No.

___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
REPLY IN SUPPORT OF PETITION FOR A WRIT OF CERTIORARI AND
MOTION FOR STAY OF EXECUTION
_____________________________
Gerald W. King Jr. (Ga. Bar No. 140981) Mary Elizabeth Wells (Ga. Bar No.
747852)
Jeffrey Lyn Ertel (Ga. Bar No. 249966) Law Office of M.E. Wells
Federal Defender Program, Inc. 623 Grant Street, SE
101 Marietta Street, Suite 1500 Atlanta, GA 30313
Atlanta, GA 30303 (404) 408-2180
(404) 688-7530
Counsel of Record for Petitioner
As Judge Wilson notes in his concurring opinion, there is a disturbing circularity
problem created by Georgias secrecy law regarding methods of execution . . . . Ex. 2
(attached) at 16 (Wilson, J., concurring in judgment). Unless this Court intervenes, this
problem will keep Mr. Wellons and other death row prisoners running in circles until they
are executed, chasing evidence that Appellants keep deliberately out of reach.
As Mr. Wellons has detailed in his petition, Appellants are refusing to disclose the
very evidence that Mr. Wellons and this Court need to determine if the manner in which
they propose to execute him presents a substantial risk of serious harm or an objectively
intolerable risk of harm. Baze v. Rees, 553 U.S. 35, 51, 128 S. Ct. 1520, 1532 (2008)
(internal quotation marks omitted). As Judge Wilson wrote:
Possibly due to his lack of information about the compound pentobarbital
that will be used and the expertise of the people who will administer his
execution, Wellons has not shown such a risk. Indeed, how could he when
the state has passed a law prohibiting him from learning about the
compound it plans to use to execute him?
Ex, 2 at 16 (Wilson, J., concurring). There is no possibly about it. The State of
Georgia is hiding behind a statute designed to insure that no prisoner, regardless of the
constitutionality of its protocol, can ever obtain the information necessary to meet the
Baze standard.
Mr. Wellons has presented evidence about the range of dangers risked by
Defendants decision to use compounded pentobarbital and by the prospect of unqualified
personnel carrying out his execution. See Declarations of Dr. Larry Sasich (Ex. 5) and
1
Dr. Eric Katz (Ex. 6). This is literally all that he can do, given the constraints that
Appellants and their statute impose. He does not contend that he can meet the Baze
standard for a method-of-execution challenge with this evidence alone. Rather, he has
presented this evidence to demonstrate why Defendants refusal to disclose either the
source and, accordingly, the true nature of their lethal injection drugs and the
qualifications of the personnel charged with administering those drugs deprives both him
and this Court of the information necessary to determine whether their planned method of
execution would violate his right to be free from cruel and unusual punishment.
Where there is a legal right, there is also a legal remedy by suit or action at law,
whenever that right is invaded. See Marbury v. Madison, 5 U.S. 137, 163 (1803). If
Appellants are allowed to foreclose the remedy, how can it be a right? This Court is
literally all that stands between Mr. Wellons and the negation of his Eighth Amendment
rights.
For the foregoing reasons, and those in his petition and motion, Petitioner Marcus
Wellons respectfully requests that this Court grant a writ of certiorari to review the
decision of the Eleventh Circuit Court of Appeals.
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Respectfully submitted,
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
3
No. ___________

In the Supreme Court of the United States
October Term, 2013
____________________________
MARCUS A. WELLONS,
Petitioner,
V.
BRIAN OWENS, Commissioner, Georgia Department of Corrections,
BRUCE CHATMAN, Warden, Georgia Diagnostic and Classification Prison, and
OTHER UNKNOWN EMPLOYEES AND AGENTS, Georgia Department of Corrections ,
Respondents.
_____________________________
On Petition for a Writ of Certiorari to the United
States Court of Appeals for the Eleventh Circuit
_____________________________
CERTIFICATE OF SERVICE
_____________________________
I HEREBY CERTIFY that a true and correct copy of Marcus Wellonss REPLY
IN SUPPORT OF HIS PETITION FOR WRIT OF CERTIORARI AND MOTION FOR
STAY OF EXECUTION are being furnished by United States mail, first-class postage
prepaid, to counsel for Respondents, Sabrina Graham, Assistant Attorney General, 40
Capitol Square, SW, Atlanta, Georgia 30334-1300
4
This 17 day of June, 2014.
th
/s/ Gerald W. King, Jr.
Gerald W. King, Jr. (Ga. Bar No. 140981)
Jeffrey Lyn Ertel (Ga. Bar No. 249966)
FEDERAL DEFENDER PROGRAM, INC.
101 Marietta Street, Suite 1500
Atlanta, Georgia 30303
404-688-7530
(fax) 404-688-0768
Gerald_King@fd.org
Jeff_Ertel@fd.org
Mary Elizabeth Wells (Ga. Bar No. 747852)
LAW OFFICE OF M.E. WELLS
623 Grant Street SE
Atlanta, Georgia 30312
(404) 408-2180
ATTORNEYS FOR MARCUS WELLONS
5