THIS IS A CAPITAL CASE - EXECUTION SCHEDULED

MISSOURI HAS SET APPLICANTS EXECUTION FOR

JULY 16, 2014 at 12:01 AM

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT


JOHN C. MIDDLETON, :
Petitioner-Appellee, : No.: 14-2677
:
v. :
:
DONALD P. ROPER, Superintendent, :
Potosi Correctional Facility, :
Respondent-Appellant. :
:


MOTION FOR REHEARING OF VACATUR

Respondent moves to vacate the second stay of execution entered by Chief
Judge Perry on July 15, 2014, (Doc. 139), in relation to Mr. Middletons
Supplemental Petition raising Ford claims (Doc. 130). Pursuant to Rhines v. Weber,
544 U.S. 269 (2005), the district court ruled to stay the pending 2254 proceedings
and hold them in abeyance to permit Petitioner to exhaust claims in state court that
this Court, in a panel decision entered last night (July 15), determined was necessary
but, the panel expressly acknowledged, would require the Missouri Supreme Court to
adapt its procedures in order to permit adjudication of Ford claims. Middleton v.
Roper, No. 14-2667, ID 4175573 at 3.
Middleton has been more than diligent. He has been hyper-vigilant in
pursuing his Ford claim in the Missouri courts, despite the total absence of process
for bringing such claims. In fact, Middletons efforts have illuminated that the
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Missouri Supreme Court Rule 91 is a narrow writ which applies only in certain,
enumerated categories. Middleton v. Roper, No. 14-2667, ID 4175601 at 4 (Bye, J.,
dissenting).
The opportunity for the Missouri Supreme Court to adaptat has been presented
from time to time since Ford was rendered in 1986, with the latest such occasion
arising in November 2013 in relation to Mr. Joseph Franklins execution. The
Missouri Supreme Court has always declined these opportunities.
Along with staying the 2254 proceedings to permit exhaustion per this
Courts order of last night, the district court granted another stay of execution.
Whether the Court should now vacate that stay and permit the execution of Mr.
Middleton in light of the States strong interest in enforcing its criminal judgments
is to be determined by evaluation of certain factors bearing upon the equitable nature
of this remedy. Hill v. McDonough, 547 U.S. 573, 584 (2006).
I. Claims have significant possibility of success on the merits
As the district court found, Middleton has established a significant
possibility of success on the merits. Hill, 547 U.S. 584, citing Barefoot v. Estelle,
463 U.S. 880, 895-96 (1983). In the district courts earlier ruling on July 15 staying
Middletons execution, the court found:
Although the psychiatrist characterizes this opinion as
preliminary because he wishes to obtain additional information, it
is sufficient to make the substantial threshold showing of
incompetence that Ford recognized would entitle him to a stay of
execution and a full hearing. This evidence is certainly as strong
as that submitted in Panetti. There the petitioners sufficient
showing consisted of a letter and a declaration from two
individuals, a psychologist and a law professor, who had
interviewed petitioner while on death row on February 3, 2004.
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(Doc. 135 at 3-4), citing Panetti v. Quarterman, 551 U.S. 931, 938 (2007) (emphasis
added). This finding of fact is subject to review for clear error. Worthington v.
Roper, 631 F.3d 487, 495 (8th Cir. 2011), citing Armstrong v. Kemna, 365 F.3d 622,
626 (8th Cir. 2004). As such, this crucial finding establishes the first element under
Hill to require the court to uphold the stay of execution.
Further, as the district court had correctly reasoned, the contentions the
Respondent-Appellant has made in an effort to contest the quality or nature of the
substantial showing Middleton has made are the kind of arguments that should be
considered at a full Ford hearing, not on a motion to stay execution. (Doc. 135 at 4).
II. Petitioner cannot be faulted for not using Rule 91
The district court found that Middleton has shown good cause for not
exhausting the claim before the Missouri courts, because of the lack of a clear
procedure under Missouri law for raising the claim, and because of reasonable
confusion about the appropriate way to raise the claim before the Missouri courts.
(Doc. 139). See also Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005). The panels
ruling yesterday vacating Middletons stay stated that the Missouri Supreme Court
would need to adapt its procedures to accommodate a Ford-based Rule 91. This is
correct, as the State itself has argued in the last fruitless attempt to litigate Rule 91 in
that court. In Joseph Franklins November 2013 filed Rule 91 habeas petition on his
Ford claim, the State argued: The proper vehicle for litigating fitness for
execution is 552.060, RSMo., not by way of a habeas proceeding. (Exh. 1 at 1
n.1).
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Apart from the States own view of this question, the panels speculation as to
the Missouri Supreme Courts willingness to adapt to accommodate Ford litigation
is mooted by what that court has actually said on the matter. When presented with
the very question, the court held that 552.060 is the exclusive procedure for
determining competency to be executed. In re Competency of Bobby Lewis Shaw,
No. CV186-897CC, slip op. at 2-4 (Mo.Cir.Ct. Oct. 7, 1987), appeal dismissed, No.
69954 (Mo.Sup.Ct. Nov. 12, 1987).
III. Petitioner expeditiously presented claim after it ripened and the necessity
for a stay is due to Missouris choice to set execution dates with
insufficient notice
As the district court further held, Middletons counsel did not intentionally
delay resolution of the claim or delay it for tactical reasons. From all the evidence
there is no reason to believe that the claim could have been brought at such a time as
to allow consideration of the merits without requiring a stay. (Doc. 139); see Hill,
547 U.S. at 584, citing Nelson v. Campbell, 541 U.S. 637, 650 (2004).
Chief Judge Perry ruled that, [b]ecause a Ford claim is not ripe until an
execution date is set, and because this court denied petitioners request for funds to
hire a psychiatrist to evaluate petitioner until the execution date was actually set, the
time period from the date the execution was set until today was not sufficient for
petitioner's counsel, acting with reasonable diligence, to have a mental health expert
conduct the kind of complete evaluation of a person confined on death row that is
necessary to present a Ford claim. (Doc. 139).
In sum, Chief Judge Perrys considered opinion in granting the stay of
Middletons execution in light of the effort of Petitioner to exhaust his claims in state
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court immediately upon this Courts determinationright or wrongthat he had not
exhausted those claims warrants protection. Petitioners zealous effort to bring his
Ford claim in the Missouri courts and his being kept out of those courts strongly
counsels, as an equitable matter, against vacating the stay of execution. Middleton
pursued a Ford hearing in the Missouri Supreme Court using the very mechanism that
the panel has criticized Middleton for not usingthe motion for appointment of a
special master pursuant to Rule 68.03. Middleton, No. 14-2667, ID 4175573 at 3-4.
Middleton is blameless with regard to his pursuit of a Ford hearing court and,
should this Court vacate the second stay of execution he has obtained in relation to his
pending federal habeas application, his execution assuredly will be hastened despite
the showing that, under the long-held constitutional standard of Ford, there is strong
medical evidence to indicate that he is not sane.
It is no less abhorrent today than it has been for centuries to exact in penance
the life of one whose mental illness prevents him from comprehending the reasons for
the penalty or its implications. Ford, 477 U.S. at 418 (Marshall, J.).
IV. Conclusion
For the foregoing reasons, Petitioner-Appellee respectfully requests that the
Court deny the Motion to Vacate Stay of Execution. Should the court grant the
motion, Petitioner requests that the Court issue a stay pending an expedited
filing of a petition for rehearing en banc.
Respectfully submitted,
s/Joseph J. Perkovich
Joseph J. Perkovich
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6
PO Box 2171
New York, NY 10008
(212) 400-1660 (Tel.)
jjp@jos.perkovich.name


RICHARD H. SINDEL, #23406
KATHRYN B. PARISH, #61781
SINDEL SINDEL & NOBLE, P.C.
8000 Maryland Ave., Suite 350
Clayton, MO 63105
Clayton, MO 63105
(314) 721-6040 (tel)
(314) 721-8545 (fax)
kparish@sindellaw.com

Counsel For Petitioner John C. Middleton

July 16, 2014
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CERTIFICATE OF SERVICE
I hereby certify that the foregoing document was filed electronically with the
Clerk of the Court using the CM/ECF system. Notice of this filing and its viewing and
downloading are thereby provided to all counsel of record by cooperation of the CM/ECF
system.

Dated: July 16, 2013
New York, New York

s/Joseph J. Perkovich
Joseph J. Perkovich
Church Street Station
PO Box 2171
New York, NY 10008-2171
(212) 400-1660 (Tel.)
jjp@jos.perkovich.name

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