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Follow-up on Vacating the Franklin Stay

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Several posts in the last two days have noted the case of Joseph Franklin in Missouri:  the stays of execution, the Eighth Circuit's action vacating the stays, and the Supreme Court's refusal to reinstate them.  I have found the Eighth Circuit's orders in the case.  Here is the order vacating the one of the stays:

Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden under 28 U.S.C. § 2254(d) to present sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Panetti v.  Quarterman, 551 U.S. 930, 946-47, 956-57, 961 (2007). Determining the district court abused its discretion, we reverse the district court's stay of execution.

Well that's pretty short and sweet, probably due to the time pressures.
What does Panetti say on the cited pages?  On 946-47, it says:

And last-minute filings that are frivolous and designed to delay executions can be dismissed in the regular course. The requirement of a threshold preliminary showing, for instance, will, as a general matter, be imposed before a stay is granted or the action is allowed to proceed.
The other two point cites relate to the too-crazy-to-execute standard of Ford v. Wainwright, which was one of Franklin's claims.

Franklin, of course, immediately moved for rehearing en banc:

The petition for rehearing en banc is denied. The petition for rehearing by the panel is also denied.

Judges Murphy, Bye, and Kelly would grant the petition for rehearing en banc.

Judges Wollman, Loken, and Benton did not participate in the consideration or decision of this matter.

There's a whole lotta recusin' goin' on.  Three judges on the Eighth Circuit and one on the Supreme Court.

Here is the order vacating the lethal injection stay:

"[A] stay of execution is an equitable remedy. It is not available as a matter of right, and equity must be sensitive to the State's strong interest in enforcing its criminal judgments without undue interference from the federal courts." Hill v. McDonough, 547 U.S. 573, 584 (2006). Having reviewed the parties' briefs and the record in this expedited appeal, we conclude Joseph Franklin has not met his burden of presenting sufficient evidence to warrant interference with the judgment of the Missouri courts nor has Franklin proffered sufficient evidence to show a likelihood of success on the merits to support a stay of execution. See Brewer v. Landrigan, ___ U.S. ___, 131 S. Ct. 445 (2010); Baze v. Rees, 553 U.S. 35, 47-48 (2008); Whitaker v. Livingston, 732 F.3d 465, 468-69 (5th Cir. 2013) (per curiam). Determining the district court abused its discretion, we reverse the district court's stay of execution.
The denial of rehearing en banc is similar.  Same lineup.  Apparently Franklin didn't that this one to SCOTUS.

Will there be further opinions explaining the orders vacating the stays?  Don't count on it.  The dockets show entries "Prisoner Executed."  Interesting practice.  Hadn't seen that on a docket before.  Then the court dismisses the cases as moot.

According to the online dockets, Missouri was represented by Stephen Hawke in the Eighth Circuit and Michael Spillane in the Supreme Court.  Let's have a standing ovation for a job well done.

4 Comments

"Let's have a standing ovation for a job well done."

Yes.

What's really nice is that the 8th Circuit now has an opinion, though brief, that takes the Baze plurality as governing law on the issue of LI stays. Yes, Brewer v. Landrigan does it as well, but Missouri and Arkansas can now wave this Circuit Court decision in the face of any recalcitrant judge who wants to freelance on the issue. Additionally, the 8th Circuit has laid down a marker on last minute stay applications.

None of this would have happened had not the lawless District Judges flouted the law. They did, and now the slapdown is 8th Circuit law.

And the world is rid of a racist child murderer.

All in all, a good day for justice.

Just so. The defense here made a classic mistake, but one you see all the time in individual (as opposed to institutional) litigants. They went a bit out on the litigate-anything-other-than-the-specific-Baze-cocktail limb, won with a left wing district judge, drew a middle-of-the-road panel on the Circuit, lost with a nice opinion, so now our side and a very useful precedent for an issue that's sure to recur, and with a SCOTUS imprimatur to boot.

Sometimes the kneejerk indiscipline of the defense bar is a gift from heaven.

|/| "Determining the district court abused its discretion, we reverse the district court's stay of execution."|\|

"a left wing district judge"

Prof. Otis:

Is the charge of "abusing its discretion" significant?
Will there be ramifications, or is this another effective reversal but toothless reprimand?
[ I am thinking of the scores of reversals of the 9th Circuit by SCOTUS.]

Is there anything the public can do to prevent this obfuscation?

~Adamakis

"Abuse of discretion" is something of a term of art. The finding is not a basis for any action against the judge.

The answer is to implement Chapter 154 of Title 28, United States Code, the "fast track" enacted by Congress in 1996 but stalled ever since. If a state qualifies under that chapter, and a federal habeas corpus petition has been litigated to completion, "no Federal court thereafter shall have the authority to enter a stay of execution in the case, unless the court of appeals approves the filing of a second or successive application under section 2244(b)." 28 U.S.C. §2262(c). District judges simply could not do it on their own.

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