Case 2:19-cv-00088-WKW-CSC Document 21 Filed 02/01/19 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

DOMINEQUE HAKIM )
MARCELLE RAY, )
)
Plaintiff, )
)
v. ) CASE NO. 2:19-CV-88-WKW
) [WO]
JEFFERSON DUNN, Commissioner, )
Alabama Department of Corrections, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Domineque Hakim Marcelle Ray is set to be executed on February 7, 2019 —

punishment for robbing, raping, and murdering fifteen-year-old Tiffany Harville.

This case is not about whether Ray may be executed; other courts have affirmed his

death sentence.1 This case is instead about when the execution will take place, who

will be inside the execution chamber, and how the execution will be carried out. To

be specific, Ray seeks an eleventh-hour stay of his execution so that the court can

resolve three issues. The first is whether Ray may have a private spiritual advisor

1
Ray v. State, 809 So. 2d 875, 891 (Ala. Crim. App. 2001) (holding Ray’s “convictions
and his sentence of death are proper”), cert. denied, 809 So. 2d 891 (Ala. 2001), cert. denied, 534
U.S. 1142 (2002); Ray v. State, 80 So. 3d 965, 997 (Ala. Crim. App. 2011) (denying state post-
conviction relief), cert. denied, 80 So. 3d 997 (Ala. 2011); Ray v. Thomas, No. 11-cv-543, 2013
WL 5423816, at *61 (S.D. Ala. Sept. 27, 2013) (denying petition for writ of habeas corpus), aff’d
sub nom., Ray v. Ala. Dep’t of Corr., 809 F.3d 1202 (11th Cir. 2016), cert. denied, 137 S. Ct. 417
(2016), reh’g denied, 137 S. Ct. 844 (2017).
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inside the execution chamber during his execution. The second is whether Ray may

exclude a state chaplain from the execution chamber. The third is whether Ray may

elect to be executed by nitrogen hypoxia instead of by lethal injection.

It is undeniably difficult for an inmate to show that he is entitled to a stay.

Among other things, he must show a substantial likelihood of success on the merits

and that a stay would not harm the public interest. DeYoung v. Owens, 646 F.3d

1319, 1324 (11th Cir. 2011). This bar is even higher when an inmate waits too long

to request a stay. In fact, courts 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 v. McDonough,

547 U.S. 573, 584 (2006) (quoting Nelson v. Campbell, 541 U.S. 637, 650 (2004)).

Ray could have brought this case long before he did, and he has not overcome

the resulting “strong equitable presumption” against a stay. Ray also fails to show

that he has a substantial likelihood of success on the merits and that a stay would not

harm the public interest. As a result, Ray is not entitled to a stay of execution. The

court will enter a consent order requiring that the state prison chaplain not be in the

execution chamber during Ray’s execution. But the court will not order the State to

let Ray’s private spiritual advisor be in the execution chamber.2 Nor will it order the

2
Jefferson Dunn, Commissioner of the Alabama Department of Corrections, is technically
the named defendant. But because Commissioner Dunn is being sued in his official capacity, the
court refers to him as “the State.”

2
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State to execute Ray by nitrogen hypoxia.

I. JURISDICTION AND VENUE

The court has subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 1343.

The parties do not contest personal jurisdiction or venue.

II. BACKGROUND

A. Ray is set to be executed for the 1995 murder of Tiffany Harville.

In 1995, Ray robbed, raped, and murdered fifteen-year-old Tiffany Harville.

He had previously murdered two teenaged brothers. He was convicted in Dallas

County Circuit Court of both capital murder committed during first-degree rape and

capital murder committed during first-degree robbery. The jury recommended a

death sentence by a vote of eleven to one, and the judge sentenced Ray to death. The

Alabama Court of Criminal Appeals affirmed on direct appeal. Ray v. State, 809 So.

2d 875, 891 (Ala. Crim. App. 2001), cert. denied, 809 So. 2d 891 (Ala. 2001), cert.

denied, 534 U.S. 1142 (2002).

After his direct appeal, Ray collaterally attacked his conviction in state court.

The Dallas County Circuit Court denied Ray’s petition after a three-day evidentiary

hearing. The Alabama Court of Criminal Appeals affirmed. Ray v. State, 80 So. 3d

965, 997 (Ala. Crim. App. 2011), cert. denied, 80 So. 3d 997 (Ala. 2011).

Ray then filed a federal habeas petition under 28 U.S.C. § 2254. The Southern

District of Alabama denied Ray’s petition in its entirety. Ray v. Thomas, No. 11-cv-

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543, 2013 WL 5423816, at *61 (S.D. Ala. Sept. 27, 2013). It also denied a certificate

of appealability, id., and a motion to alter or amend the judgment, Ray v. Thomas,

No. 11-cv-543, 2013 WL 5979757, at *9 (S.D. Ala. Nov. 12, 2013). The Eleventh

Circuit affirmed. Ray v. Ala. Dep’t of Corr., 809 F.3d 1202, 1211 (11th Cir. 2016),

cert. denied, 137 S. Ct. 417 (2016), reh’g denied, 137 S. Ct. 844 (2017).

On November 6, 2018, the Supreme Court of Alabama set February 7, 2019,

as Ray’s execution date. Ray v. Thomas, No. 11-cv-543, Doc. # 50 (S.D. Ala. filed

Nov. 6, 2018). He will be executed at the Holman Correctional Facility in Atmore,

Alabama. See Ala. Code § 15-18-82(b).

B. The State protocol for executions

A death-row inmate in Alabama has religious rights during the days and hours

approaching his execution. Executions are on Thursdays, starting at 6:00 p.m. An

inmate may visit with family, friends, attorneys, and spiritual advisors of his choice

on the Monday, Tuesday, and Wednesday before his execution. He may also visit

with family, friends, attorneys, and spiritual advisors of his choice until 4:30 p.m.

on the day of execution. These are all “contact visits,” meaning no barrier is between

the inmate and his guests.

When goodbyes are said at 4:30 p.m. on Thursday, the inmate is taken to a

holding cell next to the death chamber. A private spiritual advisor may accompany

the inmate to the holding cell to await the final walk to the chamber. But the State

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does not let the private spiritual advisor accompany the inmate into the execution

chamber itself. Instead, the advisor must stay a few feet behind the glass wall of the

chamber, in the viewing area reserved for the inmate’s family and friends. There is

no contact between the inmate and those in the viewing area.

A state-employed chaplain is a member of the execution team and is usually

in the death chamber during executions. The current chaplain is a Christian. The

state has never allowed an inmate’s private spiritual advisor to be inside the chamber

during an execution, regardless of the private spiritual advisor’s religious affiliation.

(Doc. # 20, at 12.)

By default, an inmate “shall be executed by lethal injection.” Ala. Code § 15-

18-82.1(a). An inmate has “one opportunity to elect that his or her death sentence

be executed by . . . nitrogen hypoxia.” Id. § 15-18-82.1(b). But to be executed by

nitrogen hypoxia, Ray had to request it in writing by July 1, 2018. See id. § 15-18-

82.1(b)(2). He did not elect nitrogen hypoxia until January 29, 2019. (Doc. # 12, at

8, 17.) Because Ray made his election several months too late, the State denied his

request.

C. Ray filed this action ten days before his scheduled execution date.

Ray is a devout Muslim. According to his attorneys, he has been a Muslim

since at least 2006. (Doc. # 10.) Ray has had contact visits with a Muslim spiritual

advisor (an imam) during his incarceration, including a contact visit this week. (Doc.

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# 1, at 7; Doc. # 12, at 7.)

Because Ray is Muslim, he objects to the presence of a Christian chaplain in

the death chamber during his execution. The State agrees not to require its chaplain

to be in the chamber. Ray, however, requests more accommodations than that. He

wants his private spiritual advisor with him in the death chamber during the

execution. He also wants to be executed by nitrogen hypoxia instead of by lethal

injection. (Doc. # 1, at 8–12; Doc. # 12, at 14–15.) The State has denied both

requests. Ray claims the State’s denials substantially burden his religious exercise,

that the State lacks a compelling interest, and that the State could further any interests

it does have in a less-restrictive manner.

On January 28, 2019, Ray sued the State under the Religious Land Use and

Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc et seq., and

the Establishment Clause of First Amendment. (Doc. # 1.) He filed an Emergency

Motion for Stay of Execution on the same day. (Doc. # 4.) On January 31, 2019,

the State responded to Ray’s initial complaint (Doc. # 11) and Ray filed an amended

complaint (Doc. # 12). The court also held a hearing on January 31.

III. DISCUSSION

Although the Supreme Court has held that a death-row inmate may challenge

the constitutionality of execution methods through a civil rights action, a stay “is not

available as a matter of right,” even if execution is imminent. Hill, 547 U.S. at 584.

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Rather, “a stay of execution is an equitable remedy,” and “equity must be sensitive

to the State’s strong interest in enforcing its criminal judgments without undue

interference from the federal courts.” Id.; cf. Thompson v. Wainwright, 714 F.2d

1495, 1506 (11th Cir. 1983) (“Each delay, for its span, is a commutation of a death

sentence to one of imprisonment.”). Crime victims also “have an important interest

in the timely enforcement of a sentence.” Hill, 547 U.S. at 584.

A motion for a stay filed by a death-row inmate who challenges the method

of his execution is treated the same as any other motion for a stay. Before a court

may issue a stay, the inmate must show that: “(1) he has a substantial likelihood of

success on the merits; (2) he will suffer irreparable injury unless the injunction

issues; (3) the stay would not substantially harm the other litigant; and (4) if issued,

the injunction would not be adverse to the public interest.” DeYoung, 646 F.3d at

1324 (quoting Powell v. Thomas, 641 F.3d 1255, 1257 (11th Cir. 2011)); see Schiavo

ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005). The inmate

must, “by a clear showing,” carry the burden of persuasion on all four requirements.

Hill, 547 U.S. at 584; Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam).

Finally, when a motion for a stay of execution is filed on the eve of execution,

“the extent to which the inmate has delayed unnecessarily in bringing the claim”

must be considered. Nelson, 541 U.S. at 649; see Grayson v. Allen, 491 F.3d 1318,

1322 (11th Cir. 2007) (“The equitable principles at issue when inmates facing

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imminent execution delay in raising their § 1983 method-of-execution challenges

are equally applicable to requests for both stays and injunctive relief.”). A “strong

equitable presumption” applies “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, 541 U.S. at 650); see also

Gomez v. U.S. Dist. Ct. for N. Dist. of Calif., 503 U.S. 653, 654 (1992) (per curiam)

(noting the “last-minute nature of an application” or an “attempt at manipulation” of

the judicial process may warrant the denial of a stay).3

Based on these principles, a stay of execution is not warranted. Ray is guilty

of inexcusable delay, and he has not surmounted the “strong equitable presumption”

against granting a stay. Moreover, Ray has not shown he has a substantial likelihood

of success on the merits and that a stay would not harm the State’s interests.

A. Ray unduly delayed bringing this action.

Ray has been a death-row inmate at Holman Correctional Facility since 1999.

Since Ray has been confined at Holman for more than nineteen years, he reasonably

should have learned that the State allows only members of the execution team, which

3
This equitable presumption has been previously applied in § 1983 method-of-execution
cases, but apparently it has not yet been applied in RLUIPA cases. That is irrelevant. Both § 1983
and RLUIPA are civil rights laws. In fact, § 1983 protects constitutional rights, while RULIPA
protects a right arising out of the Constitution but amplified by Congress. If the equitable
presumption applies when constitutional rights are on the line, surely it applies when statutory
rights are at issue. The equitable presumption also arises from the nature of the relief sought. (He
who seeks equity must do equity.) It does not matter why the inmate wants an stay of execution
so much as that he wants a stay of execution.

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previously has included a state-employed chaplain, inside the execution chamber.

Indeed, it was the state-employed chaplain who facilitated Ray’s involvement with

an imam for spiritual advice regarding his impending execution. Assuming that Ray

“has been a committed Muslim since at least 2006” (Doc. # 10, at 1), and it being

clear that Ray has had the assistance of legal counsel since at least 2003. Ray has

had ample opportunity in the past twelve years to seek a religious exemption, instead

of waiting until the eleventh hour to do so.

Once the denial of his federal habeas petition became final in 2017, Ray knew

(or should have known) that the execution clock had started ticking. Yet there is no

indication that Ray took any action for over two years to ensure that the State would

honor his desire for a private spiritual advisor to be in the execution chamber with

him. On November 6, 2018, the Alabama Supreme Court set his execution date for

February 7, 2019. Even then, Ray sat silent, doing nothing for more than two

months, waiting until ten days prior to his execution before filing an action.

In short, Ray has been dilatory in filing this action. He has shown no just or

equitable reason for his delay, which cuts against a stay of execution. His complaint

came “too late to avoid the inevitable need for a stay of execution,” so a stay is not

granted. Williams v. Allen, 496 F.3d 1210, 1213 (11th Cir. 2007) (affirming denial

of stay when inmate waited to sue until the State requested an execution date); see

also, e.g., Grayson, 491 F.3d at 1321, 1325 (affirming denial of stay when inmate

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sued before execution date was set); Henyard v. Secretary, 543 F.3d 644, 647–49

(11th Cir. 2008) (affirming denial of stay when inmate waited months to sue).

B. Ray has not shown a substantial likelihood of success on the merits.

Under RLUIPA, the State cannot substantially burden Ray’s sincere religious

exercise unless that burden is the least restrictive means of furthering a compelling

governmental interest:

No government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution . . . even
if the burden results from a rule of general applicability, unless the
government demonstrates that imposition of the burden on that
person —

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling

governmental interest.

42 U.S.C. § 2000cc-1(a).

As the text of statute reveals, RLUIPA uses a burden-shifting framework. Ray

bears the initial burden of proving that the State’s policy imposes a substantial

burden on religious exercise. The burden then shifts to the State to show that its

policy furthers a compelling state interest and that the State cannot further its interest

without burdening religious exercise. Holt v. Hobbs, 135 S. Ct. 853, 862–64 (2015).

But to obtain a stay of execution, Ray must establish that he has a substantial

likelihood of prevailing on the merits of his RLUIPA claim. That means Ray must

show that it is substantially likely that the State cannot justify its policies. In other

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words, it is not enough for Ray to show the existence of a substantial burden; he

must show it is substantially likely that the State would lose if this case went to trial.

Ray has not done so for any of his claims.

1. Requiring the presence of a private spiritual advisor

Under the State’s policy, Ray cannot bring his private spiritual advisor with

him into the execution chamber. Ray claims that RLUIPA entitles him to have a

private spiritual advisor inside the execution chamber during his execution. But it

is not substantially likely that Ray is correct.

First, Ray has only made a conclusory allegation that the State is imposing a

substantial burden. Of course, RLUIPA protects “any exercise of religion, whether

or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-

5(7)(A). But to be a substantial burden, a policy “must place more than an

inconvenience on religious exercise.” Midrash Sephardi, Inc. v. Town of Surfside,

366 F.3d 1214, 1227 (11th Cir. 2004.) The burden must be “akin to significant

pressure which directly coerces” Ray into changing his behavior. Id. That is, it must

“significantly hamper” his religious exercise. Davila v. Gladden, 777 F.3d 1198,

1205 (11th Cir. 2015) (cleaned up). Ray makes no serious attempt to explain why

the State’s policy imposes such a burden. He only vaguely complains of not “having

his spiritual advisor present” with him during the execution. (Doc. # 12, at 12.) But

the State has accommodated Ray’s religious exercise by allowing unfettered spiritual

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counseling until the moment Ray steps into the execution chamber.

Second, Ray has not shown that it is substantially likely that the State lacks a

compelling interest or that the State could use a less-restrictive means of furthering

its interest. The State has compelling interests “of the highest order” in maintaining

the solemnity, safety, and security of Ray’s execution. Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (quoting McDaniel v. Paty,

435 U.S. 618, 628 (1978)). Indeed, the State has a “moral obligation to carry out

executions with the degree of seriousness and respect that the state-administered

termination of human life demands.” Jackson v. Danberg, 594 F.3d 210, 230 (3d

Cir. 2010). The right of a state to take the life of a citizen cannot be pegged as any

ordinary power. It is extraordinary, simultaneously touching the philosophical

underpinnings of corporate power over individuals and the metaphysical

consequences of its exercise. Comparisons to the growth of beards in prison, or the

use of sweat lodges for religious exercise, or the presence of public prayer (or not)

at a football game are general at best, and necessarily weak. Those questions, while

of the same kind, are of infinitely smaller consequence. When weighing the State’s

and inmate’s interests, it is the scales of consequence, not the scales of kind, that

must judge the interests.4

4
To be sure, the mere incantation of a compelling interest by the State is not an automatic
talisman to defeat the interest of an inmate. Holt, 135 S. Ct. at 863–64. But the court has carefully
considered and balanced those interests; it has not deferred to the State.

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Ray has not shown that it is substantially likely that the State could further its

interest while allowing untrained, “free world” spiritual advisors be in the death

chamber. Instead, based on the record, it appears there is no less-restrictive means

of furthering the State’s interests. The State’s interests in solemnity, safety, and

security are so strong that the State cannot permit even a slight chance of interference

with an execution. Though a state chaplain is usually in the death chamber, he is

also a trained member of the execution team. He has witnessed dozens of executions

and trained on how to respond if something goes wrong. If the chaplain disobeys

orders, he will face disciplinary action. (Doc. # 20, at 15–16.) In contrast, Ray’s

private spiritual advisor is untrained, inexperienced, and outside the State’s control.

Allowing a private spiritual advisor in the execution chamber would also double the

number of people (other than members of the execution team) that the State would

have to account for in the event of an emergency: the inmate and his private spiritual

advisor. This not only burdens the State’s interest, but it places Ray himself at risk.

It is not substantially likely that a private spiritual advisor could overcome these

obstacles in a way that did not harm the State’s interests.5 Ray has shown no

authority otherwise.

5
It would be impossible to overcome them in one week — yet another reason Ray should
have brought this case earlier.

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2. Excluding the state chaplain

In Claim Two of his complaint, Ray claims that it violates RLUIPA to require

a Christian chaplain be inside the execution chamber during his execution. In Claim

Three, Ray asserts that requiring the presence of a Christian chaplain in the chamber

violates the Establishment Clause. (Doc. # 1, at 9–10; Doc. # 12, at 12–13.) Ray

stated in both his original and amended complaint that Claim Three “will be moot if

[he] prevails on Claims One and / or Two.” (Doc. # 12, at 13 n.6 (emphasis added);

see also Doc. # 1, at 10 n.4.)

The State, through counsel, has represented both in writing and in open court

that it will “waive the presence of the Holman chaplain in the execution chamber,”

thus conceding Claim Two to Ray. (Doc. # 11, at 15; see also Doc. # 20, at 5–6.)

By Ray’s own admission, this concession moots Claim Three as well. When the

State took Ray at his word and asserted that its concession mooted Claim Three, Ray

resisted, arguing that because the state was free to resume requiring the chaplain’s

presence in the execution chamber, the voluntary cessation-exception to the

mootness doctrine applies. (See Doc. # 13, at 2–3 (citing Rich v. Secretary, 716 F.3d

525, 532 (11th Cir. 2013).) But this case concerns a one-time event — Ray’s

execution — so there is no danger that the State will repeat its conduct with respect

to Ray. And since Ray did not bring this case on behalf of anyone other than himself

(see Doc. # 1, at 11–12; Doc. # 12, at 15), there remains no Establishment Clause

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claim for the court to decide.6

3. Nitrogen-hypoxia election

Ray has not shown a substantial likelihood of success on the merits of his final

claim. An amendment to Alabama Code § 15-18-82.1(b), effective June 1, 2018,

allows a death-row inmate “one opportunity to elect” nitrogen hypoxia, as opposed

to lethal injection, as the means of carrying out his death sentence. But that election

has time limits. Ray knew that he must have submitted a written nitrogen-hypoxia

election within thirty days of June 1, 2018. See Ala. Code 15-18-82.1(b)(2). Dozens

of other death-row inmates at Holman did so. (Doc. # 12, at 8.)

Ray does not argue that his nitrogen-hypoxia election (which came on January

29, 2019, one day after this suit was filed) was timely. (Doc. # 20, at 34.) Instead,

he claims the State’s observance of the statutory time limit and its denial of his late

election substantially burden his religious exercise. Ray’s explanation for his

tardiness is that when the nitrogen-hypoxia amendments came into effect, his

religious beliefs prohibited him from electing how he would die. Making such an

election, he says, would be like aiding in a suicide.7 Now, “having consulted with

6
There are no allegations supporting Ray’s standing to bring an Establishment Clause
claim independent of the alleged injury that is now moot — i.e., a state chaplain’s presence in
Ray’s execution chamber. See, e.g., Flast v. Cohen, 392 U.S. 83, 102 (1968) (defining the narrow
grounds for taxpayer standing in Establishment Clause challenges to government actions).

7
Ray says the same reason led him to refuse to participate in a challenge to the lethal-
injection protocol brought by other death-row inmates. Such a challenge to the execution method
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an imam,” he wishes to elect to die by nitrogen hypoxia, a request the State has

denied. (Doc. # 12, at 9.)

Claim Four lacks any merit. RLUIPA requires Ray’s beliefs to be sincere and

for the exercise of those beliefs to be substantially burdened by state action. The

State’s denial of Ray’s untimely election places no substantial burden on the exercise

of his religious beliefs. The State has issued a valid death warrant against Ray.

Whether his sentence is carried out by lethal injection or nitrogen hypoxia, there is

no claim that either method violates Ray’s religious beliefs. There is no “Hobson’s

choice where the only realistic possible course of action available to [Ray] trenches

on sincere religious exercise.” Yellowbear v. Lampert, 741 F.3d 48, 55 (10th Cir.

2014) (Gorsuch, J.). The only claim is that the State’s denial of Ray’s belated request

burdens the exercise of a previously held religious belief — a belief that Ray

apparently does not hold anymore, as shown by the fact he is now trying to make an

election.8

In the end, the State’s denial is only a burden to Ray because Ray’s previous

religious views kept him from acting on his personal preference that he be executed

requires the plaintiff to plead an alternative method of execution. See generally Glossip v. Gross,
135 S. Ct. 2726 (2015).

8
Ray’s written “Election Concerning Method of Execution” says he made his untimely
election “under duress and by force due to my impending execution.” (Doc. # 12, at 17.) That is
an admission that his change of heart is hardly motivated by a sincere religious belief.

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by nitrogen hypoxia — a preference he does not claim is grounded in any religious

belief. While Ray has a right to be free from unjustified burdens on his religious

exercise, he has no right to his preferred execution method — at least not without a

timely election under Alabama law.9 Because Ray does not claim that the State’s

denial of his untimely nitrogen-hypoxia election burdens any religious beliefs he

currently holds, and because he does not claim either execution method offends his

religious beliefs, Ray has not shown a substantial likelihood of the merits on Claim

Four.

C. Irreparable Injury

If the stay of execution is denied, Ray’s execution will occur as scheduled.

Note, however, that the fact that Ray will die by execution is not itself a cognizable

constitutional injury. See Baze v. Rees, 553 U.S. 35, 47 (2008) (noting the “settled”

principle “that capital punishment is constitutional”).

D. Relative Harms to the Parties and the Public Interest

The State has a “significant interest in meting out a sentence of death in a

timely fashion.” Nelson, 541 U.S. at 650. Crime victims also have an interest in the

timely enforcement of a sentence. Hill, 547 U.S. at 584. To be sure, Alabama has

an interest in protecting the freedom of religion. See, e.g., Ala. Const. art. I, § 3.01

9
A change in method of execution at this late hour is also likely to disrupt the process of
preparing for Ray’s execution and require a stay of execution.

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(Alabama Religious Freedom Amendment). But Ray has not shown a substantial

likelihood of success on the merits of his religious objections. To inhibit the interest

in finality without a showing of a substantial likelihood of success would do strong

injustice to the “powerful and legitimate interest in punishing the guilty, an interest

shared by the State and the victims of crime alike.” Calderon v. Thompson, 523 U.S.

538, 556 (1998). Thus, the balance of harms and the public interest weigh against a

stay of execution.

IV. CONCLUSION

Under these circumstances, it is ORDERED that:

1. Commissioner Jefferson Dunn shall ensure that the chaplain of the

Holman Correctional Facility is not present in the execution chamber during Ray’s

execution. Commissioner Dunn shall also ensure that the chaplain cannot be seen

by Ray during the execution.

2. Ray’s motion for appointment of counsel (Doc. # 3) is GRANTED.

3. Ray’s emergency motion to stay execution (Doc. # 4) is DENIED.

4. Claims Two and Three of Ray’s complaint are DISMISSED.

5. There being no just reason for delay, this Order is final and appealable

as to claims resolved and injunctive relief denied. Fed. R. Civ. P. 54(b).

DONE this 1st day of February, 2019.

/s/ W. Keith Watkins

UNITED STATES DISTRICT JUDGE

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A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov
Effective on December 1, 2013, the fee to file an appeal is $505.00

CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited
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(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Final orders and
judgments of district courts, or final orders of bankruptcy courts which have been
appealed to and fully resolved by a district court under 28 U.S.C. § 158, generally
are appealable. A final decision is one that “ends the litigation on the merits and
leaves nothing for the court to do but execute the judgment.” Pitney Bowes, Inc.
v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983) (citing Catlin v. United States,
324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945)). A magistrate judge’s
report and recommendation is not final and appealable until judgment thereon is
entered by a district court judge. 28 U.S.C. § 636(b); Perez-Priego v. Alachua
County Clerk of Court, 148 F.3d 1272 (11th Cir. 1998). However, under 28
U.S.C. § 636(c)(3), the Courts of Appeals have jurisdiction over an appeal from a
final judgment entered by a magistrate judge, but only if the parties consented to
the magistrate’s jurisdiction. McNab v. J & J Marine, Inc., 240 F.3d 1326, 1327-
28 (11th Cir. 2001).

(b) In cases involving multiple parties or multiple claims, a judgment as to fewer

than all parties or all claims is not a final, appealable decision unless the district
court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b).
Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which
resolves all issues except matters, such as attorneys’ fees and costs, that are
collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson
& Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988);
LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. § 1292(a): Under this section, appeals are
permitted from the following types of orders:
i. Orders granting, continuing, modifying, refusing or dissolving injunctions, or
refusing to dissolve or modify injunctions; However, interlocutory appeals
from orders denying temporary restraining orders are not permitted.
McDougald v. Jenson, 786 F.2d 1465, 1472-73 (11th Cir. 1986);
ii. Orders appointing receivers or refusing to wind up receiverships; and
iii. Orders determining the rights and liabilities of parties in admiralty cases.

(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The

certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition
for permission to appeal is filed in the Court of Appeals. The district court’s
denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93
 Case 2:19-cv-00088-WKW-CSC Document 21-1 Filed 02/01/19 Page 2 of 3

L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine
Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel
Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P.
4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements
set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after
the order or judgment appealed from is entered. However, if the United States or
an officer or agency thereof is a party, the notice of appeal must be filed in the
district court within 60 days after such entry. THE NOTICE MUST BE
RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN
THE LAST DAY OF THE APPEAL PERIOD – no additional days are
provided for mailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other
party may file a notice of appeal within 14 days after the date when the first notice
was filed, or within the time otherwise prescribed by this Rule 4(a), whichever
period ends later.”

(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court
under the Federal Rules of Civil Procedure of a type specified in this rule, the
time for appeal for all parties runs from the date of entry of the order disposing of
the last such timely filed motion.

(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the
district court may extend or reopen the time to file a notice of appeal. Under Rule
4(a)(5), the time may be extended if a motion for an extension is filed within 30
days after expiration of the time otherwise provided to file a notice of appeal,
upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time
to file an appeal may be reopened if the district court finds, upon motion, that the
following conditions are satisfied: the moving party did not receive notice of the
entry of the judgment or order within 21 days after entry; the motion is filed
within 180 days after the judgment or order is entered or within 14 days after the
moving party receives notice, whichever is earlier; and no party would be
prejudiced by the reopening.

(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal

in either a civil case or a criminal case, the notice of appeal is timely if it is
deposited in the institution’s internal mail system on or before the last day for
filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C.
§ 1746 or a notarized statement, either of which must set forth the date of deposit
and state that first-class postage has been prepaid.

Rev.: 3/2011
 
 Case 2:19-cv-00088-WKW-CSC Document 21-1 Filed 02/01/19 Page 3 of 3

3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of
appeal must be signed by the appellant.

4. Effect of a notice of appeal: A district court lacks jurisdiction, i.e., authority, to act after
the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or
to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

Rev.: 3/2011