Sepulvado Stay Application and Appendix

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App. No. ___

--------------------

In The

Supreme Court of the United States

--------------------

Christopher Sepulvado,

Petitioner,

v.

Bobby Jindal et al.,

Respondents.

--------------------

APPLICATION FOR STAY OF EXECUTION PENDING

DISPOSITION OF PETITION FOR A WRIT OF CERTIORARI

--------------------


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ii

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................................... ivI. INTRODUCTION .................................................................................................. 1II. BACKGROUND ..................................................................................................... 3

A. The National Drug Shortage And Its Effect On Execution Protocols. ........ 3B. Louisianas Continued Administration Of Executions................................. 5C. Louisianas Refusal To Disclose Its Execution Protocol ............................... 7D. Summary Of The Proceedings Below............................................................ 8E. Subsequent Events Establishing That The State Will Have To Revise Its

Protocol ......................................................................................................... 12III. REASONS FOR GRANTING THE STAY .......................................................... 17IV. PETITIONERS MOTION FOR A STAY OF EXECUTION WAS TIMELY ..... 23

V. THIS COURT HAS NEVER CONFRONTED THE QUESTIONPRESENTED IN THE PROCEDURAL POSTURE OF THIS CASE ............... 27

VI. CONCLUSION..................................................................................................... 32APPENDIX .................................................................................................................. 1a

Appendix A, Lundbeck Pentobarbital Distribution Program Press Release .... 1a

Appendix B, Lundbeck Pentobarbital Divestment Press Release ..................... 4a

Appendix C, First Request for Public Records ................................................... 7a

Appendix D, Response to First Request for Public Records ............................ 11a

Appendix E, Second Request for Public Records .............................................. 15a

Appendix F, Response to Second Request for Public Records ......................... 22a

Appendix G, Request for Administrative Remedies ......................................... 29a

Appendix H, Response to Request for Administrative Remedies .................... 32a


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Appendix I, Nembutal Inventory ...................................................................... 34a

Appendix J, January 16, 2014 E-mail from Carlos Finalet, III, General

Counsel, Louisiana Board of Pharmacy............................................................ 36a

Appendix K, January 16, 2014 E-mail from Jeffrey K. Cody, Counsel forLouisiana............................................................................................................ 38a

Appendix L, January 21, 2014 Letter from Gary Clements, Counsel for

Petitioner ........................................................................................................... 40a

Appendix M, January 22, 2014 E-mail from James L. Hilburn, Counsel for

Louisiana............................................................................................................ 43a

Appendix N, January 24, 2014 Letter from James L. Hilburn, Counsel for

Louisiana............................................................................................................ 45a

Appendix O, Supplemental Responses to Plaintiffs First Set of

Interrogatories to Defendants ........................................................................... 47a

Appendix P, Affidavit of Larry D. Sasich, PharmD, MPH, FASHP ................ 57a


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iv

TABLE OF AUTHORITIES

CasesAke v. Oklahoma,

470 U.S. 68 (1985) .................................................................................................... 19Arthur v. Thomas,

No. 2:11-CV-0438-MEF, 2013 WL 5434694 (M.D. Ala. Sept. 30, 2013) ................... 5

Baze v. Rees,

553 U.S. 35 (2008) ............................................................................................ passim

Beardslee v. Woodford,

395 F.3d 1064 (9th Cir. 2005) .................................................................................. 23

Beaty v. Brewer,

131 S. Ct. 2929 (2011) .............................................................................................. 29

Beaty v. Brewer,649 F.3d 1071 (9th Cir. 2011), cert. denied, 131 S. Ct. 2929 .................................. 29

Beaty v. Brewer,

791 F. Supp. 2d 678 (D. Ariz. 2011), affd, 649 F.3d 1071 (9th Cir.), cert.

denied, 131 S. Ct. 2929 ............................................................................................ 29

Brewer v. Landrigan,

131 S. Ct. 445 (2010) .......................................................................................... 27, 28

Code v. Cain,

No. 138,860 (1st J.D.C. Mar. 23, 2011), writ denied, No. 09-0113 (La. Oct. 8,

2010); 46 So. 3d 1258. .............................................................................................. 22

Cooey v. Taft,430 F. Supp. 2d 702 (S.D. Ohio 2006) ..................................................................... 21

Ford v. Wainright,

477 U.S. 399 (1986) .................................................................................................. 18

Gomez v. U.S. Dist. Court for the N. Dist. of Cal.,

503 U.S. 653 (1992) .................................................................................................. 23

Gomez v. U.S. Dist. Court for the N. Dist. of Cal.,

966 F.2d 460 (9th Cir. 1992) .................................................................................... 21

Graves v. Barnes,

405 U.S. 1201 (1972) ................................................................................................ 17Gregg v. Georgia,

428 U.S. 153 (1976) .................................................................................................. 18

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) .................................................................................................. 11


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Hobbs v. Jones,

412 S.W.3d 844 (Ark. 2012) ....................................................................................... 5

Holtzman v. Schlesinger,

414 U.S. 1304 (1973) ................................................................................................ 17

In re Holladay,

331 F.3d 1169 (11th Cir. 2003) ................................................................................ 21

In re Ohio Execution Protocol Litig.,

840 F. Supp. 2d 1044 (S.D. Ohio 2012), motion to vacate stay denied,671

F.3d 601 (6th Cir.), motion to vacate stay denied sub nom. Turner v. Epps,

132 S. Ct. 1306 ......................................................................................................... 22

In re Roche,

448 U.S. 1312 (1980) ................................................................................................ 17

Jones v. Bock,

549 U.S. 199 (2007) .................................................................................................. 24

Jones v. Hobbs,No. 5:10CV00065JLH, 2010 WL 1417976 (E.D. Ark. Apr. 5, 2010), affdsub

nom.,Williams v. Hobbs, 658 F.3d 842 (8th Cir. 2011) .......................................... 31

Landrigan v. Brewer,

625 F.3d 1132 (9th Cir. 2010), vacated, 131 S. Ct. 445 .................................... 21, 27

Landrigan v. Brewer,

No. CV-10-2246-PHX-ROS, 2010 WL 4269559 (D. Ariz. Oct. 25, 2010), affd,

625 F.3d 1144 (9th Cir.), vacated, 131 S. Ct. 445 ............................................. 22, 27

Mathews v. Eldridge,

424 U.S. 319 (1976) .................................................................................................. 19

Nelson v. Campbell,

541 U.S. 637 (2004) ............................................................................................ 10, 20

Oken v. Sizer,

321 F. Supp. 2d 658 (D. Md. 2004), stay vacated, 524 U.S. 916. ...................... 19, 30

Reid v. Covert,

354 U.S. 1 (1957) ...................................................................................................... 20

Rostker v. Goldberg,

448 U.S. 1306 (1980) ................................................................................................ 17

Sims v. Dept of Corr. & Rehab.,

157 Cal. Rptr. 3d 409 (Cal. Ct. App. 2013) ................................................................ 5

Sizer v. Oken,

542 U.S. 916 (2004) ............................................................................................ 29, 30

State v. Sepulvado,

No. 13-0098 (La. Jan. 23, 2013); 105 So.3d 59 .................................................... 8, 26


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vi

University of Texas v. Camenisch,

451 U.S. 390 (1981) .................................................................................................. 11

Wainwright v. Booker,

473 U.S. 935 (1985) .................................................................................................. 20

Whitaker v. Livingston,

732 F.3d 465 (5th Cir. 2013), cert. deniedsub nom.,Yowell v. Livingston, 134

S. Ct. 417 (2013) ................................................................................................. 28, 29

Wilkinson v. Dotson,

544 U.S. 74 (2005) .................................................................................................... 24

Williams v. Hobbs,

133 S. Ct. 97 (2012) .................................................................................................. 31

Williams v. Hobbs,

658 F.3d 842 (8th Cir. 2011) .................................................................................... 32

Woodson v. North Carolina,

428 U.S. 280 (1976) .................................................................................................. 20

Yowell v. Livingston,

134 S. Ct. 417 (2013) .......................................................................................... 28, 29

Statutes21 U.S.C. 841 ............................................................................................................. 14

42 U.S.C. 1983 ................................................................................................... passim

42 U.S.C. 1997 ........................................................................................................... 24

La. Rev. Stat. Ann. 37:1285 (2007)........................................................................... 14

Regulations21 C.F.R. 1306.04 ...................................................................................................... 14

La. Admin. Code tit. 46, 1817 (2012)........................................................................ 13

La. Admin. Code tit. 46, 2309 (2012)........................................................................ 15

La. Admin. Code tit. 46, 2501 (2012)........................................................................ 13

La. Admin. Code tit. 46, 2535 (2012)........................................................................ 15


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Other AuthoritiesAnticipatory Motion to Lift Stay,Landrigan v. Trujillo,

131 S. Ct. 445 (No. 10-A416) .................................................................................... 27

Commission Implementing Regulation 1352/2011,

2011 O.J. (L 338) 31 ................................................................................................... 4

Compounding and the FDA: Questions and Answers,

U.S. Food & Drug Admin.,

http://www.fda.gov/Drugs/GuidanceComplianceRegulatoryInformation/Phar

macyCompounding/ucm339764.htm#approved ...................................................... 15

Deborah W. Denno,Lethal Injection Chaos Post-Baze,

102 Geo. L.J. (forthcoming 2014) ........................................................................... 3, 4

Emergency Application to Chief Justice to Vacate Stay of Execution,

Sizer v. Oken, 542 U.S. 916 (2004) (No. 03-A1023) ................................................. 30

FDA Approved Drug Products,U.S. Food & Drug Admin.,

http://www.accessdata.fda.gov/scripts/cder/drugsatfda/index.cfm ......................... 12

Manny Fernandez,Executions Stall as States Seek Different Drugs,

N.Y. Times, Nov. 8, 2013, at A1 ................................................................................ 4

First Amended and Supplemental Reconventional Demand for Declaratory

Judgment,

Code v. Dept. of Pub. Safety and Corr., No. C585410 (19th J.D.C. Jan. 22,

2010) ........................................................................................................................... 6

Frequently Asked Questions, Nembutal,

http://www.nembutal.net/faqs.php ...................................................................... 4, 13

Judgment, Code v. Dept. of Pub. Safety and Corr.,No. C585410 (19th J.D.C. Mar. 10, 2011) ................................................................. 6

La. State Penitentiary,Louisiana Execution Protocol(2013) .............................. 15, 16

Motion to Compel,Hoffman v. Cain,

No. 12-796-JJB-SCR (M.D. La. Oct. 21, 2013) ........................................................ 10

Notice of Disclosure,Schad v. Brewer,

No. 13-02001-ROS (D. Ariz. Oct. 5, 2013) ................................................................. 5

Number of Executions by State and Region Since 1976,

Death Penalty Info. Center, http://www.deathpenaltyinfo.org/number-

executions-state-and-region-1976 .............................................................................. 5

Opinion on Preliminary Injunction, Whitaker v. Livingston,

No. H-13-2901 (S.D. Tex. Oct. 5, 2013) ................................................................... 29

Order,Baze v. Thompson,

No. 06-CI-574 (Franklin Cir. Ct. Dec. 5, 2013) ......................................................... 5


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viii

Order,Hill v. Owens,

No. 2013-CV-233771 (Ga. Sup. Ct. July 18, 2013), appeal docketed, No.

S14A0092 (Ga.) ................................................................................................... 21, 22

Order,State v. Irick,

No. M1987-00131-SC-DPE-DD (Tenn. Dec. 11, 2013) .............................................. 5

Petition for a Writ of Certiorari, Yowell v. Livingston,

134 S. Ct. 417 (2013) (No. 13-6809) ......................................................................... 28

Plaintiff Christopher Sepulvados Second Set of Requests for Production,

Hoffman v. Jindal, No. 3:12-cv-00796 (M.D. La. Jan. 7, 2014) .............................. 26

Press Release, Hospira, Hospira Statement Regarding Pentothal (Sodium

Thiopental) Market Exit (Jan. 21, 2011) ................................................................... 4

Respondents Brief in Opposition to Petition for Writ of Certiorari and

Application for Stay of Execution,

Yowell v. Livingston, 134 S. Ct. 417 (2013) (No. 13-6809)...................................... 28

Ruling on Motion for Protective Order,Hoffman v. Cain,No. 12-796-JJB-SCR (M.D. La. June 4, 2013) .......................................................... 9

Josh Sanburn, Ohios Lethal-Injection Experiment,

Time (Jan. 17, 2014),http://nation.time.com/2014/01/15/ohios-lethal-

injection-experiment .................................................................................................. 4

Supplemental Response to Motion to Vacate Stay,Brewer v. Landrigan,

131 S. Ct. 445 (No. 10-A416) .................................................................................... 27

Transcript, Code v. Dept. of Pub. Safety and Corr.,

No. C585410 (1st J.D.C. Feb. 22, 2011)..................................................................... 7


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1

To the Honorable Justice Antonin Scalia, as Circuit Justice for the United

States Court of Appeals for the Fifth Circuit:

Petitioner Christopher Sepulvado (petitioner) respectfully requests a stay of

his execution, presently scheduled for February 5, 2014, pending this Courts

disposition of his petition for a writ of certiorari, filed on January 27, 2014. In the

alternative, petitioner requests that the Court issue an order directing that the

execution not be conducted in a manner that materially deviates from the execution

protocol previously disclosed to petitioner.

I. INTRODUCTIONThe Fifth Circuit held that petitioner has no due process right to know the

states protocol for executing him. Louisiana has separately produced a protocol in

June 2013 (the 2013 Protocol), but the state has already violated it. There is

moreover compelling evidence that the state will abandon its protocol altogether

because pentobarbital the sole drug specified is unavailable for use in

executions. Petitioner has asked the state to notify him of any changes it makes to

the protocol prior to his execution, but the state has not agreed to do so. To the

contrary and remarkably the state has gone back on its representation that it

would provide discovery regarding the nature and origin of the drugs that will be

used in the execution, stating that it is not required to provide that information to

petitioner until the day after he is executed.


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This Courts four-part standard for granting a stay of execution is satisfied in

this case. First, there is a reasonable probability that four Justices will vote to

grant certiorari. As explained in petitioners parallel Petition for a Writ of

Certiorari, the Question Presented whether and to what extent the Due Process

Clause of the Fourteenth Amendment entitles a condemned inmate to timely notice

of the method by which he will be executed is a frequently arising legal question

that is the subject of significant disagreement among federal judges. Second, there

is a fair prospect that this Court will reverse the decision below. The Fifth Circuits

resolution of that question is irreconcilable with this Courts precedents. Due

process protects a condemned inmates interest in a humane death and affords him

the concomitant right to obtain the protocol by which he will be executed so that a

federal court may determine whether the execution will comport with the Eighth

Amendment. Without this protection, a state could make a last-minute decision to

use constitutionally unacceptable drugs, Baze v. Rees, 553 U.S. 35, 53 (2008)

(plurality opinion), that subject the inmate to excruciating pain in violation of the

Eighth Amendment. Third, petitioner will suffer irreparable harm if this stay

request is denied. And finally, the countervailing government interests are

minimal: the state does not have any legitimate interest in preventing courts from

reviewing the constitutionality of its execution protocol.


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II. BACKGROUNDPetitioner is a condemned inmate, whose execution has been set for February

5, 2014. He was convicted of first-degree murder and sentenced to death in

Louisiana in 1993, and his conviction and sentence became final in 1996. Petitioner

timely sought information about the protocol that the state would use to execute

him. After the state repeatedly refused to disclose the protocol, including the drugs

it plans to use, petitioner joined this 1983 action alleging that the states

recalcitrance violates his due process rights. The district court agreed and granted

him a stay of execution, but the court of appeals reversed.

A. The National Drug Shortage And Its Effect On ExecutionProtocols

While every state that imposes the death penalty does so by lethal injection,

the landscape of lethal-injection protocols nationwide has changed dramatically

since this Court decidedBaze v. Rees, 553 U.S. 35 (2008). At the time ofBaze, every

death-penalty state used a protocol that called for lethal injection by a combination

of three drugs, including sodium thiopental. See Deborah W. Denno, Lethal

Injection Chaos Post-Baze, 102 Geo. L.J. (forthcoming 2014) (manuscript at 12),

available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2328407. In

January 2011, Hospira Inc., the sole U.S. manufacturer of sodium thiopental,


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ceased manufacturing the drug entirely.1 As a result, at least seventeen states

switched to pentobarbital by 2013, either as part of a three-drug cocktail or as a

single dose. Id. at 31. In January 2011, Lundbeck, Inc., the only domestic

manufacturer of pentobarbital, adopted a policy prohibiting its distributors from

selling the drug to departments of corrections for use in executions. Stay App. 2a.

The last supplies of FDA-approved pentobarbital in possession of state departments

of correction therefore expired by the end of 2013. See Frequently Asked Questions,

Nembutal, http://www.nembutal.net/faqs.php (last visited Jan. 21, 2014) (listing

pentobarbitals shelf life at twenty-four months).

Given these drug shortages, states have repeatedly revised their execution

protocols often without substantial medical supervision, and without determining

whether any new drugs will be effective and humane. Manny Fernandez,

Executions Stall as States Seek Different Drugs, N.Y. Times, Nov. 8, 2013, at A1;

Josh Sanburn, Ohios Lethal-Injection Experiment, Time (Jan. 17, 2014),

http://nation.time.com/2014/01/15/ohios-lethal-injection-experiment. Many states

1 Press Release, Hospira, Hospira Statement Regarding Pentothal (Sodium Thiopental)

Market Exit (Jan. 21, 2011), available at http://phx.corporate-ir.net/phoenix.zhtml?c=175550&p=irol-newsArticle&ID=1518610&highlight; see Denno, supra, at 29. The United Kingdom and the

European Union likewise enacted export restrictions to prevent the shipment of sodium thiopental to

the United States. See Commission Implementing Regulation 1352/2011, 2011 O.J. (L 338) 31,

available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:338:0031:0034:EN

:PDF.


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facing this conundrum have suspended executions in the interim,2 while other

states are attempting to proceed with executions by using new drug protocols.

B. Louisianas Continued Administration of ExecutionsLouisiana resolved to proceed with executions, despite the national drug

shortages. Through 2010, the states execution protocol provided for the traditional

three-drug cocktail: sodium thiopental (a sedative), pancuronium bromide (a

paralytic), and potassium chloride (which causes cardiac arrest). SeePet. App. 38a.3

This Court held in Baze that sodium thiopental eliminates unnecessary pain and

thus renders the three-drug cocktail constitutional, but that, failing a proper dose

of sodium thiopental that would render the prisoner unconscious, there is a

substantial, constitutionally unacceptable risk of suffocation from the

administration of pancuronium bromide and pain from the injection of potassium

chloride. 553 U.S. at 53 (plurality opinion).

2 These states include Alabama, seeArthur v. Thomas, No. 2:11-CV-0438-MEF, 2013 WL

5434694 (M.D. Ala. Sept. 30, 2013) (allowing Eighth Amendment claims against execution protocol

to proceed); Arizona, seeNotice of Disclosure, Schad v. Brewer, No. 13-02001-ROS (D. Ariz. Oct. 5,

2013) (disclosing that state supply of pentobarbital expired in November 2013); Arkansas, Hobbs v.

Jones, 412 S.W.3d 844 (Ark. 2012) (finding execution protocol in violation of state constitution);

California, Sims v. Dept of Corr. & Rehab., 157 Cal. Rptr. 3d 409 (Cal. Ct. App. 2013) (finding

execution protocol in violation of state law); Kentucky, Order, Baze v. Thompson, No. 06-CI-574

(Franklin Cir. Ct. Dec. 5, 2013) (denying states motion to lift injunction against executions);

Tennessee, Order, State v. Irick, No. M1987-00131-SC-DPE-DD (Tenn. Dec. 11, 2013) (staying

execution so constitutionality of new execution protocol could be evaluated). These states have notexecuted anyone since. See Number of Executions by State and Region Since 1976,Death Penalty

Info. Center, http://www.deathpenaltyinfo.org/number-executions-state-and-region-1976 (last

updated Jan. 16, 2014).

3 Citations to Pet. App. refer to the appendix to the accompanying petition for a writ of

certiorari; citations to Pet. refer to the petition itself.


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On January 22, 2010, in a lawsuit brought by another inmate, the Louisiana

Department of Public Safety and Corrections (Department) named petitioner as a

defendant in a reconventional demand (a state procedure equivalent to a

declaratory judgment action), seeking a ruling that all of its rules, regulations,

protocols, policies, and directives in support of lethal injection executions are valid

and enforceable and fully comply with all constitutional, statutory, and

administrative procedures. First Amended and Supplemental Reconventional

Demand for Declaratory Judgment, Code v. Dept. of Pub. Safety and Corr., No.

C585410 (19th J.D.C. Jan. 22, 2010). Attached to the demand was a copy of the

Departments then-current lethal-injection protocol, which specified that all

executions would use sodium thiopental, pancuronium bromide, and potassium

chloride. Id. at Ex. 2.

On October 28, 2010, the Department acknowledged that it had no sodium

thiopental in stock, Court of Appeals Record (C.A. R.) 107, making it impossible to

carry out the states then-current execution protocol, given that Hospira had

announced that it would no longer produce the drug, id.at 210. Therefore, the state

district court dismissed the Departments reconventional-demand suit insofar as it

sought a judgment evaluating the execution protocol. Judgment, Code, No.

C585410 (19th J.D.C. Mar. 10, 2011). The court found that any ruling on the merits

would be premature, as the protocol would need to be changed due to the

unavailability of sodium thiopental. See id.; Transcript at 9, Code, No. C585410


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(1st J.D.C. Feb. 22, 2011) (There may very well have been a change in

circumstances now that make [the question] premature. . . . The protocol does

mention three drugs[,] only one is identified by name[,] and thats the one that I

think this court can take judicial notice of the fact that nobody in the United States

is manufacturing anymore.). The Department appealed to the Louisiana First

Circuit Court of Appeals on other grounds, and the state refused during oral

argument on April 25, 2012, to confirm whether it had changed its execution

protocol or to disclose any changes that had occurred. SeeC.A. R. 2021.

C. Louisianas Refusal To Disclose Its Execution ProtocolThough Louisiana had no sodium thiopental, it steadfastly refused to disclose

a new execution protocol. The states obstinacy prompted petitioner and other

condemned inmates in the state to seek disclosure of the protocol using the

remedies available to them. This dispute involving petitioner and other

condemned inmates has been ongoing for years, but has produced little in the way

of transparency.

On April 16, 2012, counsel for petitioner filed a request for the protocol under

the Louisiana Public Records Act. See Stay App. 8a10a. The Department refused

this request, citing security concerns and repeatedly stating that DOC has no

public records responsive to this request. Id.12a; see also id.12a14a.

On December 12, 2012, the state district court issued a death warrant for

petitioner to be executed on February 13, 2013, over petitioners objections that he


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had not yet been provided with the execution protocol. See C.A. R. at 289. On

January 11, 2013, petitioner sought a writ in the Louisiana Supreme Court on the

issue of whether he could be executed without notice and a hearing as to the

execution protocol. Id. at 249. This writ was denied on January 23, 2013. State v.

Sepulvado, No. 13-0098 (La. Jan. 23, 2013); 105 So. 3d 59.

On December 18, 2012, counsel for petitioner filed a second request under the

Louisiana Public Records Act,again asking the Department to disclose its execution

protocol. Stay App. 16a. The Department refused this request on January 7, 2013.

Id.23a.

Petitioner simultaneously filed a request seeking disclosure of the protocol

pursuant to Louisianas Administrative Remedy Procedure (ARP). Id. 30a31a.

Almost a month later, on January 14, 2013, the Department rejected the ARP

request, explaining to petitioner that as of this date nothing has personally

happened to you. Id.33a.

D.Summary Of The Proceedings BelowHaving exhausted his state remedies, on January 23, 2013, petitioner

promptly moved to intervene in a 1983 lawsuit filed by inmate Jessie Hoffman in

the United States District Court for the Middle District of Louisiana. C.A. R. at 67

70. Petitioner alleged, inter alia, that Louisianas refusal to provide him with its

execution protocol violates the Due Process Clause of the Fourteenth Amendment.

Id.at 68.


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Petitioner moved for a preliminary injunction requiring the state to disclose

its lethal-injection protocol. Id. at 11237. After a hearing, the district court

granted the preliminary injunction and stayed petitioners execution. Pet. App. 16a.

The court recognized that [t]here is no question that [petitioner] has a right to

raise [the Eighth Amendment claim] that the method of execution does inflict cruel

and unusual pain. Id.17a. The court reasoned that [i]t is axiomatic that . . . an

inmate who is to be executed cannot challenge a protocol as violative of the 8th

Amendment until he knows what that protocol contains. Id.

The court also rejected the states argument that petitioners motion for a

stay of execution is an 11th hour appeal. Id.18a. The court found it obvious that

there was a satisfactory explanation for the delay because Sepulvado has been

trying to determine what the protocol is for years and the state will not provide this

information. Id. See also id.20a (The intransigence of the State Defendants in

failing to produce the protocol requires the Court to issue this order.).

The state appealed. While the appeal was pending before the Fifth Circuit, a

magistrate judge adjudicating the due process claim ordered Louisiana to disclose

its then-current lethal-injection protocol in discovery. Ruling on Motion for

Protective Order, Hoffman v. Cain, No. 12-796-JJB-SCR (M.D. La. June 4, 2013).

The state complied on June 17, 2013. The disclosed protocol, dated January 10,

2013, calls for the use of a single drug: pentobarbital. Pet. App. 24a. The state

made no representation that it would definitely use that protocol in petitioners


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execution, however. Indeed, in further discovery responses, the state objected to

disclosing information about its execution protocol on the ground that there were no

currently scheduled executions. See Motion to Compel, Hoffman v. Cain, No. 12-

796-JJB-SCR (M.D. La. Oct. 21, 2013). The state moreover continued to insist in

the Fifth Circuit that petitioner had no due process right to the protocol.

A panel of the Fifth Circuit reversed the district courts grant of the

preliminary injunction. The panel reasoned that petitioner had failed to identify a

cognizable liberty interest for purposes of the Due Process Clause. Pet. App. 10a.

Perhaps the states secrecy masks a substantial risk of serious harm, but it does

not create one. Id.11a12a (quoting Baze, 553 U.S at 52 (plurality opinion)). In

the panels view, [a]dopting the district courts reasoning would frustrate the

States significant interest in enforcing its criminal judgments. Id. 10a (quoting

Nelson v. Campbell, 541 U.S. 637, 650 (2004)). The panel also discounted the

importance of petitioners asserted due process right because, [d]espite Louisianas

concealment of its protocol, Sepulvado has managed to assert a litany of specific

cruel-and-unusual-punishment claims. Id.11a.

The panel also reversed the stay of execution. Id.15a. In addition to finding

that there was no basis for a stay because petitioner had no cognizable liberty

interest, id.10a, the panel concluded that his motion was untimely because he has

not explained his failure to bring a claim until two years after Louisianas repeal

of its lethal-injection protocol in December 2010, id. 14a. The panel deemed it


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irrelevant that during that period petitioner had pursued his state law remedies,

and it did not explain how he could have asserted a due process right to the protocol

until the state finally refused to provide it to him.

Petitioners request for rehearing en banc was denied over the dissent of four

judges, three of whom authored a separate opinion. In describing the facts of the

case, the dissenters observed that [t]he State repeatedly refused to furnish

Sepulvado with . . . notice and adamantly insisted before the district court that it is

under no obligation to officially release the details of the execution protocol. Id.

23a. But, citing this Courts opinion in University of Texas v. Camenisch, 451 U.S.

390 (1981), the dissenters argued that the panel decision was moot because the

State complied fully with the terms of the preliminary injunction by turning over

its revised lethal-injection protocol to Sepulvado before the panel of this Court

issued its decision. Pet. App. 27a. The dissenters also argued that the panel erred

on the merits:

If a State does not officially release the details of its execution protocol, a

court would have no way of verifying whether the State planned to use

pentobarbital or another substance, such as expired or contaminated sodium

thiopental, or an entirely different chemical whose properties could very well

cause an unconstitutional degree of pain and suffering. If Sepulvado were

not given such notice before his execution takes place, there is absolutely no

possibility of a post-deprivation hearing or any opportunity to be heard at a

meaningful time and in a meaningful manner.

Id. 31a (quotingHamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)).

After the case was remanded, on January 10, 2014, the district court

dismissed petitioners due process claim, finding that the Fifth Circuits panel


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decision mandated that result. Id.43a44a. The court denied the states motion to

dismiss petitioners Eighth Amendment challenges to the disclosed execution

protocol. Id.44a46a. Those claims remain pending.

Petitioner filed a timely petition for a writ of certiorari seeking review of the

Fifth Circuits judgment on January 27, 2014.

E. Subsequent Events Establishing That The State Will Have ToRevise Its Protocol

While petitioners execution remains scheduled for February 5, 2014,

ostensibly to be conducted using pentobarbital, it is highly unlikely that Louisiana

will be able to implement the 2013 Protocol. Like sodium thiopental, manufactured

pentobarbital is unavailable for executions in the United States because the only

manufacturer blocks its sale or transfer for that purpose. Nembutal is currently the

only commercially available pentobarbital in the United States. SeeFDA Approved

Drug Products, U.S. Food & Drug Admin., http://www.accessdata.fda.gov/scripts

/cder/drugsatfda/index.cfm (last visited Jan. 21, 2014). On January 7, 2011,

Lundbeck the then-producer of Nembutal announced a restricted distribution

program designed to deny distribution of pentobarbital to prisons in U.S. states

currently carrying out the death penalty by lethal injection. Stay App. 2a. On

December 22, 2011, Akorn Inc. acquired the patent for Nembutal and agreed to

continue with Lundbecks restricted distribution programme for Nembutal. Id.

5a.


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Although the state did have pentobarbital during 2013, and affirmed by

affidavit that this pentobarbital was purchased from Lundbeck, C.A. R. 38687,

those supplies have expired, Stay App. 35a. The prison pharmacy, in compliance

with state pharmacy regulations, discarded them as verified by the state Board of

Pharmacy on December 19, 2013. Id. Indeed, the entire supply of Nembutal

potentially available for use in executions (namely, the supply that was distributed

before the restricted distribution program) has expired, see Frequently Asked

Questions, supra, so the prison pharmacy is prohibited from dispensing or storing it,

see La. Admin. Code tit. 46, 2501(D) (2012) (Expired drugs shall not be dispensed

and shall be removed from the pharmacy drug inventory.); see also id. 1817(A)(3)

(In the event expired drugs are received by a penal pharmacy, the pharmacist-in-

charge shall destroy them as required by law.).

The Louisiana State Penitentiary (LSP) Pharmacy has acknowledged that, as

of January 16, 2014, it did not have the drug in stock. Stay App. 37a. On that day,

the General Counsel of the Louisiana Board of Pharmacy stated that one of the

Boards compliance officers visited the LSP Pharmacy and confirmed that the

pharmacy does not have any pentobarbital in stock nor has the pharmacy obtained

any pentobarbital from any compounding pharmacy. Id. The Pharmacist-in-

Charge informed the officer that she has not been directed by anyone with the

Department of Public Safety and Corrections to obtain any pentobarbital. Id.


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That same day, and again on January 24, 2014, counsel for respondents in

this case informed petitioner that the Department is in the process of procuring

pentobarbital, thereby acknowledging that it does not yet have the drug. Id.39a;

see also id. 49a. And despite the states assertion that it is procuring the

pentobarbital, it has never explained from where it plans to obtain the drug, and in

fact there is no lawful mechanism by which the state could do so.

Louisiana has informed petitioner that Jonathan A. Roundtree, M.D., will

write the prescription ordering the drug. Id.51a. However, a doctor is prohibited

from prescribing pentobarbital to petitioner to cause his death, because [a]

prescription for a controlled substance to be effective must be issued for a legitimate

medical purpose by an individual practitioner acting in the usual course of his

professional practice. 21 C.F.R. 1306.04; see also 21 U.S.C. 841(a)(1)

(criminalizing the dispensing of a controlled substance without a legitimate medical

purpose); La. Rev. Stat. Ann. 37:1285(A)(6) (2007) (The board may refuse to issue,

or may suspend or revoke any license or permit, or impose probationary or other

restrictions on any license or permit issued under this Part for . . . [p]rescribing,

dispensing, or administering legally controlled substances . . . without legitimate

medical justification therefor . . . .).

Additionally, because there are no commercially available, unexpired

supplies from the manufacturer, the only possible way for the state to acquire the


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pentobarbital is from a compounding pharmacy.4 However, under La. Admin. Code

tit. 46, 2535, compounded drugs may be dispensed only if there is a patient

specific prescription, id. 2535 (cmt.), or if the drug is administered by the

prescriber and not dispensed to the patient, id. 2535(D)(2).5 As discussed above,

it would be illegal for Dr. Roundtree to write petitioner a prescription for

pentobarbital. And compounded pentobarbital cannot be administered by the

prescriber, who must be a doctor, pursuant to Louisianas execution protocol, which

calls for the I.V. Team to be composed of phlebotomists, emergency medical

technicians, paramedics, or Military Corpsmen with training in phlebotomy, not

doctors. La. State Penitentiary,Louisiana Execution Protocol26 (2013) [hereinafter

Louisiana Execution Protocol]. Louisiana has disclosed the members of its I.V.

team, none of whom have medical licenses. Stay App. 51a52a.

If Louisiana were to illegally use compounded pentobarbital, the execution

would carry a substantial risk of serious harm to petitioner. Baze, 553 U.S at 52

(plurality opinion). Essential chemical properties of compounded pentobarbital

4 A compounding pharmacy mixes drugs in small batches under custom orders. Unlike

manufacturers, compounding pharmacies generally are not subject to the drug approval process and

rigorous checks and regulatory procedures required under federal law. SeeCompounding and the

FDA: Questions and Answers, U.S. Food & Drug Admin., http://www.fda.gov/Drugs

/GuidanceComplianceRegulatoryInformation/PharmacyCompounding/ucm339764.htm#approved (last updated Dec. 2, 2013).

5Louisianas pharmacy regulations apply regardless of whether the compounding pharmacy is

located within the state. SeeLa. Admin. Code tit. 46, 2309 (Louisiana pharmacy laws and

regulations shall be applicable to regulate the practice of pharmacy for that portion of the out-of-

state pharmacys Louisiana pharmacy practice or operation.).


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such as pH, osmolarity, or concentration may be sufficiently different from those

of manufactured pentobarbital that they pose unique risks. See Stay App. 74a, 78a

81a. Such differences may result in a drug that is painful when injected or is

partially or completely ineffective, such that the prisoner will not be killed by the

drug, but will instead be unconscious for an extended period of time while breathing

inadequately, before waking up in a permanently brain-damaged state. See id.81a.

It is therefore substantially likely that the state will substitute an unknown,

different drug or combination of drugs at the last minute, and that petitioner will be

executed using a procedure that he and the courts will never have the

opportunity to subject to constitutional scrutiny.

Indeed, by failing to acquire pentobarbital in a timely fashion, Louisiana has

already violated the 2013 Protocol. The 2013 Protocol requires the prison pharmacy

at all times to [m]aintain the following stock ensuring chemicals have not

exceeded expiration date: 15 grams pentobarbital 50mg/ml solution. Louisiana

Execution Protocol, supra, at 38. 30 days prior to execution, the LSP Pharmacist

is required to [v]erify execution drugs are in stock as above and expiration dates

will not be exceeded prior to execution date. Id. But as of January 24, 2014 a

mere twelve days before the scheduled execution the state did not possess any

pentobarbital. Stay App. 39a, 49a. That confirmed violation of the 2013 Protocol

strongly suggests that the state will modify its procedures and thus impose an

unnecessary and unconstitutional risk of inhumane punishment on petitioner.


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III. REASONS FOR GRANTING THE STAYA stay of execution is appropriate if an applicant makes a four-part showing:

first, that there is a reasonable probability that four Justices of the Court will vote

to issue a writ of certiorari, Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980)

(Brennan, J., opinion in chambers) (quoting Graves v. Barnes, 405 U.S. 1201, 1203

04 (1972) (Powell, J., opinion in chambers)) (internal quotation marks omitted);

second, that there is a fair prospect that a majority of the Court will reverse the

decision below, id.; third, that irreparable harm will likely result if the stay is not

granted, id.; and fourth, that, if it is a close case, the balance [of] the equities

weighs in favor of a stay, based on the relative harms to the applicant and

respondent, as well as the interests of the public, id. (quoting Holtzman v.

Schlesinger, 414 U.S. 1304, 130809 (1973) (Marshall, J., opinion in chambers)).

Where a stay is sought in conjunction with a petition for a writ of certiorari, rather

than on direct appeal, the consideration of prospects for reversal dovetails, to a

greater extent, with the prediction that four Justices will vote to hear the case. In

re Roche, 448 U.S. 1312, 1314 n.1 (1980) (Brennan, J., opinion in chambers).

1. Petitioner meets both the reasonable probability and fair prospect

prongs of the standard. This Court is likely to grant certiorari and reverse the

decision below for two reasons, discussed in detail in petitioners parallel petition

for a writ of certiorari. First, this case presents an ideal vehicle to resolve a legal

question of great national importance. SeePet. Part I. The Question Presented is a


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pure question of law whether a condemned inmate has a due process right to

know the protocol by which he will be executed that is essential for courts ability

to assess whether an execution comports with the Eighth Amendment. This

question arises with great frequency in capital litigation and is the subject of

substantial disagreement among jurists. This Court likely will intervene to resolve

this fully developed disagreement and prevent continuing disruption of execution

proceedings.

Second, the Fifth Circuits holding that the Constitution permits states to

withhold the information necessary for courts to enforce the Eighth Amendment is

irreconcilable with this Courts precedents. See Pet. Part II. The Eighth

Amendments prohibition against cruel and unusual punishments extends to

methods of execution that produce an unnecessary and wanton infliction of pain,

Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion). The condemned

inmates interest in avoiding an inhumane death in turn gives rise to a procedural

due process right to have a court assess whether the states execution protocol

comports with the Eighth Amendment. See, e.g.,Ford v. Wainright, 477 U.S. 399,

410, 41314 (1986) (plurality opinion) (establishing that the Eighth Amendment

prohibits execution of inmates who are insane and concluding that inmates claiming

insanity are entitled to procedural due process). But, of course, judicial review of a

states execution protocol is impossible unless that protocol is timely disclosed. See

Oken v. Sizer, 321 F. Supp. 2d 658, 664 (D. Md. 2004) (Obviously, the fact of court


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review of the protocols presupposes their production.), stay vacated, 524 U.S. 916.

Absent such disclosure, the condemned inmate faces a substantial risk of an unduly

painful execution.

This Court has held that even though lethal injection may be humane, the

Eighth Amendment forbids states from using combinations of drugs that inflict

unnecessary pain and suffering concluding, for example, that without the prior

administration of a sedative, the injection of pancuronium bromide and potassium

chloride would present a substantial, constitutionally unacceptable risk of

suffocation. Baze v. Rees, 553 U.S. 35, 53 (2008) (plurality opinion). However,

under the Fifth Circuits decision, Louisiana may decide at the eleventh hour to use

such constitutionally unacceptable drugs without notifying anyone, and, even

though substantially less painful alternatives may be available, no court would

have the opportunity to review the protocols constitutionality. Weighed against the

inmates almost uniquely compelling interest, Ake v. Oklahoma, 470 U.S. 68, 78

(1985), in avoiding undue suffering during his execution, and the grave risk of

irreversible erroneous deprivation if the execution protocol is not disclosed, the

countervailing governmental interests are minimal. See Mathews v. Eldridge, 424

U.S. 319, 335 (1976). The state simply does not have any substantial interest in

precluding courts from ensuring that its execution protocol comports with the

Eighth Amendment, and the states undisputed interest in enforcing its criminal

judgments is not threatened, since all delay can be avoided by timely disclosure.


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2.With respect to the third prong, petitioner will suffer irreparable harm if

the stay is not granted. [D]eath is a punishment different from all other sanctions

in kind rather than degree. Woodson v. North Carolina, 428 U.S. 280, 30304

(1976) (plurality opinion). As a consequence, the requirement of irreparable harm .

. . if a stay is not granted . . . is necessarily present in capital cases. Wainwright v.

Booker, 473 U.S. 935, 935 n.1 (1985) (Powell, J., concurring). Louisiana has refused

to tell petitioner the protocol by which he will be executed in nine days. Unless this

Court stays his execution, petitioner will forever lose the opportunity to vindicate

his Eighth Amendment right in court and will face a grave risk of enduring

excruciating pain during his execution.

3. With respect to the balance of the equities prong, the harm to the state

that will result from the entry of a stay of execution is slight in comparison with the

irreparable, unconstitutional harm that petitioner would likely suffer if a stay were

denied. In capital cases, the balance of conflicting interests must be weighed most

heavily in favor of the procedural safeguards of the Bill of Rights. Reid v. Covert,

354 U.S. 1, 46 (1957) (Frankfurter, J., concurring in the result); see alsoid.at 45

46. To be sure, the state has a strong interest in the prompt execution of its

judgments. SeeNelson v. Campbell, 541 U.S. 637, 650 (2004). However, petitioners

due process claim itself poses no obstacle to Louisianas enforcement of the

judgment against him. A stay of execution is necessary in this case only because of

the prospect that the state will execute petitioner according to a different protocol


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than the one it has disclosed. Had the state timely disclosed and committed to

using a protocol that is consistent with the Eighth Amendment, petitioners

execution would have proceeded without delay. Cf. Landrigan v. Brewer, 625 F.3d

1132, 1133 (9th Cir. 2010) (Wardlaw and Fletcher, JJ., concurring in the denial of

rehearing en banc), vacated,131 S. Ct. 445.

In any event, the substantial risk that petitioner will be executed in a

manner that violates the Eighth Amendment, without any opportunity to vindicate

his rights in court, far outweighs the harm of a delay in carrying out an execution.

SeeGomez v. U.S. Dist. Court for the N. Dist. of Cal., 966 F.2d 460, 462 (9th Cir.

1992) (Noonan, J., dissenting) (The state will get its man in the end. In contrast, if

persons are put to death in a manner that is determined to be cruel, they suffer

injury that can never be undone, and the Constitution suffers an injury that can

never be repaired.); see alsoIn re Holladay, 331 F.3d 1169, 1177 (11th Cir. 2003)

([W]e perceive no substantial harm that will flow to the State of Alabama or its

citizens from postponing petitioners execution to determine whether that execution

would violate the Eighth Amendment.); Cooey v. Taft, 430 F. Supp. 2d 702, 708

(S.D. Ohio 2006); Order at 3,Hill v. Owens, No. 2013-CV-233771 (Ga. Sup. Ct. July

18, 2013), appeal docketed, No. S14A0092 (Ga.). The balance tips even further in

favor of granting a stay in light of the states own interest in ensuring that its

execution protocol comports with the Eighth Amendment, which is evident from the

fact that Louisiana itself sought a declaratory judgment affirming the lawfulness of


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its former protocol. Code v. Cain, No. 138,860 (1st J.D.C. Mar. 23, 2011), writ

denied, No. 09-0113 (La. Oct. 8, 2010); 46 So. 3d 1258.6

The interest of the public also strongly favors staying petitioners execution.

[T]he public interest is served only by enforcing constitutional rights and by the

prompt and accurate resolution of disputes concerning those constitutional rights.

In re Ohio Execution Protocol Litig., 840 F. Supp. 2d 1044, 1059 (S.D. Ohio 2012),

motion to vacate stay denied,671 F.3d 601 (6th Cir.), motion to vacate stay denied

sub nom. Turner v. Epps, 132 S. Ct. 1306. In particular, the public has a strong

interest in ensuring that the state executes its condemned inmates without

subjecting them to excruciating pain in violation of the Eighth Amendment. See

Order at 4,Hill, No. 2013-CV-233771 ([T]he public has a clear interest in ensuring

that the Constitutions, both Federal and State, are followed by Defendants with

regard to protections afforded individuals against cruel and unusual punishment.);

Landrigan v. Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559, at *11 (D. Ariz.

Oct. 25, 2010), affd,625 F.3d 1144 (9th Cir.), vacated,131 S. Ct. 445. By contrast,

the public interest has never been and could never be served by rushing to

judgment at the expense of a condemned inmates constitutional rights. Ohio

Execution Protocol Litig., 840 F. Supp. 2d at 1059.

6To minimize any delay, if the Court grants certiorari, petitioners counsel is prepared to brief

the case according to the schedule applicable to cases granted on Friday January 17, 2014, so that

the case is available for argument and decision in the Courts October Term 2013.


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IV. PETITIONERS MOTION FOR A STAY OF EXECUTION WAS TIMELYThere is no merit to the Fifth Circuits suggestion that petitioner was

untimely in requesting a stay of execution. See Pet. App. 14a15a. In fact, as the

district court recognized, petitioner has diligently pursued his rights in compliance

with required procedures.

A court may consider the last-minute nature of an application to stay

execution in deciding whether to grant equitable relief. Gomez v. U.S. Dist. Court

for the N. Dist. of Cal., 503 U.S. 653, 654 (1992) (per curiam). However, there is no

general rule that a claim [i]s dilatory if first filed at the time when the possibility

of execution bec[omes] imminent. Beardslee v. Woodford, 395 F.3d 1064, 1070 (9th

Cir. 2005) (per curiam). Instead, the court should conduct[] a fact-specific inquiry

to ascertain whether the claims could have been brought earlier, and whether the

petitioner had good cause for delay. Id.

Petitioners motion for a stay was timely. Indeed, petitioner has been seeking

information about the protocol by which he will be executed for almost two years.

Petitioners counsel, Gary Clements, twice sought to obtain the execution

protocol under the Louisiana Public Records Act, but the state adamantly refused

these requests. Mr. Clements made the first request on April 16, 2012, Stay App.

8a10a, almost eight months beforea judge lifted the stay in petitioners state-court


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case7and signed a death warrant for his execution, seeC.A. R. 28690.8 In its reply,

sent more than three months later, the Department refused to provide the protocol,

citing security concerns and repeatedly stating, DOC has no public records

responsive to this request. Stay App. 12a14a. On December 18, 2012, Mr.

Clements filed a second public records request. Id. 16a19a. The Department

refused this request on January 7, 2013, on similar grounds. Id.23a28a.

The Fifth Circuits suggestion that petitioner disentitled himself to a stay of

execution by initially instituting state rather than federal proceedings is genuinely

inexplicable. Petitioner had no federal constitutional right to information until it

was clear that the state would not provide it. Further, under the Prison Litigation

Reform Act (PLRA), a prisoner cannot bring a 1983 action without first

exhausting his administrative remedies. See42 U.S.C. 1997e(a) )(No action shall

be brought with respect to prison conditions under section 1983 of this title . . . until

such administrative remedies as are available are exhausted.). This Court has

affirmed that the PLRAs exhaustion requirement is mandatory, see Jones v. Bock,

549 U.S. 199, 211 (2007), and that it is a precondition to any 1983 action,

Wilkinson v. Dotson, 544 U.S. 74, 84 (2005) (emphasis added). To comply with this

7

In July 2008, a state district court had stayed all proceedings in petitioners case due toongoing litigation regarding the constitutionality of Louisianas then-current lethal-injection protocol

underBaze. See C.A. R. 289.

8The Fifth Circuit suggested that petitioner did not act before his death warrant was signed in

December 2012, see Pet. App. 14a & n.19, whereas, in fact, petitioners counsel filed the first public

records request in April 2012.


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requirement, petitioner filed a request pursuant to Louisianas ARP on December

18, 2012. Petitioner requested that he be provided with a copy of the current

protocol for his execution. See Stay App. 30a31a. Almost a full month later, on

January 14, 2013, the Department rejected petitioners request, explaining that as

of this date nothing has personally happened to you. Id.33a.

Petitioner also sought relief in state court, repeatedly objecting to the states

refusal to provide him with the protocol on due process grounds. In a memorandum

filed with the state district court on November 30, 2012, petitioner argued that the

stay of his state-court proceedings should not be lifted because the state had refused

to reveal its execution protocol:

The State of Louisiana has no currently publicized execution process. To the

extent that the State has secretly adopted an amended protocol, the States

secrecy violates Mr. Sepulvados due process rights and leaves open the

possibility that the State will execute him in an inhumane, constitutionally

unsound manner.

C.A. R. at 188. Petitioner reiterated his concerns in a motion for stay of execution

after the state court issued his death warrant:

Petitioner knows of no currently publicized execution process in Louisiana.

Louisiana cannot execute Christopher Sepulvado with the same method it

used in its eight previous executions. If the State has secretly adopted an

amended execution protocol, the very secrecy of that amendment would

violate Mr. Sepulvados due process rights and leaves open the very real

possibility that the State will execute him in an inhumane, constitutionally

unsound manner.

C.A. R. at 218. After the state district court denied this motion, petitioner filed an

application for writ of review in the Supreme Court of Louisiana, once again


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objecting that the state had not provided him with a current execution protocol in

violation of his due process rights. C.A. R. 263. The Supreme Court of Louisiana

denied the writ on January 23, 2013. State v. Sepulvado, No. 13-0098 (La. Jan. 23,

2013); 105 So. 3d 59. Petitioner intervened in this 1983 action on the same day.

While petitioner has actively sought the execution protocol, the state has

continued to drag its feet in related discovery following the Fifth Circuits decision,

causing petitioner to delay his filing in this Court, and making it increasingly likely

that petitioner will be put to death without knowing the method of his

execution. On January 7, 2014 petitioner filed a set of discovery requests seeking

information regarding the nature and origin of the drug by which he would be

executed. Plaintiff Christopher Sepulvados Second Set of Requests for Production,

Hoffman v. Jindal, No. 3:12-cv-00796 (M.D. La. Jan. 7, 2014). The state promised

to comply by January 24, 2014, Stay App. 44a, causing petitioner to delay his filing

with this Court in anticipation of the new documents. But on January 24, 2014, the

state reversed course and refused to produce the requested documents, instead

alleging that it would do so within the applicable delay, i.e., by February 6, 2014

the day after petitioners scheduled execution date. Id. 46a.

Petitioner has moved expeditiously to file this petition. On January 7, 2014,

the state issued a death warrant specifying an execution date of March 7, 2014. On

January 10, the state moved the execution date up to February 5.


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V. THIS COURT HAS NEVER CONFRONTED THE QUESTIONPRESENTED IN THE PROCEDURAL POSTURE OF THIS CASE

A handful of condemned inmates have raised similar issues in the past. But

none of those cases properly raised the Question Presented.

In Brewer v. Landrigan, 131 S. Ct. 445, 445 (2010) (mem.), by the time the

case reached this Court, the inmate had almost complete information about the

protocol by which he would be executed; he had secured (1) the names of the drugs

that would be used in his execution, (2) their expiration dates, (3) information that

the sodium thiopental that would be used was not obtained from or manufactured

by Hospira, Inc., (4) the states avowal that a sufficient quantity of the drugs was

lawfully obtained with the approval of U.S. Customs and FDA officials, and (5) the

states avowal that it would not depart from the stated protocol. SeeLandrigan v.

Brewer, No. CV-10-2246-PHX-ROS, 2010 WL 4269559, at *1, *4 (D. Ariz. Oct. 25,

2010); Anticipatory Motion to Lift Stay at 1, Landrigan v. Trujillo, 131 S. Ct. 445

(No. 10-A416). Moreover, the plaintiff had learned that the sodium thiopental that

would be used in his execution was imported from Great Britain. SeeLandrigan v.

Brewer, 625 F.3d 1132, 1143 (9th Cir. 2010) (Kozinski, J., dissenting from the denial

of rehearing en banc); Supplemental Response to Motion to Vacate Stay at 3,

Landrigan, 131 S. Ct. 445 (No. 10-A416) (admitting knowledge that the state

obtained its sodium thiopental from Britain). The inmates claim was limited to

the narrow assertion that the states refusal to provide a single piece of information

the sourceof the sodium thiopental that would be used in his execution violated


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his right to due process. This Court vacated the district courts stay of execution by

a vote of five to four, finding that, given all the other information already available

to the plaintiff about the execution protocol, he had failed to show that the use of

the drug was sure or very likelyto cause serious illness and needless suffering in

violation of the Eighth Amendment. Landrigan, 131 S. Ct. at 445 (quoting Baze v.

Rees, 553 U.S. 35, 50 (2008) (plurality opinion)) (internal quotation marks omitted).

In Yowell v. Livingston, 134 S. Ct. 417 (2013) (mem.), the condemned inmate

knew the identity, source, and potency of the drug that Texas would use to execute

him.9 There was no indication that Texas would change its protocol. The inmate

argued instead that the states failure to disclose information in a timelymanner

regarding the method of his execution violated his constitutional right of access to

courts. Whitaker v. Livingston, 732 F.3d 465, 467 (5th Cir. 2013). The district court

denied his stay request, finding that Texas notified the public on one of its websites

that it uses pentobarbital more than a year before Mr. Yowells scheduled

execution and that Texas promptly disclosed information about the drugs source to

Mr. Yowell upon request. Opinion on Preliminary Injunction at 4, Whitaker v.

9SeePetition for a Writ of Certiorari at 10, Yowell, 134 S. Ct. 417 (No. 13-6809) ([I]nformation

from three different sources revealed that TDCJ intended to use compounded pentobarbital from

Woodlands Compounding Pharmacy to execute Mr. Yowell . . . .); see also Respondents Brief in

Opposition to Petition for Writ of Certiorari and Application for Stay of Execution at 1, Yowell, 134 S.Ct. 417 (No. 13-6809) (The state intends to execute Yowell by administering a lethal injection of 5

grams of pentobarbital in accordance with the execution protocol adopted by [TDCJ] and utilized for

twenty-three [executions] since July 10, 2012. When the states supply of pentobarbital was

exhausted in September 2013, the state obtained compounded pentobarbital with a potency of 98.8%

for use in executions beginning with Yowell.).


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Livingston, No. H-13-2901 (S.D. Tex. Oct. 5, 2013); see also id. at 45. The Fifth

Circuit affirmed, agreeing with the district court that the state complied with

requests for information about how it intended to execute Yowell promptly after the

plaintiffs requested that information. Whitaker, 732 F.3d at 467. This Court

denied Mr. Yowells petition for a writ of certiorari and application for a stay of

execution. Yowell, 134 S. Ct. at 417.

InBeaty v. Brewer, 131 S. Ct. 2929 (2011) (mem.), the inmate asserted that

the state had violated due process by changing its protocol soon before the planned

execution. As in Yowell, the constitutional claim thus went to the timing of the

states disclosure, rather than to its existence. The district court denied the stay

request, Beaty v. Brewer,791 F. Supp. 2d 678, 686 (D. Ariz. 2011), and the Ninth

Circuit affirmed, Beaty v. Brewer, 649 F.3d 1071, 1072 (9th Cir. 2011). Seven

judges dissented from the courts denial of rehearing en banc, arguing that Mr.

Beaty has a protected interest in knowing and being given an opportunity to be

heard about the States use of pentobarbital in his execution, in contrast to its

protocol in past executions. Were it otherwise, the capital defendants due process

right to review such protocols would be meaningless. Id. at 1073 (dissent from the

denial of rehearing en banc). This Court denied Mr. Beatys petition for a writ of

certiorari and application for a stay of execution. Beaty, 131 S. Ct. at 2929.

InSizer v. Oken, 542 U.S. 916 (2004) (mem.), the condemned inmate asserted

that the state had unduly delayed in providing him with a copy of its execution


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protocol three days before his scheduled execution. SeeOken v. Sizer,321 F. Supp.

2d 658, 66061 (D. Md. 2004). Again, the inmates objection related to the timing of

the disclosure. The district court

[was] not prepared to say that Oken [was] likely to prevail in establishing

that the manner in which the State of Maryland would administer a lethal

injection to him constitutes a cruel and unusual punishment or even, as he

might argue hereafter, that the issue he raises [was] sufficiently serious and

substantial as to merit a further stay.

Id.at 667. Nonetheless, the court granted a stay of execution after concluding that

Defendants themselves contributed to this state of affairs by their last minute

amendment of the Execution Protocol and by their even later delivery of a copy of

that Protocol (moreover, incomplete Protocol) to Okens counsel. Id. The state

sought vacatur in this Court, explaining that Mr. Oken was not entitled to a stay of

execution to have his Eighth Amendment claim heard because he purposely waited

until the last minute to raise it. Emergency Application to Chief Justice to Vacate

Stay of Execution at 4, Oken, 542 U.S. 916 (No. 03-A1023). Mr. Oken had not

requested or challenged the states lethal injection protocol for over a decade, even

though there was no mystery as to the basic procedure for execution by lethal

injection to be used in Maryland and across the country. Id.at 4. Mr. Oken first

requested a copy of the protocol a month and four days before his scheduled

execution, and there was strong evidence that his 1983 claim was a mere tactic for

delay. This Court vacated the stay by a vote of six to three. Oken, 542 U.S. at 916.


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This case is entirely unlike those in which similar issues have previously

come before this Court. In prior cases, the inmate possessed all the material

information he would need for a court to assess whether his execution would

comport with the Eighth Amendment. The state had irrevocably committed to

refrain from changing its protocol and there was no evidence in the record to

suggest that the drug obtained from a foreign source is unsafe and no showing

that the drug was unlawfully obtained. Landrigan, 131 S. Ct. at 445. By contrast,

here, Louisiana has made no such commitment to refrain from changing its protocol

and there is substantial evidence that Louisianas protocol willchange. In earlier

cases, the information available meant that the courts were able to determine

whether the method of execution was consistent with the Eighth Amendment; here,

the states secrecy altogether prevents courts from making that determination.

Further, to the extent that Louisiana has represented an intent to procure

pentobarbital, it has not provided any information about the provenance of the

drug, and its commercial unavailability renders that representation highly suspect.

Petitioner thus faces a serious risk of suffering excruciating pain during his

execution, without any opportunity to challenge Louisianas protocol in court.10

10

In Williams v. Hobbs, 133 S. Ct. 97 (2012) (mem.), inmates brought a 1983 challenge to theArkansas Method of Execution Act, arguing, inter alia, that the statute violated their due process

right of access to courts by preventing them from learning how their executions would be carried out.

Jones v. Hobbs, No. 5:10CV00065JLH, 2010 WL 1417976, at *1 (E.D. Ark. Apr. 5, 2010). The district

courtdismissed the case for failure to state a claim upon which relief could be granted, finding that

the inmates in fact had access to the states current execution protocol, that they could submit a

request to obtain information about future protocols pursuant to the Arkansas Freedom of


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VI. CONCLUSIONFor the foregoing reasons, petitioner respectfully requests that this Court

grant him a stay of execution, now scheduled for February 5, 2014, pending

resolution of his petition for a writ of certiorari and, if the writ is granted, further

order of the Court. In the alternative, petitioner requests that the Court issue an

order directing the state to refrain from conducting the execution in a manner that

materially deviates from the execution protocol previously disclosed to petitioner.

Respectfully submitted,

Kathleen KellyGary ClementsCAPITAL POST-CONVICTION PROJECT

OF LOUISIANA1340 Poydras St.Suite 1700New Orleans, LA 70112

Jonathan MasseyMASSEY &GAIL LLP1325 G St., N.W.Suite 500Washington, DC 20005

Thomas C. GoldsteinCounsel of Record

Tejinder SinghGOLDSTEIN &RUSSELL,P.C.5225 Wisconsin Ave. N.W.Suite 404Washington, DC 20015(202) [email protected]

January 27, 2014

Information Act, and that their argument that the Director of the Arkansas Department of

Corrections would unilaterally depart from the protocol was speculative. Id.at *3*4. The Eighth

Circuit affirmed. Williams v. Hobbs, 658 F.3d 842, 852 (8th Cir. 2011). After the inmates sought

certiorari, the state stayed all executions and the inmates dismissed their petition. Williams, 133 S.

Ct. at 97. No stay of execution was sought in this Court.


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APPENDIX A

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Lundbeck overhauls pentobarbital distribution program to restrict misuse

Release date: 01-07-2011 Release time: 06:00

New specialty pharmacy drop ship program will deny distribution of pentobarbital to prisons in U.S. statescurrently carrying out the death penalty by lethal injection.

Lundbeck today announced that the company has moved to alter the distribution of its medicine Nembutal(pentobarbitalsodium injection, USP) in order to restrict its application as part of lethal injection in the U.S. Going forward, Nembutal will besupplied exclusively through a specialty pharmacy drop ship program that will deny distribution of the product to prisons in U.states currently active in carrying out the death penalty by lethal injection. The company notified its distributors of the plan inlate June.

The new distribution program ensures that hospitals and treatment centers will continue to have access to Nembutal fortherapeutic purposes. Under the program, Lundbeck will review all Nembutal orders before providing clearance for shipping tproduct and deny orders from prisons located in states currently active in carrying out death penalty sentences.

Prior to receiving Nembutal, the purchaser must sign a form stating that the purchase of Nembutal is for its own use and that will not redistribute any purchased product without express written authorization from Lundbeck. By signing the form, thepurchaser agrees that the product will not be made available for use in capital punishment.

"Lundbeck adamantly opposes the distressing misuse of our product in capital punishment. Since learning about the misuse have vetted a broad range of remedies - many suggested during ongoing dialogue with external experts, government officialsand human rights advocates. After much consideration, we have determined that a restricted distribution system is the mostmeaningful means through which we can restrict the misuse of Nembutal," says Ulf Wiinberg, Chief Executive Officer of H.

Lundbeck A/S and continues: "While the company has never sold the product directly to prisons and therefore can't makeguarantees, we are confident that our new distribution program will play a substantial role in restricting prisons' access toNembutal for misuse as part of lethal injection."

Lundbeck has initiated a thorough investigation of the distribution of Nembutal to assess ways of restricting prisons' access tothe medicine. Based on the initial findings, the company believes its new distribution program is the best way to achieve this.The investigation will be completed, and any possible further options that may be discovered will be evaluated.

Prior to the implementation of the drop ship program, Nembutal was sold through a more standard process utilizing severaldistributors to fulfill orders based on whether customers held the appropriate federal and state licenses for ordering controllesubstances.

Meets important medical need

Nembutal represents less than one percent of Lundbeck's global sales but the company chose not to withdraw the product frthe market because the product continues to meet an important medical need in the U.S. Nembutal is used to treat seriousconditions such as a severe and life threatening emergency epilepsy.

In a recent survey of more than 200 U.S. physicians and pharmacists conducted by independent third-party researchcompanies, 90 percent of the respondents stated that options for treating patients requiring emergency control of certain acuconvulsive episodes would be compromised if Nembutal were no longer available for use. Furthermore, 95 percent ofrespondents reported that it is very important for their institution to have access to Nembutal for potential use in the medicalcare of patients. All survey respondents were from academic institutions, large community hospitals or epilepsy centers in theU.S.

Contacts

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Mads Kronborg, Media Relations ManagerTelephone (direct): +45 36 43 28 51

Simon Augustesen, Media RelationsTelephone (direct): +45 36 43 49 80

About Lundbeck

H. Lundbeck A/S (LUN.CO, LUN DC, HLUKY) is an international pharmaceutical company highly committed to improving thequality of life for people suffering from central nervous system (CNS) disorders. For this purpose Lundbeck is engaged in theresearch and development, production, marketing and sale of pharmaceuticals across the world, targeted at disorders such depression and anxiety, schizophrenia, insomnia, Huntington's, Alzheimer's and Parkinson's diseases.

Lundbeck was founded by Hans Lundbeck in 1915 in Copenhagen, Denmark, and today employs 5,900 people worldwide.Lundbeck is one of the world's leading pharmaceutical companies working with CNS disorders. In 2010, the company's revenwas DKK 14.8 billion (approximately EUR 2.0 billion or USD 2.6 billion). For more information, please visit www.lundbeck.com

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APPENDIX B

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H. Lundbeck A/S

Ottiliavej 9 Tlf +45 36 30 13 11 E-mail [email protected]

DK-2500 Valby, Denmark Fax +45 36 43 82 62 www.lundbeck.com

Press release

Valby, 22 December 2011

Lundbeck divests several products in the US as part of long-term business strategy

The divestiture of a portfolio of products, including Nembutalsupports Lundbecks

long-term strategy to focus on newer, strategic products in its US subsidiary portfolio.

H. Lundbeck A/S (Lundbeck) today announced that the company has entered into an

agreement with Akorn Inc. (Akorn) whereby Akorn has acquired a portfolio of products

comprising Nembutal(pentobarbital sodium injection, USP), Cogentin

(benztropine

mesylate injection) and Intravenous Sodium Diuril(chlorothiazide sodium). This transaction

is part of Lundbecks long-term strategy to focus on newer, strategic products in its portfolio.

As part of the agreement, Akorn will continue with Lundbecks restricted distribution

programme for Nembutal, which was implemented to restrict the use of the product in the

US.

The three products became part of Lundbecks product portfolio through the acquisition

of Ovation Pharmaceuticals, Inc. in 2009, and the medicines have never been of

strategic importance to Lundbeck. Moving forward, Lundbeck will focus on newer

therapies within its product portfolio that predominantly address central nervous system

(CNS) disorders. In the coming years, Lundbeck US plans to launch OnfiTM

for the

treatment of Lennox-Gastaut syndrome,aripiprazole depot formulation for the treatment ofschizophrenia and Lu AA21004 for the treatment of major depressive disorder.

The US market is a key growth driver for Lundbeck. This transaction allows us to focus on

newer, strategic products with significant revenue potential, such as OnfiTM

,aripiprazole depot

and Lu AA21004, says Ulf Wiinberg, President & Chief Executive Officer at Lundbeck.

Under the terms of the agreement, Akorn has acquired and retains all of Lundbecks rights

and responsibilities for the manufacturing, distribution and sale of the three products included

in the agreement. The agreement concerns Lundbecks US rights for Nembutaland global

rights, including US, for Cogentinand Diuril

..

According to the agreement, Akorn will upfront and as a milestone payment after three years

pay a maximum of $60 million in cash. Lundbeck will not receive any royalties based on future

Nembutalsales. The transfer of the product portfolio is immediate, although certain filings

will still need to be made with the applicable regulatory authorities to reflect the transfer. For a

specified time period, Lundbeck will perform certain services on behalf of Akorn to ensure that

these products will continue to be available to meet the unmet medical needs of patients.

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Lundbeck contacts

Mads Kronborg Simon Mehl Augustesen

Media Relations Manager International Media [email protected] [email protected]

+45 36 43 28 51 +45 36 43 49 80

About Lundbeck

H. Lundbeck A/S (LUN.CO, LUN DC, HLUKY) is an international pharmaceutical company

highly committed to improve the quality of life for people suffering from central nervous

system (CNS) disorders. For this purpose Lundbeck is engaged in the research and

development, production, marketing and sale of pharmaceuticals across the world, targeted at

disorders like depression and anxiety, schizophrenia, insomnia, Huntington's, Alzheimer's and

Parkinson's diseases.

Lundbeck was founded by Hans Lundbeck in 1915 in Copenhagen, Denmark, and today

employs 5,900 people worldwide. Lundbeck is one of the world's leading pharmaceutical

companies working with CNS disorders. In 2010, the company's revenue was DKK 14.8

billion (approximately EUR 2.0 billion or USD 2.6 billion). For more information, please visit

www.lundbeck.com.

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mailto:[email protected]:[email protected]:[email protected]:[email protected]


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APPENDIX C

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CAPITAL POST-CONVICTION PROJECT OF LOUISIANA1340 POYDRAS SUITE 17

NEW ORLEANS, LOUISIANA 701 1 2PHONE: (504) 212-2110 / FAX: (504) 212-2130

GARY CLEMENTS ESQ.DIRECTOR

E"MA L: [email protected]

April 16, 2012Louisiana Department of CorrectionsP.O. Box 94304 By Fax: 225-342-3095And 1 t Class MailBaton Rouge, Louisiana 70804-9304Attn: Department ofCorrections Secretary James M. LeBlanc

Re: Request for Public Records re:Drugs Used by the Department o Corrections n Executing a Sentence o Deathby Lethal InjectionDear Mr. LeBlanc:Pursuant to the Louisiana Public Records Act, La.R.S. 44:1, et seq. I hereby request a copy ofthe following material:

Any and all documentary material possessed by the LouisianaDepartment of Correction (DOC), including at the Louisiana StatePenitentiary at Angola, relating the DOC s possession of or ability toobtain sodium thiopental or any other chemical anesthetic for use inlethal injection executions in Louisiana. This includes but is notlimited to:o The current, total quantity of sodium thiopental in thepossession of or readily obtainable by the DOC;o The date(s) of expiration of the sodium thiopental in thepossession of or readily obtainable by the DOC. f there aredistinct quantities of sodium thiopental with differentexpiration dates, please indicate such.o The names and countries of origin of the manufacturer(s) anddistributer(s of the sodium thiopental currently possessed byor readily obtainable by the DOC and all communicationsbetween the DOC and said manufacturer(s) and distributer(s).This includes but is not limited to any pending, fulfilled,refused, or partially fulfilled requests or orders by the DOC forquantities of sodium thiopental.o The current, total quantity of any other anesthetic chemicalbesides the sodium pentothal in the possession of or readilyobtainable by the DOC;

USCA5 2

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Page 2 ofApril 16,2012Letter re: PRA Request Drugs for Use in Louisiana Executions by Lethal Injection

o The date(s of expiration of any other anesthetic chemicalbesides the sodium thiopental in the possession of or readilyobtainable by the DOC. If there are distinct quantities ofsodium thiopental with different expiration dates, pleaseindicate such.o The names and countries of origin of the manufacturer(s) anddistributer(s) of any other anesthetic chemical besid

Documents

Sepulvado Stay Application and Appendix