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***DEATH PENALTY CASE***

Execution Scheduled for April 20, 2017

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT


______________________________________________________________________________________________________________________

No. 17-1824
______________________________________________________________________________________________________________________

STACEY JOHNSON,
Plaintiff-Appellant,
v.
WENDY KELLEY, et al.,
Defendants-Appellees.
______________________________________________________________________________________________________________________________________________________________________________________________________________________________

On Appeal from the United States District Court


for the Eastern District of Arkansas (Hon. Kristine Baker)
________________________________________________________________________________________________________________________________________________________________________________________________________________________________

APPELLEES RESPONSE IN OPPOSITION TO APPELLANTS


MOTION TO STAY EXECUTION PENDING APPEAL
________________________________________________________________________________________________________________________________________________________________________________________________________________________________

LESLIE RUTLEDGE
Attorney General
LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI
Deputy Solicitor General
COLIN JORGENSEN
Senior Assistant Attorney General
JENNIFER L. MERRITT
Assistant Attorney General
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-2007
lee.rudofsky@arkansasag.gov

INTRODUCTION

This as-applied method-of-execution claimfiled just three days before

Appellant Stacey Johnsons scheduled executionis yet another example of the

piecemeal litigation and dilatory tactics displayed by Johnson and other death-row

inmates over the last two years since Arkansas adopted the three-drug lethal-

injection protocol upheld by the United States Supreme Court in Glossip v. Gross,

135 S. Ct. 2726 (2015). Appellant has a long (and all too often successful) history

of filing and dismissing claims to manipulate the judicial process and prevent

Arkansas from carrying out his just and lawful sentence. He has previously

repeatedly brought, nonsuited, and lost on the merits facial challenges to

Arkansass midazolam protocol. This case is just the latest execution-eve iteration

of those efforts. Appellant now claims that, due to his purportedly unique and

specific medical conditionswhich include hypertension, sleep apnea, shortness

of breath, and anginamidazolam will affect Mr. Johnson differently than an

average healthy inmate and will cause severe pain and serious harm to him. DE1

2 at 1 & 14. Appellant waited until the literal eleventh hour to assert his as-

applied claim and sought a preliminary injunction staying his immediate execution

so he could litigate that claim.

1
DE refers to the docket entry in the district court.
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Appellees promptly moved to dismiss the complaint and responded in

opposition to the preliminary-injunction motion. The State introduced evidence

establishing that Mr. Johnson has suffered from his medical conditions for years

and could have brought his as-applied method-of-execution claim much sooner but

intentionally declined to do so. On April 18, 2017, the district court found that

Appellants use of piecemeal litigation and dilatory tactics is a sufficient reason

to deny a stay and dismissed Mr. Johnsons complaint with prejudice. DE 17 at 4

(citing McGehee v. Hutchinson, Eighth Circuit Court of Appeals No. 17-1804, slip

op. at 2). That conclusion is well supported. This Court should likewise conclude

that Appellants latest stay request is nothing more than an attempt to prevent

Arkansas from carrying out Appellants execution decades after Appellant brutally

took the life of young mother Carol Heath. This Court should deny Appellants

request for a stay of execution pending appeal.

BACKGROUND

A. Appellant

In 1993, Stacey Johnson violently raped, beat, strangled, and sliced Carol

Heaths throat so deeply that Johnson cut one-fourth of an inch into her spine.

Heaths two young children, six-year-old Ashley and two-year-old Jonathan, were

at home during the murder and were left alone overnight with their mothers nude,

lifeless body lying in a pool of blood. This is Arkansass fifth attempt to secure

justice for Heath. His guiltand the justice of his sentenceis beyond dispute.

B. Prior Litigation

1. Arkansas Lethal-Injection Protocol.

In 2015, Arkansas adopted Act 1096, which: 1) codifies the three-drug

lethal-injection protocol upheld in Glossip as an alternative to a single-drug

barbiturate option that has not been used due to Arkansass inability to obtain a

suitable drug; 2) permits the Arkansas Department of Correction (ADC) to use

compounded drugs; and 3) ensures supplier confidentiality. Thereafter, ADC

adopted its current lethal-injection procedure. McGehee DE 2 at 66-71.

2. Williams v. Kelley

In April 2015, Johnson joined other death-row inmates in filing Williams v.

Kelley, a state-court action alleging that Arkansass execution protocol violates the

Eighth Amendment and Arkansass substantively identical cruelty clause. See

Circuit Court of Pulaski County, Arkansas, No. 60CV-15-1400. After Arkansas

removed that complaint to federal court, Johnson nonsuited. See No. 4:15-CV-206-

JM (DE 1, 2, 4). Johnson then filed amended complaints in state court raising only

state-law claims. See Kelley v. Johnson, 496 S.W.3d 346, 352 (Ark. 2016).

Following motion-to-dismiss briefing, Johnson nonsuited his claims a second time.

(DE 28-17.)

3. Johnson v. Kelley

While the Williams motion to dismiss was pending, Appellant filed

Johnson v. Kelley, No. 60CV-15-2921, in state court, alleging that Arkansass

three-drug protocol violated the Arkansas Constitutions ban on cruel-or-unusual

punishment. See Stacey Johnson, et al. v. Wendy Kelley, Circuit Court of Pulaski

County, Arkansas, No. 60CV-15-2921. In his complaint in the Johnson case,

Appellant affirmatively alleged that he voluntarily dismissed the federal case

without prejudice in order to return [his] causes of action to state court (where they

belong). Compl. in Johnson (June 29, 2015), Pulaski County, Ark., No. 60CV-

15-2921, 4 (emphasis added). He asserted only state constitutional challenges to

Act 1096, including challenges under the state ban on cruel-or-unusual punishment

as well as other state constitutional provisions that mirrored the earlier federal

claims.

Because Arkansas Governor Asa Hutchinson had set Appellants execution

date for November 2015, Appellant sought a stay pending resolution of his new

case. The Arkansas Supreme Court stayed the execution pending the resolution

of the litigation. McGehee DE2 28-19. Appellant then filed an amended complaint

claiming that Arkansass lethal-injection procedure violated Arkansass ban on

cruel or unusual punishment because, inter alia, midazolam would not sufficiently

anesthetize and because other provisions of the protocol gave rise to risks of harm

if not carried out properly. Appellant also alleged that the use of compounded

drugs would impose cruel and unusual punishment and suggested as alternative

execution methods, the firing squad, barbiturates, anesthetic gas, and opioid

overdoses. McGehee DE 28-18. Appellant in his amended complaint again made

crystal clear that he had voluntarily dismissed his federal constitutional claims in

order to return their causes of action to state court, where they belong. McGehee

DE 18, 4 (emphasis added).

Arkansas moved to dismiss, and the state trial court denied that motion.

The parties then filed cross-motions for summary judgment on the midazolam

claim, both seeking judgment as a matter of law on both Glossip prongs. But the

trial court denied the motions after finding that a fact issue existed for trial

regarding midazolams ability to anesthetize Appellant (the state trial court did not

consider the second Glossip prong regarding known and available alternatives).

The Arkansas Supreme Court reversed in toto and dismiss[ed] Appellants

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McGehee DE refers to docket entries in Appellants facial midazolam
challenge in McGehee v. Hutchinson, U.S. District Court for the Eastern District of
Arkansas, No. 4:17-cv-000179-KGB.
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claims because under Baze v. Rees, 553 U.S. 35 (2008), and Glossip v. Gross, 135

S. Ct. 2726 (2015), Appellant had failed to meet his burden of both pleading and

providing evidence that his alternative execution methods are available and readily

implementable. Kelley, 496 S.W.3d at 357-60. The United States Supreme Court

declined review. Johnson v. Kelley, 137 S. Ct. 1067 (2017).

Thus, Appellants midazolam claim was dismissed on the merits, the case

ended, and the stay dissolved. Nevertheless, Appellant attempted to file another

amended state-court complaint restating the same claims. McGehee DE 28-21.

The Arkansas Supreme Court responded by making clear that Appellants case had

ended. McGehee DE 28-22. Arkansas then moved to dismiss Appellants amended

complaint. The trial court granted that motion and held that the Arkansas Supreme

Court had dismissed the litigation, with prejudice[.] DE 28-23, at 5.

C. Procedural History

On February 27, 2017, Governor Hutchinson issued a death warrant to

Appellant for April 20, 2017. Governor Hutchinson also set seven other

executions on April 17, April 20, April 24, and April 27, 2017. Knowing that

Arkansass supply of midazolam expires at the end of April, and that the State has

no way to buy more, Appellant (along with his co-plaintiffs) then waited a month

to launch a legal avalanche designed to obtain stays of execution. As part of that

effort, Appellant has filed numerous cases in multiple forums. The Prisoners have
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successfully halted three executions as a result of those efforts, and the Arkansas

Supreme Court just issued a fourth staythis one for Appellantbased on his

last-minute request for postconviction DNA testing under Arkansas law (a claim

that the Arkansas courts have previously repeatedly rejected).

Appellant filed this 1983 case just two days ago, on April 17, 2017, and

asked for a preliminary injunction that would stay his execution on the ground that

there was insufficient time to fully resolve his as-applied midazolam claim. Later

that afternoon, a nearly unanimous en banc panel of this Court vacated the district

courts stay order in McGehee. In so doing, this Court focused on [t]he prisoners

long delay in pursuing their federal claim and explained that as a result, under

Supreme Court precedents, the district court should have applied a strong

equitable presumption against the grant of a stay. Slip Op. at 2. Applying that

principal, this Court recounted Appellants decision to voluntarily . . . forego [his]

federal claim in April 2015 and his decision to pursue only his corresponding

state constitutional claims. Id. at 3-4. The Court then explained that, while

Governor Hutchinson had scheduled Appellants execution just six days after the

Supreme Court denied certiorari in Johnson, Appellant had waited until only three

weeks before the first scheduled execution to bring his facial Eighth Amendment

claim. Id. Consequently, this Court concluded that, regardless of the merits of the

States other arguments, Appellants use of piecemeal litigation and dilatory

tactics is sufficient reason by itself to deny a stay. Id. at 4 (quoting Hill v.

McDonough, 547 U.S. 573, 584 (2004)). The record showed that Appellant could

have brought his 1983 facial method-of-execution claim much earlier and

intentionally declined to do so. Id. at 3.

On April 18, 2017, in light of this Courts decision in McGehee, the district

court issued a show-cause order in this as-applied case. DE 11. The district court

explained that as-applied challenges must overcome the same strong equitable

presumption against the grant of a stay when a claim could have been brought

earlier. DE 11 at 2 (citing Johnson v. Lombardi, 809 F.3d 388, 389 (8th Cir.

2015)). The district court noted that Appellant filed this action just three days

before his scheduled execution, did not allege that his health issues arose recently,

and that it appeared from the face of the complaint that Appellant could have

brought his claims far in advance of April 17, 2017. Id. The court ordered

Appellant to show cause why the court should not find, consistent with this Courts

decision in McGehee, that this action must be dismissed. Id.

Appellants response to the show-cause order made three arguments: (1) he

was not dilatory in bringing his complaint because an as-applied challenge does

not ripen until there is an execution date set; (2) Appellants conditions are fluid

and have gotten worse since he was last examined by prison physicians; and (3)

Appellant should be allowed to make a record because he plans to appeal to the

Supreme Court. DE 15. The district court rejected these arguments and dismissed

the complaint with prejudice. DE 17. In reaching that conclusion, the court noted

that Appellant was examined on March 23, 2017, by the same physician who

testified as a plaintiffs expert in McGehee and who signed the declaration that

Appellant now uses to support his as-applied claim. DE 17 at 2. Yet Appellant did

not file this claim until more than three weeks later. DE 17 at 2. The court

explained that, [e]ven assuming that Mr. Johnson is correct that his claim did not

become ripe until Governor Hutchinson set his execution date on February 27,

2017, and that his physical condition should be evaluated when his execution is

imminent, the Court finds that, consistent with and based upon the Eighth Circuits

decision in McGehee, Mr. Johnson was not diligent in bringing this action. Id. at

3. The court found that Appellant provided no good reason why his as applied

claim could not have been included in McGehee or been filed at the same time as

McGehee on March 27, 2017. Id. The court held that Mr. Johnson has split his

claims and has not been diligent in pursuing his as applied claims. Id. The court

concluded, Mr. Johnsons use of piecemeal litigation and dilatory tactics is a

sufficient reason to deny a stay. Id. at 4 (citing McGehee, No. 17-1804, slip op. at

2). The district court thus dismissed the action with prejudice and denied all

pending motions as moot. Id.

LEGAL STANDARDS

Appellant seeks a stay of execution pending resolution of his appeal. [A]

stay of execution is an equitable remedy. Johnson v. Lombardi, 809 F.3d 388,

390 (8th Cir. 2015). An inmate facing imminent execution is not afforded a stay

as a matter of right, and equity must be sensitive to the States strong interest in

enforcing its criminal judgments without undue interference from the federal

courts. Id. (quoting Hill, 547 U.S. at 584). Inmates seeking time to challenge a

method of execution must satisfy all of the requirements for a stay, including a

showing of a significant possibility of success on the merits. Id. In imminent

execution cases, a court considering a stay must also apply 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. Hill, 547 U.S. at 584 (quoting Nelson v. Campbell, 541 U.S. 637, 650

(2004)) (emphasis added).

This Court should deny Appellants request for a stay. As the district court

correctly held, Appellant could have brought his as-applied method-of-execution

claim much earlier and intentionally declined to do so, so there is a strong

equitable presumption against a stay. See McGehee, slip op. at 3. Moreover, as

this Court just held earlier this week in McGehee, Appellant has not and cannot

show a significant possibility of success on his claim that the method of execution

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used by Arkansas presents a risk that is sure or very likely to cause serious illness

and needless suffering or that Arkansas has access to a known and available

alternative method of execution. McGehee slip op. at 4 & 6. For these reasons, the

Court should deny the stay request.

ARGUMENT

I. Appellants use of piecemeal litigation and dilatory tactics is sufficient


reason by itself to deny a stay.

This Court should deny Appellants request for a stay for the same reasons

that it reversed the district courts grant of a stay in McGehee. Even if one

completely ignores the 2015/2016 state-court midazolam case, the record shows

that Appellant could have filed his as-applied challenge, at the very latest, on

March 27, 2017. He had a physical examination by his litigation expert on March

23, 2017, who diagnosed him with sleep apnea and other probable medical

conditions that purportedly will affect how the execution protocol works on him.

And Appellant then filed (along with 8 other prisoners) his facial midazolam claim

on March 27, 2017, in McGehee.

As the district court observed, Appellant has provided no reason for why he

failed to include his as-applied claim in McGehee or otherwise to assert it at or

around the same time. Instead, Appellant waited until only three days before his

scheduled execution to file this lawsuit. And now he asks this Court to stay his

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execution with less than 24 hours to go. It is obvious that Appellant has split his

claims and has not been diligent in pursuing his as-applied challenge. For this

reason alone, this Court should hold, as it did in McGehee, that Appellants use of

piecemeal litigation and dilatory tactics is sufficient reason by itself to deny a

stay. McGehee, slip op. at 4.

II. Appellant cannot show a significant possibility of success on the merits.

A. Appellants claim is barred by res judicata.

Appellant cannot prevail on his claim that using midazolam as the first drug

in a three-drug protocol constitutes cruel and unusual punishment as applied to him

because his claim is bared by res judicata. Federal courts cannot adjudicate

claims that have already been fully adjudicated in state court or that could have

been litigated in state court. Sparkman Learning Center v. Ark. Dept of Human

Servs., 775 F.3d 993, 998 (8th Cir. 2014); Jayel Corp. v. Cochran, 234 S.W.3d

278, 281 (Ark. 2006); see also 28 U.S.C. 1738. State law determines whether a

claim has been adjudicated. Sparkman Learning Ctr., 775 F.3d at 998.

Appellants as-applied midazolam claim is barred. The Arkansas Supreme

Court issued a final judgment resolving the merits of Appellants facial midazolam

claim almost a year ago in Johnson. In that case, the Arkansas Supreme Court did

not simply dismiss Appellants complaint. Rather, the court reversed the lower

courts decision in toto, including its denial of summary judgment on the


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midazolam claim on the ground that Appellant had failed to establish an available

alternative execution method. See Johnson, 496 S.W.3d at 355-59 (discussing

evidence); id. at 359 (no evidence that the proposed alternative drugs are available

to ADC for use in an execution). And that conclusion, as the state trial court later

concluded in granting a motion to dismiss an amended complaint that Appellant

filed after the Arkansas Supreme Courts decision, fully resolved the case on the

merits and dismissed the litigation, with prejudice[.] McGehee DE 28-23, 5.

Appellant could have brought his as-applied claim in Johnson but intentionally

chose not to.

Additionally, to the extent that there might be any doubt that Appellants

claims have been (or could have been) fully resolved on the merits, under Arkansas

law, the dismissal of Appellants claim in Johnson operated as a final adjudication

on the merits because that dismissal was actually the third dismissal of Appellants

midazolam claim. See, e.g., Ark. R. Civ. P. 41(b) (dismissal operates as an

adjudication on the merits where action has been previously dismissed, whether

voluntarily or involuntarily); Ballard Group, Inc. v. BP Lubricants USA, Inc., 436

S.W.3d 445, 456-57 (Ark. 2014). Indeed, as explained above, Appellant

previously nonsuited his federal midazolam challenge in Williams and an amended

complaint under that same case heading in state court. McGehee DE 28-17. And,

as discussed in more detail in the States motion to vacate the stay in McGehee, all

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of the other elements of res judicata are satisfied, as well. As a result, the Court

should conclude that Appellant is not likely to succeed on the merits of his as-

applied midazolam claim because it is barred by res judicata.

B. Collateral estoppel bars Appellants claim.

Collateral estoppel bars parties from relitigating previously resolved issues.

In re Scarborough, 171 F.3d 638 (8th Cir. 1999). State law determines whether

that doctrine applies, and in Arkansas, it applies to previously litigated issues that

were essential toand resolved bythe previous courts final judgment. State

Office of Child Support Enforcement v. Willis, 59 S.W.3d 438, 444 (Ark. 2001);

see Baker Elec. Coop., Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir. 1994). That

doctrine applies here because in Johnson, Appellant arguedas herethat use of

midazolam in executions is sure or very likely to cause serious illness and

needless suffering and that there are alternative execution methods that are

feasible, readily implemented, and in fact significantly reduce a substantial risk of

severe pain. Glossip, 135 S. Ct. at 2737. Indeed, those claims were addressed in

dismissal briefing and summary-judgment motions in the state court and, as

discussed above, they were resolved by the Arkansas Supreme Courts conclusion

that Appellant had not adduced evidence on summary judgment demonstrating that

Arkansas has access to a known, feasible, readily implemented, and available

alternative method of execution.


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Appellant cannot avoid collateral estoppel simply by pointing to new factual

allegations because collateral estoppel bars relitigation of an ultimate fact issue

i.e., whether the use of midazolam in lethal injection is cruel and unusualwhen

that issue was determined by a final judgment in a prior proceeding. E.g.,

Lundquist v. Rice Memorial Hospital, 121 Fed. Appx. 664, 668-69 (8th Cir. 2005).

Thus, collateral estoppel bars Appellants attempt to relitigate his midazolam

claim.

C. Appellant cannot succeed on the merits of his claim that midazolam is


sure or very likely to cause needless suffering.

This Court already ruled in McGehee that Appellant did not show, after

discovery and a four-day preliminary-injunction hearing, a reasonable likelihood of

success on the first Glossip prong. The record in this case adds nothing of

substance that would change the Courts conclusion. Appellant has not alleged

facts to support a conclusionnor can he provethat a 500-mg IV injection of

midazolam will surely or very likely fail to anesthetize him because he suffers

from a number of fairly common medical conditions. See DE 2 1. His

allegations are speculative and cannot support a valid Eighth Amendment claim.

See McGehee, slip op. at 5-6 (explaining that the mere possibility of harm does not

justify a stay). For example, Appellant makes the conclusory allegation that his

large size makes it more likely that the execution will fail[.] DE 2 24. He

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similarly alleges that his pre-existing health conditions make it more likely that he

will experience respiratory distress during the lethal-injection procedure. DE 2

24. These allegations plead alleged increased risks of harm to Appellant; they do

not show that the protocol is sure or very likely to cause serious illness and

needless suffering as required by Glossip and McGehee.

Regardless, and in any event, this Court has repeatedly explained that the

Eighth Amendment does not warrant a general supervisory role for the courts to

oversee executions, the Eighth Amendment does not impose a best-practices

requirement, and the Eighth Amendment does not recognize a claim arising out of

speculative risk that an accident or maladministration of execution protocol might

occur. See Zink v. Lombardi, 783 F.3d 1089, 1100-03 (8th Cir. 2015); Clemons v.

Crawford, 585 F.3d 1119, 1125-27 (8th Cir. 2009); Taylor v. Crawford, 487 F.3d

1072, 1080 (8th Cir. 2007).

Moreover, the evidence adduced in McGehee actually shows that, if

anything, midazolam will be a more effective anesthetic agent to Mr. Johnson

because of his medical conditions. See McGehee DE 28-6 (FDA-approved

package insert for midazolam explaining that lower doses are needed to anesthetize

older or sick patients as well as those taking narcotics or other central nervous

system depressants); McGehee Defs. PI Hrg Ex. 26 (journal article demonstrating

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that 32 subjects reached a state of general anesthesia under normal clinical doses of

midazolam).

As shown, binding precedent forecloses Appellants speculative Eighth-

Amendment challenge against Arkansass protocol as applied to him. A stay is not

warranted.

D. Appellant cannot establish a readily implementable alternative execution


method.

To obtain a stay, Appellant must also show a significant possibility of

success on his claim that an alternative execution method is feasible and readily

implemented that would significantly reduce a substantial risk of severe pain. See

McGehee, slip op. at 6-7. Johnson alleges in his complaint that he is not required

to plead an alternative in his as-applied challenge. He is wrong as a matter of law.

This Court clearly holds that every method-of-execution plaintiff must plead an

available alternative method of execution that would significantly reduce a

substantial risk of severe pain. See Bucklew v. Lombardi, 783 F.3d 1120, 1128

(8th Cir. 2015) (en banc) (noting in an as-applied challenge that, at the earliest

possible time, [plaintiff] must identify a feasible, readily implemented alternative

procedure that will significantly reduce a substantial risk of severe pain and that the

State refuses to adopt); Johnson v. Lombardi, 809 F.3d 388, 390 (8th Cir. 2015)

(applying Baze/Glossip test in as-applied challenge). Implicitly recognizing this,

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Appellant goes on to allege that pentobarbital and the firing squad are available

alternatives. But this Court has already rejected those alternatives as too

uncertain to satisfy the rigorous standard under the Eighth Amendment. Id. at 7.

For this reason, as well, Appellant cannot obtain a stay.

CONCLUSION

There is a strong equitable presumption against a stay in this last-ditch effort

to halt a lawful execution, and Appellant cannot overcome that presumption

because he has not and cannot show a significant possibility of success on the

merits of his midazolam claim. A stay in this case will make it impossible for

Arkansas to carry out Appellants lawful execution because Arkansass supply of

midazolam (the critical component of Arkansass lethal-injection protocol) expires

in 12 days. Appellantknowing that factwaited until the very eve of his

execution to bring this action and seek a stay. Indeed, as Appellants repeated

challenges (and voluntary dismissals) of his midazolam claim demonstrate,

Appellant did not suddenly discover his midazolam claim. And equity should not

permit him to deliberately manipulate the judicial process to again evade justice.

For each and all of these reasons, the Court should deny Appellants motion for a

stay of execution pending appeal.

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Respectfully submitted,

LESLIE RUTLEDGE
Attorney General

LEE RUDOFSKY
Solicitor General
NICHOLAS J. BRONNI
Deputy Solicitor General
JENNIFER MERRITT
Assistant Attorney General
/s/ Jennifer L. Merritt
OFFICE OF THE ARKANSAS
ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
Lee.Rudofsky@ArkansasAG.gov
Nicholas.Bronni@ArkansasAG.gov
Jennifer.Merritt@ArkansasAG.gov

Attorneys for Appellees

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CERTIFICATE OF SERVICE

I, Jennifer L. Merritt, hereby certify that on April 19, 2017, I filed the

foregoing with the Clerk of the Court via CM/ECF, which shall send notification

of the filing to any participants. I also certify that I provided a copy of the

foregoing via email to the following:

Jeff Rosenzweig
jrosenzweig@att.net

/s/ Jennifer L. Merritt


Jennifer L. Merritt

CERTIFICATE OF COMPLIANCE

Pursuant to Rules 27(d)(2) and 32(c)(1) of the Federal Rules of Appellate

Procedure, the undersigned hereby states that the applicable portions of this

response contain 4,067 words in proportionally sized 14-point Times New Roman

font. The brief was prepared in Microsoft Office Word 2010. The electronic

version of the brief has been scanned for viruses and is virus-free.

/s/ Jennifer L. Merritt


Jennifer L. Merritt

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