JEFFERSON S. DUNN, COMMISSIONER, Alabama Department of Corrections, et al., Defendants/Appellants,
v.
DOYLE LEE HAMM, Plaintiff/Appellee. Number District Court Finding Number District Court Finding Number District Court Finding Reference Number District Court Finding Reference Number District Court Finding Reference Level at which plaintiff has established his case and satisfied his burden of proof Legal ruling Legal Standard
On
Emergency Appeal to Vacate Stay of Execution Entered in the
United States District Court for the Northern District of
Alabama by Chief Judge Karon O. Bowdre (No.
2:17-cv-02083-KOB)
Bernard E. Harcourt, Counsel for Doyle Lee Hamm.
DOYLE HAMM'S RESPONSE BRIEF
CERTIFICATE
OF INTERESTED PERSONS
Undersigned
counsel certifies that the following persons may have an
interest in the outcome of this case: Allen, Richard, former
Commissioner, Department of Corrections;
Armstrong,
Jeremy, former Assistant Attorney General during the
post-conviction proceedings;
Bolling,
Leon, Warden of Donaldson Correctional Facility and defendant
in this action;
Bowdre,
Karon Owen, Chief Judge of the United States District Court
for the Northern District of Alabama;
Brasher,
Andrew, Solicitor General of the State of Alabama;
Carnes,
Edward E., Chief Judge of the United States Court of Appeals
for the Eleventh Circuit, former Chief of the Capital
Punishment and Post-Conviction Litigation Division of the
Alabama State Attorney General's Office during Doyle
Hamm's case;
Crenshaw,
J. Clayton, Assistant Attorney General;
Cunningham,
Patrick, victim; Dobbs-Ramey, Kimberly, prior counsel for
Plaintiff-Appellee;
Dunn,
Jefferson S., Commissioner of the Alabama Department of
Corrections and defendant; Folsom, Fred C., trial judge;
Forrester,
Nathan, former Solicitor General for the State of Alabama
during the post-conviction appeal;
Govan,
Jr., Thomas R., counsel for the appellants;
Hamm,
Doyle Lee, plaintiff-appellee;
Harcourt,
Bernard E., counsel for plaintiff-appellee;
Hardeman,
Donald, Cullman County Circuit Court Judge and
post-conviction judge;
Harris,
Hugh, prior counsel for plaintiff-appellee;
Hughes,
Beth Jackson, Assistant Attorney General, counsel for the
appellants;
King,
Troy, former Alabama Attorney General during the federal
habeas proceedings;
Little,
William D., Assistant Attorney General during the direct
appeal;
Marshall,
Steve, Alabama Attorney General;
Morin,
Robert, counsel for Doyle Hamm on appeal to the United States
Supreme
Court
on direct appeal; Nail, Pamela, prior counsel for
plaintiff-appellee;
Newsome,
Kevin C, former Solicitor General for the State of Alabama
during post-conviction proceedings;
Nunnelley,
Kenneth, former Assistant Attorney General during
post-conviction proceedings;
Pry or,
William H., former Alabama Attorney General during the
post-conviction proceedings;
Roden,
Douglas, co-defendant; Roden, Regina, co-defendant;
Siegleman,
Don, former Alabama Attorney General during the direct
appeal;
Stewart,
Cynthia, Warden of Holman Correctional Facility and defendant
in this action;
Stewart,
Sandra J., former Assistant Attorney General during the
direct appeal; Strange, Luther, former Alabama Attorney
General;
Thomas,
Kim, former Commissioner, Alabama Department of Corrections;
and Williams, Martha E., prior counsel for
plaintiff-appellee.
Statement
Regarding Oral Argument
Appellee-Plaintiff
Doyle Lee Hamm respectfully requests oral argument on
appellants' motion to vacate pursuant to Federal Rule of
Appellate Procedure 34(a)(1) and Rule 28-1(c) of the Eleventh
Circuit Rules, as well as FRAP 27(e) and Eleventh Circuit
Rule 27-1(f) which state that motions can be argued with
approval of this Court. This is a unique as-applied
challenge to an execution by lethal intravenous injection
that is set for Thursday, February 22, 2018. It is completely
different from the other facial challenges that this Court
has recently addressed. This execution, if it is allowed to
proceed, is likely to cause exceptionally severe and
unnecessary pain and suffering to Doyle Hamm, in violation of
the Eighth and Fourteenth Amendments to the United States
Constitution. Because of Doyle Hamm's diagnosed lymphatic
cancer and carcinoma, and his current medical condition of
compromised peripheral veins, this execution is likely to be
the first time that the State of Alabama attempts central
venous access, a complicated medical procedure made
multiple-times more risky because of Doyle Hamm's
particular medical conditions. Accordingly, this death
penalty case raises unique and procedurally complex matters,
and for these reasons, Doyle Hamm firmly believes that oral
argument is necessary to assist the Court in ruling on
defendants' emergency motion to vacate the stay. Doyle
Hamm respectfully requests oral argument on appellants'
motion.
Table
of Contents
Certificate
of Interested Persons
.................................................................
1
Statement
Regarding Oral Argument
.......................................................... ii
Table
of
Contents……………………………………………………………...iii
Table
of Citations
...............................................................................................
v
Statement
of the Case
........................................................................................
1
Summary
of the Argument
................................................................................
2
Argument
...............................................................................................................
7
I. The
District Court Properly Found That Doyle Hamm Established a
Substantial Likelihood of Success on the Merits
........................................ 7
A. The
district court made specific factual findings establishing
that Doyle Hamm demonstrated a substantial likelihood of
success on the merits. . ......... 10
B. The
district court did not conflate the summary judgment standard
with the standard for a stay of execution
........................................................................
19
C. The
district court correctly granted a stay where the record
clearly establishes that Doyle Hamm has medical conditions
that raise a substantial risk of unnecessary pain and
suffering if executed as appellants plan. . ........... 22
II. The
District Court Did Not Abuse Its Discretion, But Correctly
Decided That Doyle Hamm Timely Filed His §1983 Lawsuit
.................................................. 33
A. As a
preliminary matter, the appellants have delayed this case for
twelve (12) of the preceding twelve months. .
..............................................................
33
B. The
procedural history conclusively establishes that Hamm did not
delay filing his §1983 lawsuit. .
..................................................................................
38
C. The
district court did not abuse its discretion when it found
that Doyle Hamm did not delay filing his §1983 lawsuit.
. ................................................ 45
III.
The District Court Did Not Abuse Its Discretion When It Found
No Substantial Risk Of Harm To Defendants And That A Stay Of
Execution Would Not Be Adverse To The Public
Interest..............................................................47
Conclusion........................................................................................................................................50
Table
of Citations
Anderson
v. City of Bessemer, 470 U.S. 564
(1985)..............................................18
Arthur
v. Haley, 248 F.3d 1302 (11th Cir.
2001)...................................................10
Baze
v. Rees, 553 U.S. 35
(2008).............................................................................6
Brewer
v. Landrigan, 562 U.S. 996
(2010)..............................................................9
Bucklew
v. Lombardi, 565 Fed.Appx. 562 (8th Cir.
2014).............................10, 35
Chavez
v. Fl. P.S. Warden, 742 F.3d 1267 (11th Cir.
2014)..................................14
Colo.
River Water Conservation Dist. v. United States, 424
U.S. 800 (1976).......42
Ferguson
v. Sec, Fla. Dep't of Corr., 494 Fed.Appx. 25 (11th
Cir. 2012) ...........9
Glossip
v. Gross, 135 S.Ct. 2726
(2015)..................................................................6
Grayson
v. Allen, 499 F.Supp.2d 1228 (M.D. Ala.
2007)................................44, 45
Hale
v. Pate, 694 Fed.Appx. 682 (11th Cir.
2017)................................................42
Hallford
v. Allen, 634 F.Supp.2d 1267 (S.D. Ala.
2007).......................................45
Helling
v. McKinney, 509 U.S. 25
(1993)................................................................6
Hill
v. McDonough, 547 U.S. 573
(2006)....................................................7,
13, 37
Huffman
v. Pursue, Ltd., 420 U.S. 592
(1975).......................................................41
In
re Kemmler,136 U.S. 436
...