United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE
Hakim Marcelle Ray is set to be executed on February 7, 2019
- punishment for robbing, raping, and murdering
fifteen-year-old Tiffany Harville. This case is not about
whether Ray may be executed; other courts have affirmed his
death sentence. This case is instead about when
the execution will take place, who will be inside
the execution chamber, and how the execution will be
carried out. To be specific, Ray seeks an eleventh-hour stay
of his execution so that the court can resolve three issues.
The first is whether Ray may have a private spiritual advisor
inside the execution chamber during his execution. The second
is whether Ray may exclude a state chaplain from the
execution chamber. The third is whether Ray may elect to be
executed by nitrogen hypoxia instead of by lethal injection.
undeniably difficult for an inmate to show that he is
entitled to a stay. Among other things, he must show a
substantial likelihood of success on the merits and that a
stay would not harm the public interest. DeYoung v.
Owens, 646 F.3d 1319, 1324 (11th Cir. 2011). This bar is
even higher when an inmate waits too long to request a stay.
In fact, courts apply “a strong equitable presumption
against the grant of a stay where a claim could have been
brought at such a time as to allow consideration of the
merits without requiring entry of a stay.” Hill v.
McDonough, 547 U.S. 573, 584 (2006) (quoting Nelson
v. Campbell, 541 U.S. 637, 650 (2004)).
could have brought this case long before he did, and he has
not overcome the resulting “strong equitable
presumption” against a stay. Ray also fails to show
that he has a substantial likelihood of success on the merits
and that a stay would not harm the public interest. As a
result, Ray is not entitled to a stay of execution. The court
will enter a consent order requiring that the state prison
chaplain not be in the execution chamber during Ray's
execution. But the court will not order the State to let
Ray's private spiritual advisor be in the execution
chamber. Nor will it order the State to execute Ray
by nitrogen hypoxia.
JURISDICTION AND VENUE
court has subject-matter jurisdiction under 28 U.S.C.
§§ 1331 and 1343. The parties do not contest
personal jurisdiction or venue.
Ray is set to be executed for the 1995 murder of Tiffany
1995, Ray robbed, raped, and murdered fifteen-year-old
Tiffany Harville. He had previously murdered two teenaged
brothers. He was convicted in Dallas County Circuit Court of
both capital murder committed during first-degree rape and
capital murder committed during first-degree robbery. The
jury recommended a death sentence by a vote of eleven to one,
and the judge sentenced Ray to death. The Alabama Court of
Criminal Appeals affirmed on direct appeal. Ray v.
State, 809 So.2d 875, 891 (Ala.Crim.App.2001), cert.
denied, 809 So.2d 891 (Ala. 2001), cert.
denied, 534 U.S. 1142 (2002).
his direct appeal, Ray collaterally attacked his conviction
in state court. The Dallas County Circuit Court denied
Ray's petition after a three-day evidentiary hearing. The
Alabama Court of Criminal Appeals affirmed. Ray v.
State, 80 So.3d 965, 997 (Ala.Crim.App.2011), cert.
denied, 80 So.3d 997 (Ala. 2011).
then filed a federal habeas petition under 28 U.S.C. §
2254. The Southern District of Alabama denied Ray's
petition in its entirety. Ray v. Thomas, No. 11-cv-
543, 2013 WL 5423816, at *61 (S.D. Ala. Sept. 27, 2013). It
also denied a certificate of appealability, id., and
a motion to alter or amend the judgment, Ray v.
Thomas, No. 11-cv-543, 2013 WL 5979757, at *9 (S.D. Ala.
Nov. 12, 2013). The Eleventh Circuit affirmed. Ray v.
Ala. Dep't of Corr., 809 F.3d 1202, 1211 (11th Cir.
2016), cert. denied, 137 S.Ct. 417 (2016),
reh'g denied, 137 S.Ct. 844 (2017).
November 6, 2018, the Supreme Court of Alabama set February
7, 2019, as Ray's execution date. Ray v. Thomas,
No. 11-cv-543, Doc. # 50 (S.D. Ala. filed Nov. 6, 2018). He
will be executed at the Holman Correctional Facility in
Atmore, Alabama. See Ala. Code § 15-18-82(b).
The State protocol for executions
death-row inmate in Alabama has religious rights during the
days and hours approaching his execution. Executions are on
Thursdays, starting at 6:00 p.m. An inmate may visit with
family, friends, attorneys, and spiritual advisors of his
choice on the Monday, Tuesday, and Wednesday before his
execution. He may also visit with family, friends, attorneys,
and spiritual advisors of his choice until 4:30 p.m. on the
day of execution. These are all “contact visits,
” meaning no barrier is between the inmate and his
goodbyes are said at 4:30 p.m. on Thursday, the inmate is
taken to a holding cell next to the death chamber. A private
spiritual advisor may accompany the inmate to the holding
cell to await the final walk to the chamber. But the State
does not let the private spiritual advisor accompany the
inmate into the execution chamber itself. Instead, the
advisor must stay a few feet behind the glass wall of the
chamber, in the viewing area reserved for the inmate's
family and friends. There is no contact between the inmate
and those in the viewing area.
state-employed chaplain is a member of the execution team and
is usually in the death chamber during executions. The
current chaplain is a Christian. The state has never allowed
an inmate's private spiritual advisor to be inside the
chamber during an execution, regardless of the private
spiritual advisor's religious affiliation. (Doc. # 20, at
default, an inmate “shall be executed by lethal
injection.” Ala. Code § 15-18-82.1(a). An inmate
has “one opportunity to elect that his or her death
sentence be executed by . . . nitrogen hypoxia.”
Id. § 15-18-82.1(b). But to be executed by
nitrogen hypoxia, Ray had to request it in writing by July 1,
2018. See Id. § 15-18-82.1(b)(2). He did not
elect nitrogen hypoxia until January 29, 2019. (Doc. # 12, at
8, 17.) Because Ray made his election several months too
late, the State denied his request.
Ray filed this action ten days before his scheduled
a devout Muslim. According to his attorneys, he has been a
Muslim since at least 2006. (Doc. # 10.) Ray has had contact
visits with a Muslim spiritual advisor (an imam) during his
incarceration, including a contact visit this week. (Doc. #
1, at 7; Doc. # 12, at 7.)
Ray is Muslim, he objects to the presence of a Christian
chaplain in the death chamber during his execution. The State
agrees not to require its chaplain to be in the chamber. Ray,
however, requests more accommodations than that. He wants his
private spiritual advisor with him in the death chamber
during the execution. He also wants to be executed by
nitrogen hypoxia instead of by lethal injection. (Doc. # 1,
at 8-12; Doc. # 12, at 14-15.) The State has denied both
requests. Ray claims the State's denials substantially
burden his religious exercise, that the State lacks a
compelling interest, and that the State could further any
interests it does have in a less-restrictive manner.
January 28, 2019, Ray sued the State under the Religious Land
Use and Institutionalized Persons Act of 2000 (RLUIPA), 42
U.S.C. § 2000cc et seq., and the Establishment
Clause of First Amendment. (Doc. # 1.) He filed an Emergency
Motion for Stay of Execution on the same day. (Doc. # 4.) On
January 31, 2019, the State responded to Ray's initial
complaint (Doc. # 11) and Ray filed an amended complaint
(Doc. # 12). The court also held a hearing on January 31.