marcus wellons - scotus stay motion

8/12/2019 Marcus Wellons - SCOTUS Stay Motion

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No. ___________

In the Supreme Court of the United States

October Term, 2013____________________________

MARCUS A.WELLONS,

Petitioner,

V.

BRIAN OWENS,Commissioner, Georgia Department of Corrections,

BRUCE CHATMAN,Warden, Georgia Diagnostic and Classification Prison, and

OTHER UNKNOWN EMPLOYEES AND AGENTS,Georgia Department of Corrections,

Respondents.

_____________________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

_____________________________

MOTION FOR A STAY OF EXECUTION

_____________________________

TO: THE HONORABLE CLARENCE THOMAS, ASSOCIATE JUSTICE,

SUPREME COURT OF THE UNITED STATES

Petitioner Marcus Wellons, a death-sentenced prisoner in the State of Georgia,

requests that this Court stay his execution currently scheduled for 7:00 p.m. on Tuesday,

June 17, 2014, until further order of this Court, in order to permit the consideration and

disposition of his petition for writ of certiorari to the United States Court of Appeals for

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the Eleventh Circuit.

PROPOSED QUESTIONS PRESENTED

Appellants refuse to disclose the provenance of the compounded drugs or the

qualifications of the personnel who will administer them when executing Mr. Wellons by

lethal injection this evening.

1) Does Appellants refusal to disclose information necessary to determine whether

their chosen method of execution will create a substantial risk of significant

harm violate Mr. Wellonss rights pursuant to the Eighth and Fourteenth

Amendments to the United States Constitution?

2) Does Appellants refusal to disclose information necessary to determine whether

their chosen method of execution will create a substantial risk of significant

harm deprive him of due process of law and access to the courts in violation of

Mr. Wellonss rights pursuant to the Fifth and Fourteenth Amendments to the

United States Constitution?

3) Does Appellants refusal to allow access to information about a governmental

proceeding of public interest and to which the public has traditionally had access

violate Mr. Wellonss rights pursuant to the First Amendment to the United States

Constitution?

JURISDICTION

Mr. Wellons invokes this Court's jurisdiction to stay his execution under 28 U.S.C.

1254 and Rule 23 of the Rules of the Supreme Court of the United States, pending the

filing and disposition of a petition for writ of certiorari to the United States Court of

Appeals for the Eleventh Circuit.

PROCEDURAL HISTORY

Mr. Wellons was convicted of malice murder and rape and sentenced to death in

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the Superior Court of Cobb County in 1993. The Supreme Court of Georgia affirmed Mr.

Wellonss convictions and sentences, Wellons v. State, 463 S.E.2d 868 (1995), and this

Court denied Mr. Wellonss certiorari petition, Wellons v. Georgia, 519 U.S. 830 (1996).

Mr. Wellons sought state habeas corpus relief, which was denied. Mr. Wellons filed a

petition for writ of habeas corpus in the District Court for the Northern District of

Georgia which was denied. The Eleventh Circuit Court of Appeals affirmed the denial of

relief on June 25, 2010. Wellons v. Hall, 554 F.3d 923 (11th Cir. 2006). This Court

granted Mr. Wellonss petition for writ of certiorari and remanded Mr. Wellonss case for

further consideration. Wellons v. Hall, 558 U.S. 220 (2010). After the Eleventh Court1

remanded Mr. Wellonss case to the district court for further proceedings consistent with

the Supreme Courts opinion, Wellons v. Hall, 603 F. 3d 1326 (11th Cir. 2010), that

court entered its order and judgment denying habeas corpus relief on August 5, 2011.

The Eleventh Circuit affirmed the district courts denial of Mr. Wellonss habeas petition

on September 19, 2012. This Court denied his petition for a writ of certiorari on October

This Court found no procedural bar for Mr. Wellonss claims of judge, juror, and1

bailiff misconduct, which centered upon unreported ex parte contacts between the jury

and the judge, that jurors and a bailiff had planned a reunion, and that either during or

immediately following the penalty phase, some jury members gave the trial judge

chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts ....

Wellons,558 U.S. 220 (From beginning to end, judicial proceedings conducted for thepurpose of deciding whether a defendant shall be put to death must be conducted with

dignity and respect).

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7, 2013. Wellons v. Humphrey,134 S.Ct. 177 (2013). Pursuant to an order entered by the

Superior Court of Cobb County on May 28, 2014, Appellants have scheduled Mr.

Wellons for execution on June 17, 2014.

On June 12, 2014, Mr. Wellons filed a complaint pursuant to 42 U.S.C. 1983 in

the United States District Court for the Northern District of Georgia seeking declaratory

and injunctive relief. Mr. Wellons concurrently a motion for a temporary restraining

order and stay of execution. That Court denied that motion and granted Appellants

motion to dismiss on June 16, 2014. Earlier today, Mr. Wellons appealed that judgment

to the Eleventh Circuit Court of Appeals. That Court denied his appeal. This timely

petition for a writ of certiorari follows.

REASONS FOR GRANTING A STAY

For a Circuit Justice to grant a stay of execution, a petitioner must show: 1)

irreparable injury if no stay is granted; 2) a reasonable probability that four (4) members

of the Court will consider the issue [presented] sufficiently meritorious to grant

certiorari, Graves v. Burnes, 405 U.S. 1201 (1972) (Powell, Circuit Justice), or a

reasonable probability that a plurality of the Court would grant relief on an original

habeas petition; and, 3) a likelihood of success on the merits. See Barefoot v. Estelle, 463

U.S. 880, 893 (1983);see also Fare v. Michael C., 439 U.S. 1310 (1978) (Rehnquist,

Circuit Justice). Mr. Wellons respectfully submits that he meets these standards.

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A. Irreparable Injury

If no stay is granted, Mr. Wellons will be executed at 7:00 p.m. this evening. This

constitutes irreparable injury. See, e.g., Evans v. Bennett, 440 U.S. 1301, 1306 (1979)

(Rehnquist, Circuit Justice, granting a stay of execution and noting the obvious

irreversible nature of the death penalty); OBryan v. Estelle, 691 F.2d 706, 708 (5th Cir.

1982) (the irreversible nature of the death penalty constitutes irreparable injury and

weighs heavily in favor of granting a stay). Further, the concerns that Mr. Wellons have

raised go to whether Appellants refusal to disclose information concerning the

provenance of their execution drugs and the qualifications of the personnel has concealed

a substantial risk of significant harm when they carry out his lethal injection this

evening. The potential injury, then, is not only his death, but a death by cruel and unusual

punishment. Mr. Wellons asked the district court and the Eleventh Circuit to stay his

execution based upon Eighth and Fourteenth Amendment concerns that are legitimate and

being raised repeatedly across the country. Given these facts and concerns, a Stay of

Execution will in no way prejudice the State.

B. Probability That The Court Will Grant The Writ, and Likelihood of Success

In his petition for a writ of certiorari, Mr. Wellons has detailed how Appellants

conduct violates his rights pursuant to the Constitution of the United States. Where, as

here, the petition demonstrates a likelihood of success in at least some respects a stay

should be granted. Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir. 1987). As his

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case involves issues that are debatable among jurists of reason; which a court could

resolve in a different manner]; and which involve questions [that] are adequate to

deserve encouragement to proceed further. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4,

(1983) (citations omitted).

As the facts in Mr. Wellonss case present troubling and substantial constitutional

issues, there is a reasonable likelihood that this Court would grant certiorari and that he

would prevail before this Court.

CONCLUSION

Wherefore, Mr. Wellons respectfully requests an Order staying his execution

pending consideration of his petition for writ of certiorari to the United States Court of

Appeals for the Eleventh Circuit.

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Respectfully Submitted this 17 day of June, 2014.th

/s/ Gerald W. King, Jr.

Gerald W. King, Jr. (Ga. Bar No. 140981)

Jeffrey Lyn Ertel (Ga. Bar No. 249966)

FEDERAL DEFENDER PROGRAM, INC.

101 Marietta Street, Suite 1500

Atlanta, Georgia 30303

404-688-7530

(fax) 404-688-0768

[email protected][email protected]

Mary Elizabeth Wells (Ga. Bar No. 747852)

LAW OFFICE OF M.E. WELLS

623 Grant Street SE


(404) 408-2180

ATTORNEYS FOR MARCUS WELLONS

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No. ___________

In the Supreme Court of the United States

October Term, 2013

____________________________

MARCUS A.WELLONS,

Petitioner,

V.

BRIAN OWENS,Commissioner, Georgia Department of Corrections,

BRUCE CHATMAN,Warden, Georgia Diagnostic and Classification Prison, and

OTHER UNKNOWN EMPLOYEES AND AGENTS,Georgia Department of Corrections ,

Respondents.

_____________________________

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

_____________________________

CERTIFICATE OF SERVICE

_____________________________

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I HEREBY CERTIFY that a true and correct copy of Marcus Wellonss MOTION

FOR A STAY OF EXECUTION are being furnished by United States mail, first-class

postage prepaid, to counsel for Respondents, Sabrina Graham, Assistant Attorney

General, 40 Capitol Square, SW, Atlanta, Georgia 30334-1300

This 17 day of June, 2014.th

/s/ Gerald W. King, Jr.

Gerald W. King, Jr. (Ga. Bar No. 140981)

Jeffrey Lyn Ertel (Ga. Bar No. 249966)

FEDERAL DEFENDER PROGRAM, INC.

101 Marietta Street, Suite 1500


404-688-7530

(fax) 404-688-0768

[email protected]

[email protected]

Mary Elizabeth Wells (Ga. Bar No. 747852)LAW OFFICE OF M.E. WELLS

623 Grant Street SE


(404) 408-2180

ATTORNEYS FOR MARCUS WELLONS

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