Hall v. Barr
| Decision Date | 16 November 2020 |
| Docket Number | Civil Action No. 20-cv-3184 (TSC) |
| Parties | ORLANDO CORDIA HALL, Plaintiff, v. WILLIAM P. BARR, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Plaintiff Orlando Cordia Hall, an inmate on federal death row, has filed this action to delay his November 19, 2020 execution. Though he was sentenced to death in 1995, this court enjoined his execution pending resolution of challenges brought by several federal death row inmates to an earlier version of the Bureau of Prisons' (BOP) execution protocol. Having found those claims obsolete given the BOP's adoption of a new protocol in 2019 (the 2019 Execution Protocol or the Protocol), the court vacated the injunction barring Plaintiff's execution on September 20, 2020. Ten days later, BOP noticed Plaintiff's execution for November 19, 2020, thus providing him fifty days' notice.
Plaintiff argues that the timing of his execution, particularly given the COVID-19 pandemic, deprives him of meaningful access to, and representation in, the clemency process in violation of his rights under the Due Process Clause and 18 U.S.C. § 3599. He further contends that the fifty-day notice violates his rights under the Due Process Clause, the Ex Post Facto Clause, and the Equal Protection Clause. He also alleges that the 2019 Execution Protocol constitutes ultra vires agency action in violation of the Federal Death Penalty Act (FDPA), a claim the court has already addressed and dismissed in the Execution Protocol Cases litigation.
Before the court are Plaintiff's motion for a temporary restraining order and/or preliminary injunction, (ECF No. 3), and Plaintiff's emergency motion for a hearing, (ECF No. 14). For the reasons set forth below, Plaintiff's motions will be DENIED.
Plaintiff was sentenced to death by the U.S. District Court for the Northern District of Texas in October 1995 and is currently incarcerated at the United States Penitentiary, Terre Haute. His conviction and sentence were affirmed on direct appeal, and his motion to vacate his sentence under 28 U.S.C. § 2255 was denied by both the District Court and the U.S. Court of Appeals for the Fifth Circuit. Several years later, based on intervening Supreme Court decisions, Plaintiff sought permission to file a successive § 2255 petition to challenge his firearm conviction under 18 U.S.C. § 924(c). The Fifth Circuit rejected that request late last month. See In re Hall, 2020 WL 6375718 (5th Cir. Oct. 30, 2020).
After Plaintiff's initial unsuccessful § 2255 challenge in 2007, he intervened in a pending civil action brought in this court by other federal death row prisoners challenging the BOP's lethal injection protocol. (Roane v. Gonzales, No. 05-cv-2337 (D.D.C.), ECF No. 38.) The court thereafter entered a preliminary injunction barring Plaintiff's execution and consolidated that case along with similar cases brought by other federal death row prisoners into a single action. (See generally Execution Protocol Cases, No. 1:19-mc-145.) The injunction remained in place from June 11, 2007 until September 20, 2020. (Execution Protocol Cases, ECF No. 266.)
On October 30, 2020, thirty days after BOP noticed Plaintiff's execution date, Plaintiff's counsel emailed the Office of the Pardon Attorney and the White House Counsel's office,detailing the need for an investigation and requesting additional time to prepare Plaintiff's clemency application given the extraordinary conditions created by the COVID-19 pandemic. On November 2, 2020, a staff member from the Office of the Pardon Attorney at the Department of Justice advised Plaintiff's counsel that the office lacked the authority to reprieve, withdraw, or reschedule an execution date. (Compl. ¶ 120). Nevertheless, the staff member indicated that the October 30 email could be construed as a petition for commutation and that the Pardon Attorney would be willing to hold a telephonic hearing during the week of November 2. (See Compl. Ex. 13.) Counsel for Plaintiff informed the Office of the Pardon Attorney that such a request could not be properly construed as a petition for commutation and that agreeing to treat the request for an extension as a clemency petition may constitute a violation of counsel's professional obligations to Plaintiff. (Compl. Ex. 12.) Accordingly, Plaintiff did not file a clemency petition.
On November 3, 2020, Plaintiff filed a complaint and motion for a temporary restraining order and/or a preliminary injunction with this court.
The standards for a temporary restraining order and a preliminary injunction are identical. See Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977). In considering whether to grant the "extraordinary remedy" afforded by injunctive relief, courts assess four factors: (1) the likelihood of the plaintiff's success on the merits, (2) the threat of irreparable harm to the plaintiff absent an injunction, (3) the balance of equities, and (4) the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 24 (2008) (citations omitted); John Doe Co. v. Consumer Fin. Prot. Bureau, 849 F.3d 1129, 1131 (D.C. Cir. 2017). The U.S. Court of Appeals for the District of Columbia Circuit has traditionally evaluated claimsfor injunctive relief on a sliding scale, such that "a strong showing on one factor could make up for a weaker showing on another." Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011). It has been suggested, however, that a movant's showing regarding success on the merits "is an independent, free-standing requirement for a preliminary injunction." Id. at 393 (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)).
Defendants first argue that Plaintiff's motion is inexcusably delayed and could be denied on that basis alone. (See ECF No. 15, Def. Opp'n at 3-4.) The argument is not without merit. As the Supreme Court has made abundantly clear, particularly in the death penalty context, the "'last-minute nature of an application' that 'could have been brought' earlier . . . 'may be grounds for denial of a stay'" or other equitable relief. Bucklew v. Precythe, 139 S. Ct. 1112, 1134 (2019) (quoting Hill v. McDonough, 547 U.S. 573, 584 (2006)). Plaintiff was notified of his execution on September 30, but waited until November 3—a little more than two weeks before his execution—to file suit. Nevertheless, the court is unwilling to deny Plaintiff's motion on this basis. While the delay has certainly put the parties and the court on a tight timeline to resolve the motion, taking thirty days to file a new complaint and accompanying motion for relief is not per se unreasonable. Furthermore, many of the events described in the Complaint occurred several days before it was filed. (See, e.g., Compl. ¶¶ 118-21 ().)
Plaintiff first contends that the timing of his November 19 execution deprives him of clemency representation and access to the clemency process in violation of his Fifth Amendmentprocedural due process rights (Counts I and II), and his statutory right to clemency representation pursuant to 18 U.S.C. § 3599 (Count III) ("the clemency claims"). Next, he argues that the fifty-day execution notice violates his Fifth Amendment substantive due process rights (Count IV), and inflicts a greater punishment in violation of the Ex Post Facto Clause (Count V) ("the notice claims"). Plaintiff also alleges that, in providing only fifty days' notice, Defendants arbitrarily treated him differently from other similarly situated inmates in violation of the Equal Protection Clause (Count VII). Finally, Plaintiff recycles an argument made in the Execution Protocol Cases litigation, arguing that the 2019 Protocol violates the FDPA (Count VI). Based on the record before it, including the Supreme Court's rulings in other challenges to the 2019 Protocol, the court finds that Plaintiff is unable to show a likelihood of success on any of these claims.
Plaintiff alleges that Defendants are violating his procedural due process and statutory rights by executing him in the middle of a pandemic, which has made it impossible to meaningfully pursue clemency. The argument raises issues that the court finds troubling, but, ultimately, unlikely to succeed.
"The Fifth Amendment Due Process Clause protects individuals from deprivations of 'life, liberty, or property, without due process of law.'" Atherton v. D.C. Office of Mayor, 567 F.3d 672, 689 (D.C. Cir. 2009) ). A procedural due process violation Id. (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)).
At issue here is Plaintiff's continued interest in life, which he claims is burdened by his inability to have meaningful access to the clemency process. (See ECF No. 3-1, Pl. Mem. at 16-17.) Notwithstanding an impending execution, a death row inmate "maintains a residual life interest, e.g., in not being summarily executed by prison guards." Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 281 (1998) (plurality opinion) (Rehnquist, C.J.). Indeed, Id. at 289 (O'Connor, J., concurring in part); see also id. at 291 (Stevens, J., concurring in part and dissenting in part) (...
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