Montgomery v. Rosen
| Citation | 514 F.Supp.3d 213 |
| Decision Date | 28 December 2020 |
| Docket Number | Civil Action No. 20-3261 (RDM) |
| Court | U.S. District Court — District of Columbia |
| Parties | Lisa Marie MONTGOMERY, Plaintiff, v. Jeffrey A. ROSEN et al., Defendants. |
Sandra L. Babcock, Joseph Margulies, Zohra Ahmed, Cornell University School of Law School of Law, Ithaca, NY, Alec Schierenbeck, O'Melveny & Myers LLP, New York, NY, Meaghan VerGow, O'Melveny & Myers LLP, Washington, DC, Edward John Ungvarsky, Ungvarsky Law, PLLC, Alexandria, VA, for Plaintiff.
Alan Thomas Simpson, U.S. Departmen of Justice Office of United States Attorney, Kansas City, MO, Johnny Hillary Walker, III, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendants.
On November 19, 2020, this Court issued a memorandum opinion and order "briefly staying" the execution of Plaintiff Lisa Montgomery. See generally Montgomery v. Barr , No. 20-cv-3261, 2020 WL 6799140, at *11 (D.D.C. Nov. 19, 2020) (" Montgomery I "). As the Court explained in its memorandum opinion, the postponement of Montgomery's original execution date—December 8, 2020—was intended to allow her counsel, appointed pursuant to 18 U.S.C. § 3599, to recover from COVID-19 and to file a clemency petition on Montgomery's behalf. Montgomery I , 2020 WL 6799140, at *10. To provide Plaintiff's counsel with an opportunity to recover and to file a clemency petition, the Court enjoined Defendants "from executing Plaintiff Lisa Marie Montgomery before December 31, 2020." Dkt. 20. "In light of the Court's injunction and Montgomery's pending request for clemency, the Director of [the Bureau of Prisons ("BOP")] ... announced" on November 23, 2020 "that Montgomery's execution had been rescheduled for January 12, 2021." Dkt. 22-1 at 6; see also Dkt. 21.
Two motions are now before the Court. First, Montgomery asks the Court to "clarify" or "modify" its November 19, 2020 Memorandum Opinion and Order to "establish ... that th[e] Court's stay suspended Defendants’ authority to designate a new execution date during the pendency of the stay" and "that nothing in the Court's order relieved Defendants of their independent obligation under federal law to wait until ‘the stay is lifted’ to designate a ‘new date’ of execution under 28 C.F.R. § 26.3." Dkt. 28 at 7. Second, she moves for partial summary judgment, Dkt. 35, on both counts of her supplemental complaint, Dkt. 29-1, which challenges the lawfulness of the Director of BOP's order setting the January 12, 2021 execution date on the grounds that his action contravened both 28 C.F.R. § 26.3(a) and the Federal Death Penalty Act ("FDPA"), 18 U.S.C. § 3591 et seq.
In these overlapping motions, Montgomery raises several arguments. First, in her motion to clarify, she contends that this Court's order staying her execution " ‘temporarily suspend[ed]’ " Defendants' " ‘authority to act’ " with respect to her execution and thus deprived the Director of BOP ("Director") of authority to set a new execution date until after the stay expired. Dkt. 28 at 8 (quoting Nken v. Holder , 556 U.S. 418, 428–29, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) ). Second, in both her motion to clarify and in her motion for summary judgment, she argues that the regulations governing the scheduling of federal executions— 28 C.F.R. §§ 26.3, 26.4 —barred the Director from setting a new execution date until after the stay was lifted. Id. at 9–11; Dkt. 35 at 11–16. Third, in her motion for summary judgment, she contends that because the FDPA borrows "the law of the State in which the sentence [was] imposed" for purposes of supervising the "implementation of the sentence," 18 U.S.C. § 3596(a), the setting of her execution date must comply with a Missouri law that requires at least 90 days’ notice before a scheduled execution may occur and precludes "more than one warrant of execution per month," Mo. Sup. Ct. R. 30.30(f). Dkt. 35 at 16–18.
As explained below, the Court agrees with Montgomery that, when an execution is postponed in light of a stay, the governing regulation, 28 C.F.R. § 26.3(a), prevents the Director from setting a new execution date until after the stay is lifted. Because the Director set the new date here while the stay remained in place, he failed to comply with the regulation and, accordingly, his order must be set aside as "not in accordance with law," 5 U.S.C. § 706(2)(A), and "without observance of procedure required by law," id. § 706(2)(D). Having concluded that the Director's order must be set aside, moreover, the Court need not—and should not—reach Montgomery's remaining contentions. Because the regulation bars the Director from setting a new execution date before the stay is lifted, the Court need not decide whether the Court's stay might have independently deprived the Director of authority to reschedule the execution. And it is premature for the Court to decide whether the FDPA and Missouri law require that the Director schedule a new execution date to occur at least 90 days after he acts. Until the Director sets a new date, this question is purely hypothetical. The question, moreover, is not an easy one, and would be better answered with more time than allowed by the very expedited schedule that the parties and the Court now face.
The Court has previously recounted much of the relevant background, see Montgomery I , 2020 WL 6799140, and, accordingly, will only briefly summarize the facts here. In 2008, Montgomery was sentenced to death for kidnapping resulting in death in violation of 18 U.S.C. § 1201(a). Id. at *1. On October 16, 2020, the Director set Montgomery's execution date for December 8, 2020. Id. Under Pardon Office regulations, Montgomery had "30 days after [she] received notification from the Bureau of Prisons of the scheduled date of execution" to file a "petition for commutation of sentence," although the regulations permit a petitioner to supplement her application "no later than 15 days after the filing of the petition itself." 28 C.F.R. § 1.10(b). This meant Montgomery had to file her petition by November 15, 2020, although she could supplement that submission by November 30, 2020.
In early November, the two lawyers with principal responsibility for preparing Montgomery's clemency petition, Amy Harwell and Kelley Henry, fell ill with COVID-19, severely limiting their ability to work on Montgomery's behalf. Montgomery I , 2020 WL 6799140, at *2. On November 12, 2020, Montgomery filed suit in this Court, Dkt. 1, and that same day moved for a temporary restraining order and preliminary injunction delaying her execution date until she had a meaningful "opportunity to participate in a clemency process with the assistance of counsel," Dkt. 2 at 1.
The Court set an expedited schedule for briefing and oral argument and issued a decision on November 19, 2020, granting Montgomery's motion in part and denying it in part. Montgomery I , 2020 WL 6799140 at * 1. The Court concluded that 18 U.S.C. § 3599 "creates an entitlement to the continuity of representation by qualified counsel through post-conviction review" including clemency proceedings, id. at *7 ; that Harwell and Henry—who were both quite sick—were "unable meaningfully to assist in the preparation of Plaintiff's clemency petition," id. ; that Montgomery's other counsel lacked the experience or knowledge of her case to "fill the shoes of Harwell and Henry" in the few days remaining to research and to prepare a petition, id. at *9 ; and that, without a postponement of her execution date, Montgomery would be denied access to the critical "fail safe" in the criminal justice system of a meaningful opportunity to apply for clemency, id. at *7 (quoting Harbison v. Bell , 556 U.S. 180, 192, 129 S.Ct. 1481, 173 L.Ed.2d 347 (2009) ).
With respect to the relief sought, Montgomery asked that the Court enjoin Defendants—including the Pardon Attorney—"from taking adverse action relating to her request for reprieve until they provide a clemency process that comports with [due process and] ... 18 U.S.C. § 3599" and preclude Defendants "from carrying out her scheduled execution until she has had access to and an opportunity to participate in a clemency process with the assistance of counsel that comports with fundamental fairness." Dkt. 2 at 1. The Court declined to issue an order relating to the conduct of the reprieve and pardon process "in light of the constitutional commitment of that authority to the President." Montgomery I , 2020 WL 6799140 at *10. Instead, the Court concluded that it was "sufficient ... to stay Plaintiff's execution—briefly—to permit Harwell and Henry to recover from their illness and to have a short time to finish their work in supplementing Plaintiff's placeholder petition for a reprieve or commutation of sentence." Id. The Court, accordingly, "grant[ed] in part and ... den[ied] in part Plaintiff's motion for a preliminary injunction and temporary restraining order" and entered "an order briefly staying Plaintiff's execution date to permit Harwell and Henry to finalize her clemency petition but [declined to] enjoin any government official, including the President, from taking ‘adverse action on her request for reprieve and commutation.’ " Id. at *11 ; see also Dkt. 20 at 1. The Court further ordered Harwell and Henry to finalize Montgomery's "clemency petition as promptly as possible in light of their illness" and, if necessary, to enlist the assistance of other counsel. Dkt. 20 at 1–2.
On November 23, the Director reset Montgomery's execution for January 12, 2021. Dkt. 21. The following day, Defendants moved to clarify that the Court's order had not relieved Montgomery's remaining § 3599 counsel (Lisa Nouri) or the Office of the Federal Public Defender for the Middle District of Tennessee (Harwell and Henry's office) of their obligations to continue representing Montgomery in her clemency proceedings. Dkt. 22 at 1. Defen...
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