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Documents Obtained by Buzzfeed Nos. 18-6892 & 18A572 IN THE Supreme Court of the United States JOSEPH C. GARCIA, Petitioner, v. BRYAN COLLIER; LORIE DAVIS; JAMES L. JONES; JOHN OR JANE DOES 1–50, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit and Application for Stay of Execution BRIEF IN OPPOSITION KEN PAXTON MATTHEW OTTOWAY Attorney General of Texas Assistant Attorney General Counsel of Record JEFFREY C. MATEER First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711 ADRIENNE McFARLAND (512) 936-1400 Deputy Attorney General [email protected] For Criminal Justice EDWARD L. MARSHALL Chief, Criminal Appeals Division Counsel for Respondents CAPITAL CASE QUESTIONS PRESENTED 1. Should this Court grant a writ of certiorari in an untimely method-of-execution case founded upon hearsay, speculation, and dubious legal grounds? 2. Should this Court grant a stay of execution where there is no substantial likelihood of success on the merits, where there is extreme dilatoriness, and where the equities lie in favor of the State? i TABLE OF CONTENTS QUESTIONS PRESENTED ...................................................................... i TABLE OF CONTENTS ........................................................................... ii TABLE OF AUTHORITIES .................................................................... iii BRIEF IN OPPOSITION .......................................................................... 1 STATEMENT OF THE CASE .................................................................. 1 I. Garcia’s Offense and Postconviction Challenges ............................. 1 II. Garcia’s Recent Litigation ................................................................ 2 III. The Course of Garcia’s Present Lawsuit ......................................... 4 REASONS FOR DENYING THE PETITION AND A STAY ................... 4 I. The Standard Governing Requests for Preliminary Injunction.. ....................................................................................... 4 II. The Standard Governing Stay Requests ......................................... 5 III. Garcia Failed to Show Any Likelihood of Success on the Merits, Let Alone the Required Substantial Showing .................... 6 A. Garcia’s Eighth Amendment claim ......................................... 7 1. The claim is untimely .................................................... 7 2. The claim fails as a matter of law ................................. 9 B. Garcia’s First Amendment and due process claims ............. 15 1. The claims are untimely .............................................. 15 2. The claims fail as a matter of law ............................... 17 IV. Garcia Did Not Prove That He Is Likely to Suffer Irreparable Harm……. ...................................................................................... 19 V. The Balance of Equities Favored the State ................................... 24 VI. Garcia Failed to Show Diligence in His Litigation ........................ 26 VII. This Court Should Deny Garcia a Stay of Execution .................... 28 CONCLUSION ........................................................................................ 30 ii TABLE OF AUTHORITIES Cases Baze v. Rees, 553 U.S. 35 (2008) ............................................. 9, 10, 12, 14 Berry v. Epps, 506, F.3d 402 (5th Cir. 2007) .......................................... 26 Dallas Cty. v. Commercial Union Assurance Co., 286 F.2d 388 (5th Cir. 1961) .......................................................... 11 Getsy v. Strickland, 577 F.3d 309 (6th Cir. 2009) .................................... 7 Glossip v. Gross, 135 S. Ct. 2726 (2015) ......................................... passim Gomez v. U.S. Dist. Ct. N. Dist. Cal., 503 U.S. 653 (1992) ..................... 28 Harris v. Johnson, 376 F.3d 414 (5th Cir. 2004) .............................. 27, 28 Hill v. McDonough, 547 U.S. 573 (2006)................................... 5, 6, 25, 26 In re Ohio Execution Protocol, 860 F.3d 881 (6th Cir. 2017) .................. 13 Johnson v. Precythe, 901 F.3d 973 (8th Cir. 2018) ................................... 7 Kincy v. Livingston, 173 F. App’x 341 (5th Cir. 2006) ............................ 27 Lewis v. Casey, 518 U.S. 343 (1996) ........................................................ 18 Mayor of Philadelphia v. Educ. Equal. League, 415 U.S. 605 (1974) ........................................................................ 10 McNair v. Allen, 515 F.3d 1168 (11th Cir. 2008) ...................................... 7 Munaf v. Geren, 553 U.S. 674 (2008) ........................................................ 5 Nken v. Holder, 556 U.S. 418 (2009) ......................................................... 5 Raby v. Livingston, 600 F.3d 552 (5th Cir. 2010) ............................... 8, 13 Sepulvado v. Jindal, 729 F.3d 413 (5th Cir. 2013) ................................. 17 Summers v. Tex. Dep’t Criminal Justice, 206 F. App’x 317 (5th Cir. 2006) .................................................... 26 Tesfamichael v. Gonzales, 411 F.3d 169 (5th Cir. 2005) ........................ 15 Trottie v. Livingston, 766 F.3d 450 (5th Cir. 2014) ...................... 8, 16, 27 Walker v. Epps, 550 F.3d 407 (5th Cir. 2008) ....................................... 7, 9 Wellons v. Comm’r Ga. Dep’t Corr., 754 F.3d 1260 (11th Cir. 2014) ........................................................................ 17, 18 iii Whitaker v. Collier, 862 F.3d 490 (5th Cir. 2017) ................... 8, 10, 14, 18 Whitaker v. Livingston, 732 F.3d 465 (5th Cir. 2013) .................. 8, 18, 27 Whitaker v. Livingston, No. H-13-2901, 2016 WL 3199532 (S.D. Tex. June 6, 2016) ........................................................... 11, 20 Williams v. Hobbs, 658 F.3d 842 (8th Cir. 2011) .................................... 18 Wilson v. Garcia, 471 U.S. 261 (1985) ...................................................... 7 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................... 4, 5 Wood v. Collier, 678 F. App’x 248 (5th Cir. 2017) ............................ 15, 16 Wood v. Collier, 836 F.3d 534 (5th Cir. 2016) ............................. 13, 19, 25 Statutes 28 U.S.C. § 1983 ........................................................................................ 5 Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) ......................................... 7 iv BRIEF IN OPPOSITION Bryan Collier, Lorie Davis, James L. Jones, and John or Jane Does 1–50, individuals holding various titles within the Texas Department of Criminal Justice (TDCJ), respectfully submit this brief in opposition to the petition for a writ of certiorari and application for stay of execution filed by Joseph C. Garcia. STATEMENT OF THE CASE I. Garcia’s Offense and Postconviction Challenges On December 13, 2000, Garcia and six other inmates escaped from a Texas prison. Garcia v. Davis, 704 F. App’x 316, 318 (5th Cir. 2017). On December 24, 2000, the group robbed a sporting-goods store in Irving, Texas, killing Officer Aubrey Hawkins as they fled. Id. at 319. The escapees made their way to Colorado where they were eventually captured, save one who committed suicide, in January 2001. Id. Garcia was convicted of capital murder and sentenced to death in February 2003. Garcia v. State, No. AP-74,692, 2005 WL 395433, at *1 (Tex. Crim. App. Feb. 16, 2005). His conviction was affirmed on direct appeal in February 2005. Id. His initial state habeas application was 1 denied in November 2006. Ex parte Garcia, No. WR-64,582-01, 2006 WL 1 3308744, at *1 (Tex. Crim. App. Nov. 15, 2006).0F Garcia then turned to the federal forum, but collateral relief was denied by the district court. Garcia, 704 F. App’x at 319. On appeal, Garcia was unable to obtain a certificate of appealability or otherwise demonstrate reversible error. Id. at 327. A petition for writ of certiorari was denied earlier this year. Garcia v. Davis, 138 S. Ct. 1700 (2018). II. Garcia’s Recent Litigation Garcia very recently filed another subsequent state habeas application. It too was dismissed. Ex parte Garcia, No. WR-64,582-03, slip op. (Tex. Crim. App. Nov. 30, 2018). Garcia is presently petitioning this Court for a writ of certiorari from that decision and seeking a stay of execution. Petition for Writ of Certiorari, Garcia v. Texas, No. 18-6891 (U.S. Nov. 30, 2018); Application for Stay of Execution, Garcia v. Texas, No. 18A571 (U.S. Nov. 30, 2018). A decision remains pending. Also very recently, Garcia filed a civil rights action challenging Texas’s executive clemency system. The requested injunctive relief was 1 A subsequent state habeas application, filed during the pendency of federal habeas litigation, was dismissed in March 2008. Ex parte Garcia, No. WR-64,582-02, 2008 WL 650302, at *1 (Tex. Crim. Mar. 5, 2008). 2 denied and the suit dismissed with prejudice. Memorandum and Order, No. H-18-4503, slip op. (S.D. Tex. Nov. 30, 2018), ECF No. 4. Garcia appealed, but the United States Court of Appeals for the Fifth Circuit affirmed the dismissal and, consequently, dismissed the stay of execution as moot. Garcia v. Jones, No. 18-70031, slip op. (5th Cir. Dec. 2, 2018). Garcia, even more recently, filed a motion for relief from the final judgment in his federal habeas case and moved the district court for a stay of execution. The district court found Garcia’s motion to be a disguised second-or-successive habeas petition and transferred it and the motion to stay to the Fifth Circuit.
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