S. 399,
410, 41314 (1986) (plurality opinion) (establishing that the Eighth Amendment
prohibits execution of inmates who are insane and concluding that inmates claiming
insanity are entitled to procedural due process). But, of course, judicial review of a
states execution protocol is impossible unless that protocol is timely disclosed. See
Oken v. Sizer, 321 F. Supp. 2d 658, 664 (D. Md. 2004) (Obviously, the fact of court
7/27/2019 Sepulvado Stay Application and Appendix
27/133
19
review of the protocols presupposes their production.), stay vacated, 524 U.S. 916.
Absent such disclosure, the condemned inmate faces a substantial risk of an unduly
painful execution.
This Court has held that even though lethal injection may be humane, the
Eighth Amendment forbids states from using combinations of drugs that inflict
unnecessary pain and suffering concluding, for example, that without the prior
administration of a sedative, the injection of pancuronium bromide and potassium
chloride would present a substantial, constitutionally unacceptable risk of
suffocation. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality opinion). However,
under the Fifth Circuits decision, Louisiana may decide at the eleventh hour to use
such constitutionally unacceptable drugs without notifying anyone, and, even
though substantially less painful alternatives may be available, no court would
have the opportunity to review the protocols constitutionality. Weighed against the
inmates almost uniquely compelling interest, Ake v. Oklahoma, 470 U.S. 68, 78
(1985), in avoiding undue suffering during his execution, and the grave risk of
irreversible erroneous deprivation if the execution protocol is not disclosed, the
countervailing governmental interests are minimal. See Mathews v. Eldridge, 424
U.S. 319, 335 (1976). The state simply does not have any substantial interest in
precluding courts from ensuring that its execution protocol comports with the
Eighth Amendment, and the states undisputed interest in enforcing its criminal
judgments is not threatened, since all delay can be avoided by timely disclosure.
7/27/2019 Sepulvado Stay Application and Appendix
28/133
20
2.With respect to the third prong, petitioner will suffer irreparable harm if
the stay is not granted. [D]eath is a punishment different from all other sanctions
in kind rather than degree. Woodson v. North Carolina, 428 U.S. 280, 30304
(1976) (plurality opinion). As a consequence, the requirement of irreparable harm .
. . if a stay is not granted . . . is necessarily present in capital cases. Wainwright v.
Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring). Louisiana has refused
to tell petitioner the protocol by which he will be executed in nine days. Unless this
Court stays his execution, petitioner will forever lose the opportunity to vindicate
his Eighth Amendment right in court and will face a grave risk of enduring
excruciating pain during his execution.
3. With respect to the balance of the equities prong, the harm to the state
that will result from the entry of a stay of execution is slight in comparison with the
irreparable, unconstitutional harm that petitioner would likely suffer if a stay were
denied. In capital cases, the balance of conflicting interests must be weighed most
heavily in favor of the procedural safeguards of the Bill of Rights. Reid v. Covert,
354 U.S. 1, 46 (1957) (Frankfurter, J., concurring in the result); see alsoid.at 45
46. To be sure, the state has a strong interest in the prompt execution of its
judgments. SeeNelson v. Campbell, 541 U.S. 637, 650 (2004). However, petitioners
due process claim itself poses no obstacle to Louisianas enforcement of the
judgment against him. A stay of execution is necessary in this case only because of
the prospect that the state will execute petitioner according to a different protocol
7/27/2019 Sepulvado Stay Application and Appendix
29/133
21
than the one it has disclosed. Had the state timely disclosed and committed to
using a protocol that is consistent with the Eighth Amendment, petitioners
execution would have proceeded without delay. Cf. Landrigan v. Brewer, 625 F.3d
1132, 1133 (9th Cir. 2010) (Wardlaw and Fletcher, JJ., concurring in the denial of
rehearing en banc), vacated,131 S. Ct. 445.
In any event, the substantial risk that petitioner will be executed in a
manner that violates the Eighth Amendment, without any opportunity to vindicate
his rights in court, far outweighs the harm of a delay in carrying out an execution.
SeeGomez v. U.S. Dist. Court for the N. Dist. of Cal., 966 F.2d 460, 462 (9th Cir.
1992) (Noonan, J., dissenting) (The state will get its man in the end. In contrast, if
persons are put to death in a manner that is determined to be cruel, they suffer
injury that can never be undone, and the Constitution suffers an injury that can
never be repaired.); see alsoIn re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003)
([W]e perceive no substantial harm that will flow to the State of Alabama or its
citizens from postponing petitioners execution to determine whether that execution
would violate the Eighth Amendment.); Cooey v. Taft, 430 F. Supp. 2d 702, 708
(S.D. Ohio 2006); Order at 3,Hill v. Owens, No. 2013-CV-233771 (Ga. Sup. Ct. July
18, 2013), appeal docketed, No. S14A0092 (Ga.). The balance tips even further in
favor of granting a stay in light of the states own interest in ensuring that its
execution protocol comports with the Eighth Amendment, which is evident from the
fact that Louisiana itself sought a declaratory judgment affirming the lawfulness of
7/27/2019 Sepulvado Stay Application and Appendix
30/133
22
its former protocol. Code v. Cain, No. 138,860 (1st J.D.C. Mar. 23, 2011), writ
denied, No. 09-0113 (La. Oct. 8, 2010); 46 So. 3d 1258.6
The interest of the public also strongly favors staying petitioners execution.
[T]he public interest is served only by enforcing constitutional rights and by the
prompt and accurate resolution of disputes concerning those constitutional rights.
In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1059 (S.D. Ohio 2012),
motion to vacate stay denied,671 F.3d 601 (6th Cir.), motion to vacate stay denied
sub nom. Turner v. Epps, 132 S. Ct. 1306. In particular, the public has a strong
interest in ensuring that the state executes its condemned inmates without
subjecting them to excruciating pain in violation of the Eighth Amendment. See
Order at 4,Hill, No. 2013-CV-233771 ([T]he public has a clear interest in ensuring
that the Constitutions, both Federal and State, are followed by Defendants with
regard to protections afforded individuals against cruel and unusual punishment.);
Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559, at *11 (D. Ariz.
Oct. 25, 2010), affd,625 F.3d 1144 (9th Cir.), vacated,131 S. Ct. 445. By contrast,
the public interest has never been and could never be served by rushing to
judgment at the expense of a condemned inmates constitutional rights. Ohio
Execution Protocol Litig., 840 F. Supp. 2d at 1059.
6To minimize any delay, if the Court grants certiorari, petitioners counsel is prepared to brief
the case according to the schedule applicable to cases granted on Friday January 17, 2014, so that
the case is available for argument and decision in the Courts October Term 2013.
7/27/2019 Sepulvado Stay Application and Appendix
31/133
23
IV. PETITIONERS MOTION FOR A STAY OF EXECUTION WAS TIMELYThere is no merit to the Fifth Circuits suggestion that petitioner was
untimely in requesting a stay of execution. See Pet. App. 14a15a. In fact, as the
district court recognized, petitioner has diligently pursued his rights in compliance
with required procedures.
A court may consider the last-minute nature of an application to stay
execution in deciding whether to grant equitable relief. Gomez v. U.S. Dist. Court
for the N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). However, there is no
general rule that a claim [i]s dilatory if first filed at the time when the possibility
of execution bec[omes] imminent. Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th
Cir. 2005) (per curiam). Instead, the court should conduct[] a fact-specific inquiry
to ascertain whether the claims could have been brought earlier, and whether the
petitioner had good cause for delay. Id.
Petitioners motion for a stay was timely. Indeed, petitioner has been seeking
information about the protocol by which he will be executed for almost two years.
Petitioners counsel, Gary Clements, twice sought to obtain the execution
protocol under the Louisiana Public Records Act, but the state adamantly refused
these requests. Mr. Clements made the first request on April 16, 2012, Stay App.
8a10a, almost eight months beforea judge lifted the stay in petitioners state-court
7/27/2019 Sepulvado Stay Application and Appendix
32/133
24
case7and signed a death warrant for his execution, seeC.A. R. 28690.8 In its reply,
sent more than three months later, the Department refused to provide the protocol,
citing security concerns and repeatedly stating, DOC has no public records
responsive to this request. Stay App. 12a14a. On December 18, 2012, Mr.
Clements filed a second public records request. Id. 16a19a. The Department
refused this request on January 7, 2013, on similar grounds. Id.23a28a.
The Fifth Circuits suggestion that petitioner disentitled himself to a stay of
execution by initially instituting state rather than federal proceedings is genuinely
inexplicable. Petitioner had no federal constitutional right to information until it
was clear that the state would not provide it. Further, under the Prison Litigation
Reform Act (PLRA), a prisoner cannot bring a 1983 action without first
exhausting his administrative remedies. See42 U.S.C. 1997e(a) )(No action shall
be brought with respect to prison conditions under section 1983 of this title . . . until
such administrative remedies as are available are exhausted.). This Court has
affirmed that the PLRAs exhaustion requirement is mandatory, see Jones v. Bock,
549 U.S. 199, 211 (2007), and that it is a precondition to any 1983 action,
Wilkinson v. Dotson, 544 U.S. 74, 84 (2005) (emphasis added). To comply with this
7
In July 2008, a state district court had stayed all proceedings in petitioners case due toongoing litigation regarding the constitutionality of Louisianas then-current lethal-injection protocol
underBaze. See C.A. R. 289.
8The Fifth Circuit suggested that petitioner did not act before his death warrant was signed in
December 2012, see Pet. App. 14a & n.19, whereas, in fact, petitioners counsel filed the first public
records request in April 2012.
7/27/2019 Sepulvado Stay Application and Appendix
33/133
25
requirement, petitioner filed a request pursuant to Louisianas ARP on December
18, 2012. Petitioner requested that he be provided with a copy of the current
protocol for his execution. See Stay App. 30a31a. Almost a full month later, on
January 14, 2013, the Department rejected petitioners request, explaining that as
of this date nothing has personally happened to you. Id.33a.
Petitioner also sought relief in state court, repeatedly objecting to the states
refusal to provide him with the protocol on due process grounds. In a memorandum
filed with the state district court on November 30, 2012, petitioner argued that the
stay of his state-court proceedings should not be lifted because the state had refused
to reveal its execution protocol:
The State of Louisiana has no currently publicized execution process. To the
extent that the State has secretly adopted an amended protocol, the States
secrecy violates Mr. Sepulvados due process rights and leaves open the
possibility that the State will execute him in an inhumane, constitutionally
unsound manner.
C.A. R. at 188. Petitioner reiterated his concerns in a motion for stay of execution
after the state court issued his death warrant:
Petitioner knows of no currently publicized execution process in Louisiana.
Louisiana cannot execute Christopher Sepulvado with the same method it
used in its eight previous executions. If the State has secretly adopted an
amended execution protocol, the very secrecy of that amendment would
violate Mr. Sepulvados due process rights and leaves open the very real
possibility that the State will execute him in an inhumane, constitutionally
unsound manner.
C.A. R. at 218. After the state district court denied this motion, petitioner filed an
application for writ of review in the Supreme Court of Louisiana, once again
7/27/2019 Sepulvado Stay Application and Appendix
34/133
26
objecting that the state had not provided him with a current execution protocol in
violation of his due process rights. C.A. R. 263. The Supreme Court of Louisiana
denied the writ on January 23, 2013. State v. Sepulvado, No. 13-0098 (La. Jan. 23,
2013); 105 So. 3d 59. Petitioner intervened in this 1983 action on the same day.
While petitioner has actively sought the execution protocol, the state has
continued to drag its feet in related discovery following the Fifth Circuits decision,
causing petitioner to delay his filing in this Court, and making it increasingly likely
that petitioner will be put to death without knowing the method of his
execution. On January 7, 2014 petitioner filed a set of discovery requests seeking
information regarding the nature and origin of the drug by which he would be
executed. Plaintiff Christopher Sepulvados Second Set of Requests for Production,
Hoffman v. Jindal, No. 3:12-cv-00796 (M.D. La. Jan. 7, 2014). The state promised
to comply by January 24, 2014, Stay App. 44a, causing petitioner to delay his filing
with this Court in anticipation of the new documents. But on January 24, 2014, the
state reversed course and refused to produce the requested documents, instead
alleging that it would do so within the applicable delay, i.e., by February 6, 2014
the day after petitioners scheduled execution date. Id. 46a.
Petitioner has moved expeditiously to file this petition. On January 7, 2014,
the state issued a death warrant specifying an execution date of March 7, 2014. On
January 10, the state moved the execution date up to February 5.
7/27/2019 Sepulvado Stay Application and Appendix
35/133
27
V. THIS COURT HAS NEVER CONFRONTED THE QUESTIONPRESENTED IN THE PROCEDURAL POSTURE OF THIS CASE
A handful of condemned inmates have raised similar issues in the past. But
none of those cases properly raised the Question Presented.
In Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010) (mem.), by the time the
case reached this Court, the inmate had almost complete information about the
protocol by which he would be executed; he had secured (1) the names of the drugs
that would be used in his execution, (2) their expiration dates, (3) information that
the sodium thiopental that would be used was not obtained from or manufactured
by Hospira, Inc., (4) the states avowal that a sufficient quantity of the drugs was
lawfully obtained with the approval of U.S. Customs and FDA officials, and (5) the
states avowal that it would not depart from the stated protocol. SeeLandrigan v.
Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559, at *1, *4 (D. Ariz. Oct. 25,
2010); Anticipatory Motion to Lift Stay at 1, Landrigan v. Trujillo, 131 S. Ct. 445
(No. 10-A416). Moreover, the plaintiff had learned that the sodium thiopental that
would be used in his execution was imported from Great Britain. SeeLandrigan v.
Brewer, 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, J., dissenting from the denial
of rehearing en banc); Supplemental Response to Motion to Vacate Stay at 3,
Landrigan, 131 S. Ct. 445 (No. 10-A416) (admitting knowledge that the state
obtained its sodium thiopental from Britain). The inmates claim was limited to
the narrow assertion that the states refusal to provide a single piece of information
the sourceof the sodium thiopental that would be used in his execution violated
7/27/2019 Sepulvado Stay Application and Appendix
36/133
28
his right to due process. This Court vacated the district courts stay of execution by
a vote of five to four, finding that, given all the other information already available
to the plaintiff about the execution protocol, he had failed to show that the use of
the drug was sure or very likelyto cause serious illness and needless suffering in
violation of the Eighth Amendment. Landrigan, 131 S. Ct. at 445 (quoting Baze v.
Rees, 553 U.S. 35, 50 (2008) (plurality opinion)) (internal quotation marks omitted).
In Yowell v. Livingston, 134 S. Ct. 417 (2013) (mem.), the condemned inmate
knew the identity, source, and potency of the drug that Texas would use to execute
him.9 There was no indication that Texas would change its protocol. The inmate
argued instead that the states failure to disclose information in a timelymanner
regarding the method of his execution violated his constitutional right of access to
courts. Whitaker v. Livingston, 732 F.3d 465, 467 (5th Cir. 2013). The district court
denied his stay request, finding that Texas notified the public on one of its websites
that it uses pentobarbital more than a year before Mr. Yowells scheduled
execution and that Texas promptly disclosed information about the drugs source to
Mr. Yowell upon request. Opinion on Preliminary Injunction at 4, Whitaker v.
9SeePetition for a Writ of Certiorari at 10, Yowell, 134 S. Ct. 417 (No. 13-6809) ([I]nformation
from three different sources revealed that TDCJ intended to use compounded pentobarbital from
Woodlands Compounding Pharmacy to execute Mr. Yowell . . . .); see also Respondents Brief in
Opposition to Petition for Writ of Certiorari and Application for Stay of Execution at 1, Yowell, 134 S.Ct. 417 (No. 13-6809) (The state intends to execute Yowell by administering a lethal injection of 5
grams of pentobarbital in accordance with the execution protocol adopted by [TDCJ] and utilized for
twenty-three [executions] since July 10, 2012. When the states supply of pentobarbital was
exhausted in September 2013, the state obtained compounded pentobarbital with a potency of 98.8%
for use in executions beginning with Yowell.).
7/27/2019 Sepulvado Stay Application and Appendix
37/133
29
Livingston, No. H-13-2901 (S.D. Tex. Oct. 5, 2013); see also id. at 45. The Fifth
Circuit affirmed, agreeing with the district court that the state complied with
requests for information about how it intended to execute Yowell promptly after the
plaintiffs requested that information. Whitaker, 732 F.3d at 467. This Court
denied Mr. Yowells petition for a writ of certiorari and application for a stay of
execution. Yowell, 134 S. Ct. at 417.
InBeaty v. Brewer, 131 S. Ct. 2929 (2011) (mem.), the inmate asserted that
the state had violated due process by changing its protocol soon before the planned
execution. As in Yowell, the constitutional claim thus went to the timing of the
states disclosure, rather than to its existence. The district court denied the stay
request, Beaty v. Brewer,791 F. Supp. 2d 678, 686 (D. Ariz. 2011), and the Ninth
Circuit affirmed, Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011). Seven
judges dissented from the courts denial of rehearing en banc, arguing that Mr.
Beaty has a protected interest in knowing and being given an opportunity to be
heard about the States use of pentobarbital in his execution, in contrast to its
protocol in past executions. Were it otherwise, the capital defendants due process
right to review such protocols would be meaningless. Id. at 1073 (dissent from the
denial of rehearing en banc). This Court denied Mr. Beatys petition for a writ of
certiorari and application for a stay of execution. Beaty, 131 S. Ct. at 2929.
InSizer v. Oken, 542 U.S. 916 (2004) (mem.), the condemned inmate asserted
that the state had unduly delayed in providing him with a copy of its execution
7/27/2019 Sepulvado Stay Application and Appendix
38/133
30
protocol three days before his scheduled execution. SeeOken v. Sizer,321 F. Supp.
2d 658, 66061 (D. Md. 2004). Again, the inmates objection related to the timing of
the disclosure. The district court
[was] not prepared to say that Oken [was] likely to prevail in establishing
that the manner in which the State of Maryland would administer a lethal
injection to him constitutes a cruel and unusual punishment or even, as he
might argue hereafter, that the issue he raises [was] sufficiently serious and
substantial as to merit a further stay.
Id.at 667. Nonetheless, the court granted a stay of execution after concluding that
Defendants themselves contributed to this state of affairs by their last minute
amendment of the Execution Protocol and by their even later delivery of a copy of
that Protocol (moreover, incomplete Protocol) to Okens counsel. Id. The state
sought vacatur in this Court, explaining that Mr. Oken was not entitled to a stay of
execution to have his Eighth Amendment claim heard because he purposely waited
until the last minute to raise it. Emergency Application to Chief Justice to Vacate
Stay of Execution at 4, Oken, 542 U.S. 916 (No. 03-A1023). Mr. Oken had not
requested or challenged the states lethal injection protocol for over a decade, even
though there was no mystery as to the basic procedure for execution by lethal
injection to be used in Maryland and across the country. Id.at 4. Mr. Oken first
requested a copy of the protocol a month and four days before his scheduled
execution, and there was strong evidence that his 1983 claim was a mere tactic for
delay. This Court vacated the stay by a vote of six to three. Oken, 542 U.S. at 916.
7/27/2019 Sepulvado Stay Application and Appendix
39/133
31
This case is entirely unlike those in which similar issues have previously
come before this Court. In prior cases, the inmate possessed all the material
information he would need for a court to assess whether his execution would
comport with the Eighth Amendment. The state had irrevocably committed to
refrain from changing its protocol and there was no evidence in the record to
suggest that the drug obtained from a foreign source is unsafe and no showing
that the drug was unlawfully obtained. Landrigan, 131 S. Ct. at 445. By contrast,
here, Louisiana has made no such commitment to refrain from changing its protocol
and there is substantial evidence that Louisianas protocol willchange. In earlier
cases, the information available meant that the courts were able to determine
whether the method of execution was consistent with the Eighth Amendment; here,
the states secrecy altogether prevents courts from making that determination.
Further, to the extent that Louisiana has represented an intent to procure
pentobarbital, it has not provided any information about the provenance of the
drug, and its commercial unavailability renders that representation highly suspect.
Petitioner thus faces a serious risk of suffering excruciating pain during his
execution, without any opportunity to challenge Louisianas protocol in court.10
10
In Williams v. Hobbs, 133 S. Ct. 97 (2012) (mem.), inmates brought a 1983 challenge to theArkansas Method of Execution Act, arguing, inter alia, that the statute violated their due process
right of access to courts by preventing them from learning how their executions would be carried out.
Jones v. Hobbs, No. 5:10CV00065JLH, 2010 WL 1417976, at *1 (E.D. Ark. Apr. 5, 2010). The district
courtdismissed the case for failure to state a claim upon which relief could be granted, finding that
the inmates in fact had access to the states current execution protocol, that they could submit a
request to obtain information about future protocols pursuant to the Arkansas Freedom of
7/27/2019 Sepulvado Stay Application and Appendix
40/133
32
VI. CONCLUSIONFor the foregoing reasons, petitioner respectfully requests that this Court
grant him a stay of execution, now scheduled for February 5, 2014, pending
resolution of his petition for a writ of certiorari and, if the writ is granted, further
order of the Court. In the alternative, petitioner requests that the Court issue an
order directing the state to refrain from conducting the execution in a manner that
materially deviates from the execution protocol previously disclosed to petitioner.
Respectfully submitted,
Kathleen KellyGary ClementsCAPITAL POST-CONVICTION PROJECT
OF LOUISIANA1340 Poydras St.Suite 1700New Orleans, LA 70112
Jonathan MasseyMASSEY &GAIL LLP1325 G St., N.W.Suite 500Washington, DC 20005
Thomas C. GoldsteinCounsel of Record
Tejinder SinghGOLDSTEIN &RUSSELL,P.C.5225 Wisconsin Ave. N.W.Suite 404Washington, DC 20015(202) [email protected]
January 27, 2014
Information Act, and that their argument that the Director of the Arkansas Department of
Corrections would unilaterally depart from the protocol was speculative. Id.at *3*4. The Eighth
Circuit affirmed. Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011). After the inmates sought
certiorari, the state stayed all executions and the inmates dismissed their petition. Williams, 133 S.
Ct. at 97. No stay of execution was sought in this Court.
7/27/2019 Sepulvado Stay Application and Appendix
41/133
APPENDIX A
1a
7/27/2019 Sepulvado Stay Application and Appendix
42/133
Lundbeck overhauls pentobarbital distribution program to restrict misuse
Release date: 01-07-2011 Release time: 06:00
New specialty pharmacy drop ship program will deny distribution of pentobarbital to prisons in U.S. statescurrently carrying out the death penalty by lethal injection.
Lundbeck today announced that the company has moved to alter the distribution of its medicine Nembutal(pentobarbitalsodium injection, USP) in order to restrict its application as part of lethal injection in the U.S. Going forward, Nembutal will besupplied exclusively through a specialty pharmacy drop ship program that will deny distribution of the product to prisons in U.states currently active in carrying out the death penalty by lethal injection. The company notified its distributors of the plan inlate June.
The new distribution program ensures that hospitals and treatment centers will continue to have access to Nembutal fortherapeutic purposes. Under the program, Lundbeck will review all Nembutal orders before providing clearance for shipping tproduct and deny orders from prisons located in states currently active in carrying out death penalty sentences.
Prior to receiving Nembutal, the purchaser must sign a form stating that the purchase of Nembutal is for its own use and that will not redistribute any purchased product without express written authorization from Lundbeck. By signing the form, thepurchaser agrees that the product will not be made available for use in capital punishment.
"Lundbeck adamantly opposes the distressing misuse of our product in capital punishment. Since learning about the misuse have vetted a broad range of remedies - many suggested during ongoing dialogue with external experts, government officialsand human rights advocates. After much consideration, we have determined that a restricted distribution system is the mostmeaningful means through which we can restrict the misuse of Nembutal," says Ulf Wiinberg, Chief Executive Officer of H.
Lundbeck A/S and continues: "While the company has never sold the product directly to prisons and therefore can't makeguarantees, we are confident that our new distribution program will play a substantial role in restricting prisons' access toNembutal for misuse as part of lethal injection."
Lundbeck has initiated a thorough investigation of the distribution of Nembutal to assess ways of restricting prisons' access tothe medicine. Based on the initial findings, the company believes its new distribution program is the best way to achieve this.The investigation will be completed, and any possible further options that may be discovered will be evaluated.
Prior to the implementation of the drop ship program, Nembutal was sold through a more standard process utilizing severaldistributors to fulfill orders based on whether customers held the appropriate federal and state licenses for ordering controllesubstances.
Meets important medical need
Nembutal represents less than one percent of Lundbeck's global sales but the company chose not to withdraw the product frthe market because the product continues to meet an important medical need in the U.S. Nembutal is used to treat seriousconditions such as a severe and life threatening emergency epilepsy.
In a recent survey of more than 200 U.S. physicians and pharmacists conducted by independent third-party researchcompanies, 90 percent of the respondents stated that options for treating patients requiring emergency control of certain acuconvulsive episodes would be compromised if Nembutal were no longer available for use. Furthermore, 95 percent ofrespondents reported that it is very important for their institution to have access to Nembutal for potential use in the medicalcare of patients. All survey respondents were from academic institutions, large community hospitals or epilepsy centers in theU.S.
Contacts
2a
7/27/2019 Sepulvado Stay Application and Appendix
43/133
Mads Kronborg, Media Relations ManagerTelephone (direct): +45 36 43 28 51
Simon Augustesen, Media RelationsTelephone (direct): +45 36 43 49 80
About Lundbeck
H. Lundbeck A/S (LUN.CO, LUN DC, HLUKY) is an international pharmaceutical company highly committed to improving thequality of life for people suffering from central nervous system (CNS) disorders. For this purpose Lundbeck is engaged in theresearch and development, production, marketing and sale of pharmaceuticals across the world, targeted at disorders such depression and anxiety, schizophrenia, insomnia, Huntington's, Alzheimer's and Parkinson's diseases.
Lundbeck was founded by Hans Lundbeck in 1915 in Copenhagen, Denmark, and today employs 5,900 people worldwide.Lundbeck is one of the world's leading pharmaceutical companies working with CNS disorders. In 2010, the company's revenwas DKK 14.8 billion (approximately EUR 2.0 billion or USD 2.6 billion). For more information, please visit www.lundbeck.com
3a
7/27/2019 Sepulvado Stay Application and Appendix
44/133
APPENDIX B
4a
7/27/2019 Sepulvado Stay Application and Appendix
45/133
H. Lundbeck A/S
Ottiliavej 9 Tlf +45 36 30 13 11 E-mail [email protected]
DK-2500 Valby, Denmark Fax +45 36 43 82 62 www.lundbeck.com
Press release
Valby, 22 December 2011
Lundbeck divests several products in the US as part of long-term business strategy
The divestiture of a portfolio of products, including Nembutalsupports Lundbecks
long-term strategy to focus on newer, strategic products in its US subsidiary portfolio.
H. Lundbeck A/S (Lundbeck) today announced that the company has entered into an
agreement with Akorn Inc. (Akorn) whereby Akorn has acquired a portfolio of products
comprising Nembutal(pentobarbital sodium injection, USP), Cogentin
(benztropine
mesylate injection) and Intravenous Sodium Diuril(chlorothiazide sodium). This transaction
is part of Lundbecks long-term strategy to focus on newer, strategic products in its portfolio.
As part of the agreement, Akorn will continue with Lundbecks restricted distribution
programme for Nembutal, which was implemented to restrict the use of the product in the
US.
The three products became part of Lundbecks product portfolio through the acquisition
of Ovation Pharmaceuticals, Inc. in 2009, and the medicines have never been of
strategic importance to Lundbeck. Moving forward, Lundbeck will focus on newer
therapies within its product portfolio that predominantly address central nervous system
(CNS) disorders. In the coming years, Lundbeck US plans to launch OnfiTM
for the
treatment of Lennox-Gastaut syndrome,aripiprazole depot formulation for the treatment ofschizophrenia and Lu AA21004 for the treatment of major depressive disorder.
The US market is a key growth driver for Lundbeck. This transaction allows us to focus on
newer, strategic products with significant revenue potential, such as OnfiTM
,aripiprazole depot
and Lu AA21004, says Ulf Wiinberg, President & Chief Executive Officer at Lundbeck.
Under the terms of the agreement, Akorn has acquired and retains all of Lundbecks rights
and responsibilities for the manufacturing, distribution and sale of the three products included
in the agreement. The agreement concerns Lundbecks US rights for Nembutaland global
rights, including US, for Cogentinand Diuril
..
According to the agreement, Akorn will upfront and as a milestone payment after three years
pay a maximum of $60 million in cash. Lundbeck will not receive any royalties based on future
Nembutalsales. The transfer of the product portfolio is immediate, although certain filings
will still need to be made with the applicable regulatory authorities to reflect the transfer. For a
specified time period, Lundbeck will perform certain services on behalf of Akorn to ensure that
these products will continue to be available to meet the unmet medical needs of patients.
5a
7/27/2019 Sepulvado Stay Application and Appendix
46/133
Lundbeck contacts
Mads Kronborg Simon Mehl Augustesen
Media Relations Manager International Media [email protected] [email protected]
+45 36 43 28 51 +45 36 43 49 80
About Lundbeck
H. Lundbeck A/S (LUN.CO, LUN DC, HLUKY) is an international pharmaceutical company
highly committed to improve the quality of life for people suffering from central nervous
system (CNS) disorders. For this purpose Lundbeck is engaged in the research and
development, production, marketing and sale of pharmaceuticals across the world, targeted at
disorders like depression and anxiety, schizophrenia, insomnia, Huntington's, Alzheimer's and
Parkinson's diseases.
Lundbeck was founded by Hans Lundbeck in 1915 in Copenhagen, Denmark, and today
employs 5,900 people worldwide. Lundbeck is one of the world's leading pharmaceutical
companies working with CNS disorders. In 2010, the company's revenue was DKK 14.8
billion (approximately EUR 2.0 billion or USD 2.6 billion). For more information, please visit
www.lundbeck.com.
6a
mailto:[email protected]:[email protected]:[email protected]:[email protected]7/27/2019 Sepulvado Stay Application and Appendix
47/133
APPENDIX C
7a
7/27/2019 Sepulvado Stay Application and Appendix
48/133
CAPITAL POST-CONVICTION PROJECT OF LOUISIANA1340 POYDRAS SUITE 17
NEW ORLEANS, LOUISIANA 701 1 2PHONE: (504) 212-2110 / FAX: (504) 212-2130
GARY CLEMENTS ESQ.DIRECTOR
E"MA L: [email protected]
April 16, 2012Louisiana Department of CorrectionsP.O. Box 94304 By Fax: 225-342-3095And 1 t Class MailBaton Rouge, Louisiana 70804-9304Attn: Department ofCorrections Secretary James M. LeBlanc
Re: Request for Public Records re:Drugs Used by the Department o Corrections n Executing a Sentence o Deathby Lethal InjectionDear Mr. LeBlanc:Pursuant to the Louisiana Public Records Act, La.R.S. 44:1, et seq. I hereby request a copy ofthe following material:
Any and all documentary material possessed by the LouisianaDepartment of Correction (DOC), including at the Louisiana StatePenitentiary at Angola, relating the DOC s possession of or ability toobtain sodium thiopental or any other chemical anesthetic for use inlethal injection executions in Louisiana. This includes but is notlimited to:o The current, total quantity of sodium thiopental in thepossession of or readily obtainable by the DOC;o The date(s) of expiration of the sodium thiopental in thepossession of or readily obtainable by the DOC. f there aredistinct quantities of sodium thiopental with differentexpiration dates, please indicate such.o The names and countries of origin of the manufacturer(s) anddistributer(s of the sodium thiopental currently possessed byor readily obtainable by the DOC and all communicationsbetween the DOC and said manufacturer(s) and distributer(s).This includes but is not limited to any pending, fulfilled,refused, or partially fulfilled requests or orders by the DOC forquantities of sodium thiopental.o The current, total quantity of any other anesthetic chemicalbesides the sodium pentothal in the possession of or readilyobtainable by the DOC;
USCA5 2
8a
7/27/2019 Sepulvado Stay Application and Appendix
49/133
Page 2 ofApril 16,2012Letter re: PRA Request Drugs for Use in Louisiana Executions by Lethal Injection
o The date(s of expiration of any other anesthetic chemicalbesides the sodium thiopental in the possession of or readilyobtainable by the DOC. If there are distinct quantities ofsodium thiopental with different expiration dates, pleaseindicate such.o The names and countries of origin of the manufacturer(s) anddistributer(s) of any other anesthetic chemical besid
Top Related