No. 07-14956-P

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IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

───────────────♦───────────────

DANIEL SIEBERT,

Plaintiff/Appellant,

VS.

RICHARD ALLEN, et al.,

Defendants/Appellees.

───────────────♦───────────────

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

(Civil Action Number 2:07-cv-00295-MEF-WC)

PETITION FOR REHEARING EN BANC

Troy King

Attorney General

J. Clayton Crenshaw*

James W. Davis

Corey L. Maze

Jasper B. Roberts, Jr.

Assistant Attorneys General

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, AL 36130-0152

(334) 242-7300 Office

October 25, 2007 (334) 353-3637 Fax

EXECUTION SCHEDULED FOR OCTOBER 25, 2007

C-1 of 2

No. 07-14956-P

DANIEL SIEBERT V. RICHARD ALLEN, ET AL.

CERTIFICATE OF INTERESTED PERSONS

Undersigned counsel certifies that the following

persons may have an interest in the outcome of this case:

1. Richard Allen, Commissioner of Alabama Department

of Corrections;

2. Anne Borelli, Counsel for Appellant;

3. J. Clayton Crenshaw, Assistant Attorney General;

4. Grantt Culliver, Warden of Holman Correctional

Facility;

5. James W. Davis, Assistant Attorney General;

6. Christine A. Freeman, Counsel for Appellant;

7. Hon. Mark E. Fuller, United States District Judge;

8. Thomas M. Goggans, Counsel for Appellant;

9. Linda Jarman, capital murder victim;

10. Hon. Troy King, Alabama Attorney General;

11. Corey L. Maze, Assistant Attorney General;

12. Jasper B. Roberts, Jr., Assistant Attorney

General;

C-2 of 2

13. Daniel Siebert, death row inmate and appellant;

14. Chad Weathers, capital murder victim;

15. Joseph Weathers, capital murder victim; and

16. Sherri Weathers, capital murder victim.

s/ J. Clayton Crenshaw

J. Clayton Crenshaw (CRE007)

Alabama Assistant Attorney General

i

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied

professional judgment, that the panel decision is contrary

to the following decisions of the Supreme Court of the

United States or the precedents of this circuit and that

consideration by the full court is necessary to secure and

maintain uniformity of decisions in this Court:

Issue I

1. Rutherford v. Crosby, 438 F.3d 1087, 1093 (11th Cir. 2006).

2. Thomas v. Wainwright, 788 F.2d 684, 689 (11th Cir. 1986).

3. Jones v. Smith, 786 F.2d 1011, 1012 (11th Cir.

1986).

4. Bowden v. Kemp, 774 F.2d 1494, 1495 (11th Cir.

1985).

5. Hill v. McDonough, 126 S.Ct. 2096 (2006).

6. Arthur v. Allen, No. 07-13929, 2007 WL 2709942 (11th Cir. Sept. 17, 2007).

7. Williams v. Allen, __ F.3d __, 2007 WL 2368028

(11th Cir. Aug. 21, 2007).

8. Grayson v. Allen, 491 F.3d 1318 (11th Cir. 2007).

9. Rutherford v. McDonough, 466 F.3d 970 (11th Cir.

2006).

ii

Issue II

1. Nelson v. Campbell, 541 U.S. 637, 650, 124 S.Ct.

2117, 2126 (2004).

2. Hill v. McDonough, 126 S.Ct. 2096, 2104 (2006).

s/ J. Clayton Crenshaw

J. Clayton Crenshaw (CRE007)

Alabama Assistant Attorney General

iii

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .......................C-1

STATEMENT OF COUNSEL ......................................i

TABLE OF AUTHORITIES .....................................iv

STATEMENT OF THE ISSUES ...................................1

STATEMENT OF THE COURSE OF PROCEEDINGS AND

DISPOSITION OF THE CASE ...................................2

ARGUMENT................. .................................6

I. THE MAJORITY OPINION’S RULING IS

INCONSISTENT WITH THE LONGSTANDING PRECEDENT OF THIS COURT THAT HOLDS, IN SIMPLE AND

STRAIGHTFORWARD TERMS, THAT A GRANT OF

CERTIORARI ALONE IS NOT A VALID REASON FOR THIS COURT TO GRANT A STAY OF

EXECUTION.............. ...............................6

II. THE CONCURRING OPINION IS INCONSISTENT WITH THE REQUIREMENT STATED IN HILL AND NELSON

THAT REQUIRES A STAY APPLICANT TO ESTABLISH

A SIGNIFICANT LIKELIHOOD OF SUCCESS ON THE MERITS................ ...............................10

CONCLUSION................... ............................15

CERTIFICATE OF SERVICE ...................................16

iv

TABLE OF AUTHORITIES

Cases

Arthur v. Allen, No. 07-13929, 2007 WL 2709942

(11th Cir. Sept. 17, 2007)............................i, 9

Baze v. Rees, No. 07-5439, 2007 WL 2850507 (U.S.

Oct. 3, 2007).......................................passim

Diaz v. McDonough, 472 F.3d 849 (11th Cir. 2006) .........15

Ex parte Siebert, 555 So. 2d 780 (Ala. 1989) ..............2

Ex parte Siebert, 562 So. 2d 600 (Ala. 1990) ..............2

Grayson v. Allen, 491 F.3d 1318 (11th Cir. 2007) .......i, 9

Hill v. McDonough, 126 S. Ct. 2096 (2006) .............9, 14

Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006) ........15

Nelson v. Campbell, 541 U.S. 637 (2004) ..............passim

Rutherford v. Crosby, 438 F.3d 1087 (11th Cir. 2006)...........................................i, 5, 7, 9

Rutherford v. McDonough, 466 F.3d 970 (11th Cir. 2006).................................................i, 9

Siebert v. Allen, __ F.3d __, 07-14956 (11th Cir.

Oct. 24, 2007)...........................................7

Siebert v. Allen, 127 S. Ct. 1823 (2007) ..................2

Siebert v. Allen, No. 07-14956 (11th Cir. Oct. 24, 2007)....................................................6

Siebert v. State, 555 So. 2d 772 (Ala. Crim. App. 1989)....................................................2

Siebert v. State, 778 So. 2d 842 (Ala. Crim. App.

1989)....................................................2

v

Williams v. Allen, __ F.3d __, No. 07-13638, 2007 WL 2368028 (11th Cir. Aug. 21, 2007).....................9

STATEMENT OF THE ISSUES

1. Whether the majority opinion’s ruling is

inconsistent with the longstanding precedent of this Court

that holds, in simple and straightforward terms, that a

grant of certiorari alone is not a valid reason for this

Court to grant a stay of execution?

2. Is the concurring opinion inconsistent with the

requirement stated in Hill and Nelson that requires a stay

applicant to establish a significant likelihood of success

on the merits?

2

STATEMENT OF THE COURSE OF PROCEEDINGS AND DISPOSITION OF

THE CASE

Daniel Siebert (“Siebert”) has been on Alabama’s death

row for over twenty years for the capital murder of Sherri

Weathers and her two children, Chad and Joey. Siebert v.

State, 555 So. 2d 772, 773-75 (Ala. Crim. App. 1989),

aff’d, Ex parte Siebert, 555 So. 2d 780 (Ala. 1989).1

Siebert exhausted his state and federal appeals when the

Supreme Court denied certiorari on March 19, 2007. Siebert

v. Allen, 127 S. Ct. 1823 (2007). It was at that point,

out of appeals and facing imminent execution, that Siebert

filed a § 1983 action challenging Alabama’s execution

procedures. See Doc. 1 (filed on April 9, 2007). This

original complaint raised the same claim – a general

challenge to Alabama’s lethal injection procedures – that

this Court considered in appeals by inmates Jones, Grayson,

Williams, and Arthur.

On July 19, 2007, Siebert filed an amended complaint

adding a cause of action “on the basis of his recent

preliminary diagnosis of hepatitis C and pancreatic

1 Siebert was also sentenced to death for committing a different capital offense on the same evening. Siebert v. State, 778 So. 2d 842 (Ala. Crim.

App. 1989), aff’d, Ex parte Siebert, 562 So. 2d 600 (Ala. 1990). The federal district court’s order refers to that case as the “Jarman murder.” Doc. 70

at 6 n.7.

3

cancer.” Doc. 21 at ¶ 2. The federal district court

interpreted Siebert’s allegation as follows: “Siebert …

urges a specific challenge to that method of execution as

it will be applied to him with his particular medical

problems and the particular potential drug interactions

between drugs he is taking for his medical problems and the

drugs used in the lethal injection protocol.” Doc. 39 at

7. Siebert brought his “as applied” claim specifically

under Nelson v. Campbell, 541 U.S. 637 (2004). Blue Br. at

4. Accordingly, this petition refers to Siebert’s “as

applied” claim as a Nelson claim.

On October 3, 2007, the federal district court granted

in part and denied in part the Commissioner’s motion to

dismiss Siebert’s amended complaint. Doc. 39. The Court

ruled that “this Court is compelled to find that with

respect to Siebert’s general challenges to the execution

protocol, Siebert is not entitled to injunctive relief

because he delayed in filing his method-of-execution § 1983

suit until his execution was imminent.” Doc. 39 at 18.

However, the Court denied the Commissioner’s request to

dismiss the Nelson claim, ruling that Siebert did not

unreasonably delay in filing that claim. Therefore, at the

4

time Siebert filed his motion to stay execution, the only

claim remaining was his Nelson claim.

Even though the district court did not deny Siebert’s

Nelson claim, Siebert never sought any discovery nor did he

present any evidence to support those allegations. Siebert

never sought to expedite this claim by requesting that the

district court hold an evidentiary hearing.

On October 9, 2007, Siebert filed “Plaintiff’s

Emergency Motion for Preliminary Injunction to Stay

Execution.” See Doc. 44. In that motion, Siebert

primarily contended that a stay of execution should be

granted because the United States Supreme Court has granted

certiorari in Baze v. Rees, No. 07-5439, 2007 WL 2850507

(U.S. Oct. 3, 2007), that will, according to Siebert,

decide the standard for determining what is cruel and

unusual punishment under the Eighth Amendment. Doc. 44.

Although Siebert filed numerous exhibits to his motion for

a stay, he did not submit one whit of evidence in support

of his Nelson claim. However, in his reply brief (filed on

October 19, 2007), Siebert submitted an unsworn letter from

an oncologist that speculates that Siebert might

regurgitate his stomach contents during an execution and

5

that he might have compromised veins. Doc. 64, Ex. D.

Even though the letter is dated October 12, 2007, see id.,

Siebert withheld it until October 19, when he filed it with

the district court. Siebert offered no explanation for

failing to file this letter earlier.

The district court denied Siebert’s request for a stay

because “Siebert has not established a substantial

likelihood of success on the merits of [his Nelson] claim.”

Doc. 70 at 29. The district court further noted that

Siebert’s Nelson claim was “speculative” and “unsupported.”

Id. at 31. The district court also noted that “[m]uch of

the argument before this Court focuses … on the general

challenge to the lethal injection protocol which, as a

procedural matter, is not properly before this Court on

this motion.” Id. at 28.

The district court also rejected Siebert’s request to

grant a stay because of the grant of certiorari in Baze.

The district court stated that “[r]ather than trying to

read the tea leaves about what the Supreme Court might do

next, this Court will take these binding precedents at face

value.” Doc. 70 at 25 (citing Rutherford v. Crosby, 438

F.3d 1087, 1093 (11th Cir. 2006))(declining to stay

6

execution based on grant of certiorari in another case

raising an issue identical to what one movant was raising

because circuit precedent was unchanged by mere grant of

certiorari and because the Supreme Court is in a better

position to determine if a stay is appropriate pursuant to

that binding precedent, the district court ruled that it

“cannot grant the relief requested on the basis of the

grant of certiorari in Baze v. Rees.” Doc. 70 at 26.

This Court reversed the district court’s ruling without

acknowledging the binding precedent relied on by the

district court. Siebert v. Allen, No. 07-14956 (11th Cir.

Oct. 24, 2007). The majority opinion granted the stay of

execution because of the grant of certiorari in Base. The

special concurring opinion did not agree with the

majority’s analysis but instead would have granted a stay

on Siebert’s Nelson claim.

ARGUMENT

I. THE MAJORITY OPINION’S RULING IS INCONSISTENT WITH THE

LONGSTANDING PRECEDENT OF THIS COURT THAT HOLDS, IN

SIMPLE AND STRAIGHTFORWARD TERMS, THAT A GRANT OF

CERTIORARI ALONE IS NOT A VALID REASON FOR THIS COURT

TO GRANT A STAY OF EXECUTION

The per curiam majority opinion reversed the district

court on the straightforward ground that the Supreme Court

7

“is presently considering the constitutionality of the

challenged lethal injection protocol in Baze v. Rees, No.

07-5439, 2007 WL 2850507 (U.S. Oct. 3, 2007).” Siebert v.

Allen, __ F.3d __, 07-14956 (11th Cir. Oct. 24, 2007).

Thus, this Court reversed “the district court’s denial of

Siebert’s Emergency Motion for a Preliminary Injunction and

we STAY his execution pending the Supreme Court’s

resolution of Baze v. Rees, after which the district court

shall reconsider its decision in light of any guidance

provided in the Supreme Court’s disposition of that case.”

Id. In denying the request for a stay based on the Supreme

Court’s grant of certiorari, the district court had applied

binding precedent from this Court. Doc. 70 at 25 (citing

Rutherford v. Crosby, 438 F.3d 1087, 1093 (11th Cir.

2006)).

In the case cited by the district court, but ignored by

the panel opinion, this Court was asked to grant a stay of

execution because the Supreme Court had granted certiorari

in Hill v. McDonough. See Rutherford, 438 F.3d at 1093.

This Court refused that request ruling that the “Supreme

Court is in a better position to decide whether it wants a

stay of execution issued in this case than we are[.]” Id.

8

In so holding, the Rutherford Court applied longstanding

precedent that goes back to 1985. In particular, the

Rutherford Court stated:

At least four times over the years we

have been asked to issue a stay of

execution based on a grant of certiorari in another case raising an issue

identical to one that the movant was

raising in the case before us, an issue

foreclosed by existing circuit precedent that might be overruled by the Supreme

Court. All four times we have declined

to do so because the grant of certiorari

does not change circuit precedent, and it makes more sense to let the Court that is

going to be deciding the issue determine

whether there should be a stay in another case raising it. Robinson v. Crosby, 358

F.3d [1281, 1284 (11th Cir.

2004)](declining to grant a stay pending

the Supreme Court’s decision in Nelson v. Campbell because “the grant of certiorari

alone is not enough to change the law of

this circuit or to justify this Court in granting a stay of execution on the

possibility that the Supreme Court may

overturn circuit law”); Thomas v.

Wainwright, 788 F.2d [684, 689 (11th Cir. 1986)](denying a stay even though

certiorari had been granted in another

case on the issue, because “to date, the

law in this Circuit, which has not been modified by Supreme Court decision,

mandates a denial of relief to petitioner

on this issue,” and “any implications to be drawn from the grant of certiorari in

the other case may be discerned by

application to the Supreme Court”); Jones

v. Smith, 786 F.2d [1011, 1012 (11th Cir. 1986)](same); Bowden v. Kemp, 774 F.2d

[1494, 1495 (11th Cir. 1985)](same).

9

Rutherford, 438 F.3d at 1093 (some internal punctuation

altered and omitted). The majority opinion in Siebert is

in conflict with Rutherford and its reference to this

Court’s prior precedents.2

The majority opinion also implicates the district

court’s dismissal of Siebert’s general challenge to

Alabama’s execution procedures. The majority opinion’s

grant of a stay implicitly (if not explicitly) reverses the

district court’s dismissal of Siebert’s Hill claim. The

district court, applying binding precedent from the Supreme

Court and this Court, had dismissed Siebert’s Hill claim

because it was filed with unjustifiable delay. Doc. 39 at

10-19 (citing Hill v. McDonough, 126 S. Ct. 2096 (2006);

Arthur v. Allen, No. 07-13929, 2007 WL 2709942 (11th Cir.

Sept. 17, 2007); Williams v. Allen, __ F.3d __, No. 07-

13638, 2007 WL 2368028 (11th Cir. Aug. 21, 2007); Grayson

v. Allen, 491 F.3d 1318 (11th Cir. 2007); Rutherford v.

McDonough, 466 F.3d 970 (11th Cir. 2006)). The majority

opinion’s grant of a stay until Baze is decided is in

2 The Rutherford Court acknowledges the anomalous decision of Mobley v. Head, 306 F.3d 1096 (11th Cir. 2002), but disregards it because of this Court’s

“prior panel precedent rule.” Rutherford, 438 F.3d at 1093 n. 4.

10

conflict with the above-cited decisions.

That the majority would overturn precedent to grant a

stay, based on the grant of a petition for certiorari in

Baze, is particularly troubling when Baze is not analogous

to the present case. The Baze case involves a general

lethal injection challenge. Siebert has no such challenge,

because it was properly dismissed as untimely filed under

this Court’s binding precedent. Whatever the Supreme Court

does in Baze, it will not inform the District Court in its

handling of Siebert’s Nelson claim. The cases are apples

and oranges. Therefore, even if this Court were in the

habit of granting stays based on cert. petitions, it should

not do so unless the case on certiorari is going to be

decided on the same basis as the case in which a stay is

sought.

II. THE CONCURRING OPINION IS INCONSISTENT WITH THE

REQUIREMENT STATED IN HILL AND NELSON THAT REQUIRES A

STAY APPLICANT TO ESTABLISH A SIGNIFICANT LIKELIHOOD

OF SUCCESS ON THE MERITS

The special concurring opinion did not agree with the

majority’s analysis but instead would have granted a stay

on Siebert’s Nelson claim. Specifically, the concurring

opinion states that Siebert is due a stay because: (1) the

Nelson claim was not filed unjustifiable delay, (2) the

11

Nelson claim survived a motion to dismiss, and (3) even

though Siebert brought this claim pursuant to Nelson v.

Campbell, 541 U.S. 637, 650, 124 S. Ct. 2117, 2126 (2004),

that Court’s holding regarding the balance of the equities

does not apply here. For the following reasons, the

Commissioner respectfully asserts that the concurring

opinion is in conflict with Nelson and Hill.

It should be emphasized that this case is on appeal

from the denial of a stay of execution. The Nelson Court

held that “[a] stay is an equitable remedy, and equity must

take into consideration the State’s strong interest in

proceeding with its judgment and attempts at manipulation.”

Nelson, 541 U.S. at 649, 124 S. Ct. at 2126 (internal

punctuation omitted). The Nelson Court further stated that

“there is a strong equitable presumption against the grant

of a stay where a claim could have been brought at such a

time as to allow consideration of the merits without

requiring entry of a stay.” Id. It stands to reason,

therefore, that the equitable presumptions against granting

a stay that are stated in Nelson would apply to the Nelson

claim brought by Siebert.

12

Although Siebert may not have unjustifiably delayed in

raising his Nelson claim, the strong equitable presumption

against granting a stay exists because of his delay after

filing the claim. Despite raising his Nelson claim on July

19, 2007, see Doc. 21 (amended complaint), Siebert did not

ask the federal district court “to expedite any aspect of

this lawsuit.” Doc. 70 at 6. Two months after filing his

amended complaint, Siebert filed a motion to allow a

physician to perform a “general physical examination.”

Doc. 32 at 1 (filed on September 26, 2007). Siebert

further stated in that motion that “[s]uch an examination

is necessary to Mr. Siebert’s presentation of his claims,

which include potential complications between his medical

condition, its treatment, and the lethal injection process

as conducted by the Defendants.” Id. Even though

Siebert’s motion was granted, see Docs. 35, 40, such an

examination has not been scheduled to this day. In

addition, Siebert has not presented any evidence to support

his conclusion that the pain medication he is presently

taking will counteract the effects of the drugs used in a

lethal injection, which is the primary allegation in his

amended complaint. Doc. 70 at 17.

13

If Siebert had truly wanted to litigate his Nelson

claim, he would at least have sought to expedite the case.

Siebert had three months from the time that he filed his

Nelson claim until his scheduled execution but he did not

take any action to litigate this claim. The federal

district court found, with no dispute from Siebert, that

“[a]t no point since the Alabama Supreme Court set his

execution [on July 30, 2007] has Siebert asked this Court

to expedite any aspect of this lawsuit.” Doc. 70 at 6 n.8.

The balance of the equities stated in Nelson v.

Campbell must be applied here, as they were in Nelson.

There can be no dispute that Siebert has not taken any

action to litigate his Nelson claim. Siebert’s lack of

action is an indication of his “attempt at manipulation.”

Nelson, 541 U.S. at 649, 124 S. Ct. at 2126. Thus, the

balance of the equities tilts against Siebert and his

request for a stay should have been rejected.

The concurring opinion is also inconsistent with the

requirement stated in Hill and Nelson that requires a stay

applicant to establish a significant likelihood of success

on the merits. Specifically, the Hill Court held: “Thus,

like other stay applicants, inmates seeking time to

14

challenge the manner in which the State plans to execute

them must satisfy all of the requirements for a stay,

including a showing of a significant possibility of success

on the merits.” Hill, 126 S. Ct. at 2104 (emphasis added).

Likewise, in Nelson, the Court noted that stay applicants

must demonstrate a likelihood of success on the merits.

Nelson, 541 U.S. at 649, 124 S. Ct. at 2126. The

concurring opinion ignores the “likelihood of success”

requirement stated in Nelson and Hill. The concurring

opinion essentially held that a Nelson claim that survives

a motion to dismiss is entitled to injunctive relief, and

that holding is in direct contradiction with Supreme Court

precedent.

The district court ruled that “Siebert has not

established a substantial likelihood of success on the

merits of this claim.” Doc. 70 at 29. The district court

ruled that Siebert’s Nelson claim is “speculative” and

“unsupported.” The concurring opinion does not dispute any

of these findings but instead states that it was an abuse

of discretion for the district court to base its opinion

solely on Siebert’s briefs and his proffer of evidence.

The concurring opinion’s holding is inconsistent with the

15

requirement in Nelson and Hill that the grant of a stay

requires a showing of a significant likelihood of success

on the merits.3

CONCLUSION

For the foregoing reasons, this Court should grant this

petition and affirm the district court’s denial of the stay

of execution.

Respectfully submitted,

Troy King

Alabama Attorney General

s/ J. Clayton Crenshaw

J. Clayton Crenshaw

James W. Davis Corey L. Maze

Jasper B. Roberts

Alabama Assistant Attorneys General

3 The concurring opinion’s discussion of the All Writs Act, 28 U.S.C. § 1651(a), ignores this Court’s holding that the balance of the equities

standard articulated in Nelson and Hill apply even if an inmate requests a stay pursuant to the All Writs Act. Diaz v. McDonough, 472 F.3d 849 (11th

Cir. 2006); Hill v. McDonough, 464 F.3d 1256 (11th Cir. 2006).

16

CERTIFICATE OF SERVICE

I hereby certify that on October 25, 2007, I filed the

foregoing with the United States Court of Appeals for the

Eleventh Circuit via electronic mail as follows:

Joyce Pope joyce_pope@ca11.uscourts.gov

I also certify that on October 25, 2007, I served a

copy of the foregoing via electronic mail to the following:

Anne E. Borelli

Anne_borelli@fd.org

Christine A. Freeman

Christine_Freeman@fd.org

Thomas M. Goggans

tgoggans@tgoggans.com

s/ J. Clayton Crenshaw

J. Clayton Crenshaw

Alabama Assistant Attorney General

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, AL 36130 (334) 242-7300 Office

(334) 353-3637 Fax

ccrenshaw@ago.state.al.us jimdavis@ago.state.al.us

cmaze@ago.state.al.us

jroberts@ago.state.al.us