IN THE SUPREME COURT OF THE UNITED STATES
DAVID ZINK, et al.,
Cecil Clayton
Plaintiffs-Appellants,
v.
GEORGE A. LOMBARDI, et al.,
Defendants-Appellees.

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No.1414A911

SUGGESTIONS IN OPPOSITION TO PLAINTIFF
WALTER STOREY’S MOTION FOR STAY OF EXECUTION AND TO
HIS PETITION FOR CERTIORARI
Case Summary
Cecil Clayton alleges at the eleventh hour this Court should stay his
scheduled execution because he claims he has a significant possibility of
success on the merits of the Eighth Amendment claim submitted to the court
below en banc in Zink v. Lombardi. But this Court has rejected the same
arguments made in stay applications by various plaintiffs in the Zink
litigation before their executions in the last year. Storey’s stay application
raises claims Plaintiffs Goodwin and Storey raised unsuccessful stay
applications in the court below en banc and his certiorari petition and stay
application in this Court denied in December 2014.These are claims that this
Court has repeatedly found unworthy of a stay in the past. But nothing
relevant has changed.

 I.

This Court should analyze the stay application under the Hill v.
McDonough standard.
In Hill v. McDonough, 547 U.S. 573 (2006), this Court held that a

pending lawsuit does not entitle a condemned inmate to a stay of execution as
a matter of course, and that the State and crime victims have an important
interest in the timely execution of a death sentence. Id. at 583–84. This Court
held that applicants seeking a stay based on a suit challenging the manner in
which the State plans to execute them must meet all the elements of a stay,
including showing a significant possibility of success on the merits. Id. at 584.
This Court cited Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam), for the proposition that a “preliminary injunction [is] not granted
unless the movant, by a clear showing, carries the burden of persuasion.”
Hill, 547 U.S. at 584. Storey does not carry that burden. Importantly in this
case there is no execuse for Claton filing this petition less than two hours
before his scheduled execution. That reason alone supplies an independent
and adequate reason to deny a stay.
II.

Clayton’s Eighth Amendment claim does not entitle him to a
stay and this has not changed as a result of the recent grant of
certiorari in Glossip v. Gross or because inmates have the
option of receiving a sedative to calm them before executions.
Clay alleges his execution using pentobarbital will violate the Eighth

Amendment ban on cruel and unusual punishment. However, a three judge
plurality in Baze held that for a risk of harm from execution to violate the

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 Eighth Amendment “the conditions presenting the risk must be sure or very
likely to cause serious illness and needless suffering, and give rise to
sufficiently imminent dangers.” Baze v. Rees, 535 U.S. 35, 50 (2008) (internal
quotations omitted, emphasis in the Baze decision). A majority of this Court
recently relied on the “sure or very likely to cause serious illness and needless
suffering” standard in vacating a stay of execution. Brewer v. Landrigan, 131
S.Ct. 445 (2010). Therefore, in order to survive a motion to dismiss, the
plaintiffs must at least present a plausible claim that Missouri execution
procedures are “sure or very likely to cause serious illness and needless
suffering”, and give rise to sufficiently imminent dangers. The standard for
surviving a motion to dismiss, by contrast, is easier for a plaintiff to meet
than the “significant possibility of success on the merits of the claim”
standard evaluated as one of the four factors necessary for a stay under Hill.
The test that Storey must satisfy to justify a stay in this case, set out
by the three judge plurality in Baze, not only requires that the alleged
suffering be “sure or very likely” to occur, but also that the risk of potential
suffering be “needless.” The plurality held “[s]ome risk of pain is inherent in
any means of execution—no matter how humane—if only from the prospect of
error in following the procedure. It is clear then the Constitution does not
demand the avoidance of all risk of pain in carrying out executions.” Baze,
553 U.S. at 44. In addressing the requirement that the sure or very likely

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 suffering also be needless, the plurality indicated such suffering was needless
if the State, without a legitimate penological justification, refused to adopt a
feasible, readily implemented alternative means of execution, which
substantially reduces a risk of severe pain. Id. at 52.
Clay fails both prongs of the Baze test. Missouri carried out 13
executions using pentobarbital since November 2013, and no observer has
seen anything inconsistent with those executions all being rapid and
painless. Over 200 witnesses from 13 separate executions support the
position that all Missouri executions using pentobarbital have been rapid and
painless. It is implausible to allege Missouri’s use of pentobarbital in
executions is sure or very likely to cause serious illness and needless
suffering when, time-after-time, that has not happened.
The court below sitting en banc has held that “[w]ithout plausible
allegations of a feasible and more humane alternative method of execution, or
purposeful design by the State to inflict unnecessary pain, the plaintiffs have
not stated an Eighth Amendment claim….” In re Lombardi, 741 F.3d 888,
896 (8th Cir. 2014) (en banc), cert. denied, sub nom. Zink v. Lombardi, No. 138435 (Apr. 7, 2014). Here, Storey has not alleged a specific plausible
alternative by suggesting a more humane method of execution, nor does he
allege that the State has purposefully designed its execution method in order
to cause unnecessary pain. Because Missouri executions have in fact all been

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 rapid and painless, such an allegation would be implausible in any event.
Storey, like earlier stay applicants, presents an opinion from an expert
asserting various things that could go wrong with Missouri executions. But
they never have. In the absence of a factual basis, a speculative parade of
horribles does not satisfy the requirements of a viable Eighth Amendment
claim.
Storey fails to show that the State’s execution protocol is “sure or very
likely” to cause serious illness and unnecessary pain, as required to succeed
on his Eighth Amendment Claim. Storey’s allegations are insufficient to
create a significant possibility of success under this standard, or even to
survive under the lesser standard for surviving a motion to dismiss. Plaintiffs
Franklin, Nicklasson, Smulls, Michael Taylor, Ferguson, Rousan, Winfield,
Worthington, Ringo, Christeson, Leon Taylor, Goodwin, and Williams also
presented essentially the same evidence and this Court found the evidence
insufficient. Plaintiff Middleton did not even seriously pursue an Eighth
Amendment lethal injection claim in his stay litigation, instead concentrating
on issues more specific to his case. Accordingly, Storey is not entitled to a
different result on the same evidence.

A. The stay and certiorari grant in Glossip v. Gross is not
applicable to this case.

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 In Glossip v. Gross, 14-7955, this Court, at Oklahoma’s request, issued
a stay of three Oklahoma executions. The stay is explicitly limited to
“executions using Midazolam” The certiorari petition, on which the stay is
based, indicates that Oklahoma uses a three-chemical execution protocol that
includes midazolam as the first chemical, a paralytic as the second chemical,
followed by potassium chloride to stop the heart. The petition alleges as an
undisputed fact that administering the last two chemicals, without first
administering an anesthetic that causes deep unconsciousness, would result
in “intense and needless pain and suffering.” (Id. at 3). The petition also
alleges that midazolam is pharmacologically unable to act as a surgical
anesthetic that creates the required level of unconsciousness necessary to
administer the second two chemicals. The petition alleges this is because
beyond a certain point, increasing the dosage of midazolam does not increase
its effect, and therefore midazolam cannot reliably produce unconsciousness
(Id. at 2–10). The petition explicitly contrasts the use of midazolam with the
use of a fast-acting barbiturate, like that used by Missouri, which the petition
quotes Baze as stating “ensures the inmate does not experience any pain.”
(Id. at 6 quoting Baze v. Rees, 553 U.S, at 44).
Missouri uses pentobarbital, a fast-acting barbiturate, as the sole lethal
chemical in its execution procedures. Missouri does not use midazolam as a
lethal chemical. The fact that Missouri offers a pre-execution sedative such as

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 valium or midazolam to relieve anxiety before an inmate’s execution if he
wishes to receive it, does not make Missouri’s protocol like that of Oklahoma.
Witness statements from all 13 Missouri executions using pentobarbital show
that all the executions were rapid and painless. Of the last four executions in
Missouri, three of the inmates, Earl Ringo and Leon Taylor and Walter
Storey declined sedatives, and one, Paul Goodwin, asked for sedatives and
received valium and midazolam. In all three of these executions, a conscious
inmate rapidly and painlessly went to sleep when injected with the lethal
chemical, pentobarbital.
Missouri’s use of midazolam as an optional sedative for inmates who
are understandably anxious before their own executions has little in common
with Oklahoma’s protocol, which relies on midazolam to act as a necessary
surgical anesthetic to prevent severe pain from the administration of a
paralytic, followed by the administration of a chemical that causes a heart
attack. Missouri does not violate the Eighth Amendment by offering preexecution sedatives to inmates who want them to relieve anxiety on the day
of their execution. The choice inmates made on whether to take pre-execution
sedatives had no effect on the fact Missouri executions using pentobarbital
were all rapid and painless. This is necessarily so as the executions of
inmates who declined sedatives, like the executions of inmates who received
sedatives were rapid and painless

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 B. Clayton does not comply with In re Lombardi and Baze by
merely stating some unspecified, more humane method of
execution exists.
Clayton argues that because he is willing to admit that some
unspecified method of execution that would be constitutional exists, he has
complied with In re Lombardi. That claim is without merit. What Storey is
really saying with this argument is that all he needs to do to meet the test of
In re Lombardi and Baze is to offer a vague admission alleging the Missouri
execution procedure is not the safest procedure theoretically possible. This
ambiguous statement is insufficient to support a stay. Baze and In re
Lombardi require that he articulate a feasible constitutional alternative
method of execution that would substantially reduce a serious risk of pain.
The plaintiffs executed since the In re Lombardi decision made this
argument, and this Court has rejected their claims for stays and petitions for
certiorari, and nothing relevant changed on this issue after their executions.
C. The district court did not find that the plaintiffs satisfied the
first prong of In re Lombardi and Baze analysis.
Plaintiffs have argued that the district court order dismissing nine
claims in the Zink litigation, but letting the tenth claim survive for two
weeks before the court ultimately dismissed it in a later order, supports the
argument that they are entitled to stays of execution. It does not. Storey, like
the other plaintiffs, contends that because the district court dismissed the

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 Eighth Amendment claim in the Zink litigation based on the second prong of
In re Lombardi, the court implicitly found that plaintiffs had satisfied the
first prong, and that he is therefore entitled to a stay of execution. Storey
argues he has a significant possibility of success on the first prong, and in his
view the district court and the court below misunderstand the second prong.
In order to survive a motion to dismiss a claim must merely be
plausible. Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011). But to
support a stay application the claim must have a significant possibility of
success on the merits, a significantly higher standard. Hill, 547 U.S. at 584.
This Court denied Franklin and Nicklasson’s stay motions based on
essentially the same evidence Storey now presents, before In re Lombardi
was decided. The thrust of those decisions was that Franklin and Nicklasson
did not meet the first prong of what is now the In re Lombardi test. The fact
that the district court dismissed the Zink litigation based on the second prong
of the In re Lombardi test does not change this finding. Additionally,
Winfield, Middleton, Worthington, Ringo, Leon Taylor, and Goodwin were
executed in June, July, August, September, October and December 2014,
after the district court analysis Storey alleges justifies a stay.
D. Alleged difficulties involving other states’ execution
protocols do not support the stay of a Missouri execution
when Missouri executions using pentobarbital have been
uniformly rapid and painless.

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 Missouri has carried out 12 rapid and painless executions since
November 2013, using pentobarbital as the lethal chemical. Over 200 witness
statements confirm this, many from members of the media. None of these
witness statements indicate any inmate suffered any discomfort at all. The
witness statements from the most recent executions, the executions of Ringo,
Taylor, and Goodwin all indicate that within seconds of the injection of the
lethal chemical, pentobarbital, a conscious inmate rapidly fell asleep (Ex. 1).
Ringo and Leon Taylor declined pre-execution sedation; Goodwin asked for
and received it (Ex. 4). None demonstrated any discomfort. Clayton attempts
to link the use of midazolam as a mandatory anesthetic in Oklahoma’s
execution procedure, followed by painful chemicals that paralyze breathing
muscles and stop the heart, the use of which requires complete anesthesia,
with its use as an optional pre-execution sedative to reduce an inmate’s
anxiety in Missouri. There is no connection. In Missouri, the inmate is awake
when he receives pentobarbital, a fast- acting barbiturate and the sole lethal
chemical used in Missouri. Any alleged defect of midazolam as an anesthetic
in Oklahoma’s three-chemical execution procedure is irrelevant to Missouri
procedures. The 13 rapid and painless Missouri executions are the proper
comparison, not executions in other states using procedures over which
Missouri has no control. Further, if Clayton does not want a sedative he may
say no, as Ringo and Taylor, and Storey did. Like all Missouri executions

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 using pentobarbital, their executions were rapid and painless. In fact through
counsel he has implicitly done that already.
III.

Conlusion
This Court should deny the motion for a stay of execution and the

petition for the writ of certiorari.

Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/Michael J. Spillane
MICHAEL J. SPILLANE
Assistant Attorney General
Missouri Bar No. 40704
P.O. Box 899
Jefferson City MO 65102
Phone: 573.751.1307
Fax: 573.751.3825
mike.spillane@ago.mo.gov
ATTORNEYS FOR DEFENDANTS

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