No.

___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
MOTION FOR A STAY OF EXECUTION
_____________________________
TO: THE HONORABLE CLARENCE THOMAS, ASSOCIATE JUSTICE,
SUPREME COURT OF THE UNITED STATES
Petitioner Marcus Wellons, a death-sentenced prisoner in the State of Georgia,
requests that this Court stay his execution currently scheduled for 7:00 p.m. on Tuesday,
June 17, 2014, until further order of this Court, in order to permit the consideration and
disposition of his petition for writ of certiorari to the United States Court of Appeals for
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the Eleventh Circuit.
PROPOSED QUESTIONS PRESENTED
Appellants refuse to disclose the provenance of the compounded drugs or the
qualifications of the personnel who will administer them when executing Mr. Wellons by
lethal injection this evening.
1) Does Appellants refusal to disclose information necessary to determine whether
their chosen method of execution will create a substantial risk of significant
harm violate Mr. Wellonss rights pursuant to the Eighth and Fourteenth
Amendments to the United States Constitution?
2) Does Appellants refusal to disclose information necessary to determine whether
their chosen method of execution will create a substantial risk of significant
harm deprive him of due process of law and access to the courts in violation of
Mr. Wellonss rights pursuant to the Fifth and Fourteenth Amendments to the
United States Constitution?
3) Does Appellants refusal to allow access to information about a governmental
proceeding of public interest and to which the public has traditionally had access
violate Mr. Wellonss rights pursuant to the First Amendment to the United States
Constitution?
JURISDICTION
Mr. Wellons invokes this Court's jurisdiction to stay his execution under 28 U.S.C.
1254 and Rule 23 of the Rules of the Supreme Court of the United States, pending the
filing and disposition of a petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
PROCEDURAL HISTORY
Mr. Wellons was convicted of malice murder and rape and sentenced to death in
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the Superior Court of Cobb County in 1993. The Supreme Court of Georgia affirmed Mr.
Wellonss convictions and sentences, Wellons v. State, 463 S.E.2d 868 (1995), and this
Court denied Mr. Wellonss certiorari petition, Wellons v. Georgia, 519 U.S. 830 (1996).
Mr. Wellons sought state habeas corpus relief, which was denied. Mr. Wellons filed a
petition for writ of habeas corpus in the District Court for the Northern District of
Georgia which was denied. The Eleventh Circuit Court of Appeals affirmed the denial of
relief on June 25, 2010. Wellons v. Hall, 554 F.3d 923 (11th Cir. 2006). This Court
granted Mr. Wellonss petition for writ of certiorari and remanded Mr. Wellonss case for
further consideration. Wellons v. Hall, 558 U.S. 220 (2010). After the Eleventh Court
1
remanded Mr. Wellonss case to the district court for further proceedings consistent with
the Supreme Courts opinion, Wellons v. Hall, 603 F. 3d 1326 (11th Cir. 2010), that
court entered its order and judgment denying habeas corpus relief on August 5, 2011.
The Eleventh Circuit affirmed the district courts denial of Mr. Wellonss habeas petition
on September 19, 2012. This Court denied his petition for a writ of certiorari on October
This Court found no procedural bar for Mr. Wellonss claims of judge, juror, and
1
bailiff misconduct, which centered upon unreported ex parte contacts between the jury
and the judge, that jurors and a bailiff had planned a reunion, and that either during or
immediately following the penalty phase, some jury members gave the trial judge
chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts ....
Wellons, 558 U.S. 220 (From beginning to end, judicial proceedings conducted for the
purpose of deciding whether a defendant shall be put to death must be conducted with
dignity and respect).
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7, 2013. Wellons v. Humphrey, 134 S.Ct. 177 (2013). Pursuant to an order entered by the
Superior Court of Cobb County on May 28, 2014, Appellants have scheduled Mr.
Wellons for execution on June 17, 2014.
On June 12, 2014, Mr. Wellons filed a complaint pursuant to 42 U.S.C. 1983 in
the United States District Court for the Northern District of Georgia seeking declaratory
and injunctive relief. Mr. Wellons concurrently a motion for a temporary restraining
order and stay of execution. That Court denied that motion and granted Appellants
motion to dismiss on June 16, 2014. Earlier today, Mr. Wellons appealed that judgment
to the Eleventh Circuit Court of Appeals. That Court denied his appeal. This timely
petition for a writ of certiorari follows.
REASONS FOR GRANTING A STAY
For a Circuit Justice to grant a stay of execution, a petitioner must show: 1)
irreparable injury if no stay is granted; 2) a reasonable probability that four (4) members
of the Court will consider the issue [presented] sufficiently meritorious to grant
certiorari, Graves v. Burnes, 405 U.S. 1201 (1972) (Powell, Circuit Justice), or a
reasonable probability that a plurality of the Court would grant relief on an original
habeas petition; and, 3) a likelihood of success on the merits. See Barefoot v. Estelle, 463
U.S. 880, 893 (1983); see also Fare v. Michael C., 439 U.S. 1310 (1978) (Rehnquist,
Circuit Justice). Mr. Wellons respectfully submits that he meets these standards.
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A. Irreparable Injury
If no stay is granted, Mr. Wellons will be executed at 7:00 p.m. this evening. This
constitutes irreparable injury. See, e.g., Evans v. Bennett, 440 U.S. 1301, 1306 (1979)
(Rehnquist, Circuit Justice, granting a stay of execution and noting the obvious
irreversible nature of the death penalty); OBryan v. Estelle, 691 F.2d 706, 708 (5th Cir.
1982) (the irreversible nature of the death penalty constitutes irreparable injury and
weighs heavily in favor of granting a stay). Further, the concerns that Mr. Wellons have
raised go to whether Appellants refusal to disclose information concerning the
provenance of their execution drugs and the qualifications of the personnel has concealed
a substantial risk of significant harm when they carry out his lethal injection this
evening. The potential injury, then, is not only his death, but a death by cruel and unusual
punishment. Mr. Wellons asked the district court and the Eleventh Circuit to stay his
execution based upon Eighth and Fourteenth Amendment concerns that are legitimate and
being raised repeatedly across the country. Given these facts and concerns, a Stay of
Execution will in no way prejudice the State.
B. Probability That The Court Will Grant The Writ, and Likelihood of Success
In his petition for a writ of certiorari, Mr. Wellons has detailed how Appellants
conduct violates his rights pursuant to the Constitution of the United States. Where, as
here, the petition demonstrates a likelihood of success in at least some respects a stay
should be granted. Bundy v. Wainwright, 808 F.2d 1410, 1421 (11th Cir. 1987). As his
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case involves issues that are debatable among jurists of reason; which a court could
resolve in a different manner]; and which involve questions [that] are adequate to
deserve encouragement to proceed further. Barefoot v. Estelle, 463 U.S. 880, 893 n. 4,
(1983) (citations omitted).
As the facts in Mr. Wellonss case present troubling and substantial constitutional
issues, there is a reasonable likelihood that this Court would grant certiorari and that he
would prevail before this Court.
CONCLUSION
Wherefore, Mr. Wellons respectfully requests an Order staying his execution
pending consideration of his petition for writ of certiorari to the United States Court of
Appeals for the Eleventh Circuit.
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Respectfully Submitted this 17 day of June, 2014.
th
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
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No. ___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections ,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
CERTIFICATE OF SERVICE
_____________________________
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I HEREBY CERTIFY that a true and correct copy of Marcus Wellonss MOTION
FOR A STAY OF EXECUTION are being furnished by United States mail, first-class
postage prepaid, to counsel for Respondents, Sabrina Graham, Assistant Attorney
General, 40 Capitol Square, SW, Atlanta, Georgia 30334-1300
This 17 day of June, 2014.
th
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
9