Christopher Sepulvado Motion for Stay of Execution

8/13/2019 Christopher Sepulvado Motion for Stay of Execution

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IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF LOUISIANA

JESSIE HOFFMAN and )

CHRISTOPHER SEPULVADO ) CIVIL ACTIONPlaintiffs )

) NO. 3:12-cv-00796v. )

) JUDGE JAMES BRADYBOBBY JINDAL, Governor of Louisiana; )BURL CAIN, Warden, Louisiana State ) MAGISTRATE JUDGEPenitentiary; JAMES LEBLANC, Secretary, ) STEPHEN RIEDLINGERLouisiana Department of Public Safety and )Corrections; LOUISIANA DEPARTMENT OF )PUBLIC SAFETY AND CORRECTIONS; )

ANGELA NORWOOD , Warden, Death Row; ) and JOHN DOES, unknown executioners, Defendants

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PLAINTIFF CHRISTOPHER SEPULVADOS MOTION FOR A STAY OFEXECUTION, A TEMPORARY RESTRAINING ORDER, A PRELIMINARY

INJUNCTION, AND AN ORDER UNDER THE ALL WRITS ACT STAYING HISEXECUTION

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Plaintiff Christopher Sepulvado moves for a stay of execution, and, pursuant to Federal

Rule of Civil Procedure 65(a) and (b), for a temporary restraining order ("TRO") and a

preliminary injunction. Sepulvado moves to stay the death warrant issued by the district court of

Louisiana and to bar Defendants and each of them, and/or their agents, from acting jointly or

severally to implement any part of their written execution protocol as to him. Sepulvado

similarly seeks to bar the same from attempting to execute him on February 5, 2014, by means of

Defendants' execution protocol and policies which will deprive him of his rights in violation of

the Eighth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. 1983.

Plaintiff Christopher Sepulvado is scheduled to be executed on February 5, 2014. As of

January 24, 2014, the Defendants did not have any pentobarbital in their possession. The

Case 3:12-cv-00796-JJB-SCR Document 105 01/27/14 Page 1 of 4


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Defendants have had since September 2013 to obtain replacement drugs when their own supply

of FDA pentobarbital expired. They refused to obey discovery requests ordered by the

Magistrate to be sent by October of last year disclosing what drugs they would use in forth

coming executions despite Magistrate Judge Riedlinger earlier denial of a protective order.

Defendants' protocol has been a frustratingly moving target. In the face of such a grave

consequence as the death penalty, this Court should decline to reward the Defendants' attempts to

prevent Plaintiffs from fully litigating their claims. Since this lawsuit was initiated over a year

ago the Defendants have escalated their strategy of obfuscation and delay, insisting on impeding

discovery through spurious claims of state secrets so that they can evade resolution of the issueswhile attempting to accelerate the pace of executions in Louisiana with Mr. Sepulvado next in

their cross-hairs.

Mr. Sepulvado and the other, Mr. Hoffman, have developed and asserted their claims as

promptly as possible. This Court is well aware of the convoluted procedural history of this

litigation, and there is no question that Defendants are the source of the delays in resolving the

issues. Neither Mr. Sepulvado nor his fellow plaintiff, Mr. Hoffman have been less than diligent

in seeking a prompt resolution of the issues in this case.

At the very least, and certainly in the event this Court declines to grant a stay of

execution, TRO and preliminary injunction at this time as requested herein, Sepulvado requests

that this Court, pursuant to its authority under the All Writs Act, 28 U.S.C. 1651(a), and the

Anti Injunction Act, 28 U.S.C. 2283, issue an order in aid and preservation of its jurisdiction in

this 1983 action prohibiting Defendants and the State of Louisiana and its agents, from

proceeding with Sepulvados execution by lethal injection on February 5, 2014, in clear

disregard of this Court's jurisdiction over this litigation and Sepulvado's constitutional challenges



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to the very lethal injection protocol Defendants plan to use in Sepulvados execution. Mr.

Sepulvado also seeks a stay from the Court until he has an opportunity to seek independent

testing of any drug planned to Defendants plan to use in his execution. The requested order

under the All Writs Act should prohibit Defendants and the State of Louisiana, and its agents,

from proceeding with Sepulvados execution until such time as the necessary and proper

discovery can be completed on Defendants' revised execution protocol, to allow the Court to

address, in a deliberative manner and fully informed by the relevant facts and legal authorities,

the merits of Sepulvados serious constitutional challenges to that newly-adopted, revised

execution protocol.An order under the All Writs Act is necessary to preserve this Court's jurisdiction over a

matter properly before it and to preserve the integrity of these proceedings in which Sepulvado

has long been an active participant. Otherwise, Defendants will have yet again effectively

undermined this Court's authority by rushing to adopt a new protocol in time to execute

Sepulvado but before he has a reasonable chance to fairly litigate the serious issues the new

protocol presents. An order may be issued under the All Writs Acts without any requirement for

the Court to evaluate the four factors applicable to traditional injunctions. See, e.g., Klay v.

United Healthgroup, Inc., 376 F.3d 1092, 1100 (11th Cir. 2004) ("The requirements for a

preliminary injunction do not apply to injunctions under the All Writs Act because a court's

traditional power to protect its jurisdiction, codified by the Act, is grounded in entirely separate

concerns.") In light of the immediately imminent scheduled execution date, a temporary

restraining order, preliminary injunction and stay of execution, along with a stay pursuant to the

All Writs Act, are necessary to allow Sepulvado to litigate his claims before he is

unconstitutionally executed.



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Mr. Sepuvaldo is requesting a TRO of only thirty days after the Defendants provide the

Plaintiffs with the evidence he needs to prove his Eighth Amendment claims and to present such

evidence at a hearing on his request for a preliminary injunction. This period of time will allow

additional and highly productive discovery, and will also allow for regulatory authorities to

investigate Plaintiffs' complaints. Defendants should not be rewarded for their constant changes

of protocol and continuing delays during discovery all of which have combined to prevent Mr.

Sepulvado and Mr. Hoffman from obtaining the critical evidence they need to show that

Defendants' use of a defective lethal drug poses an enormous risk that Mr. Sepulvado will

experience severe and unnecessary pain during his execution. Mr. Sepulvado requests expediteddiscovery, oral argument and an evidentiary hearing with post-hearing briefing as the Court

deems necessary on his motion. The reasons supporting this request are explained in the

attached memorandum in support.

Respectfully submitted,

_____/s Gary Clements______________________Gary Clements, La. Bar Roll # 21978Kathleen Kelly La. Bar Roll #25433Capital Post-Conviction Project of Louisiana1340 Poydras Street, Suite 1700

New Orleans, LA 70112Tel. (504)212-2110Fax (504)212 -2130

Attorneys for Plaintiff Christopher Sepulvado

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forgoing was filed electronically with theClerk of Court using CM/ECF on this 27 th day of January, 2014. Notice of this filing asgenerated by the electronic filing system constitutes service of the filed document on counsel forthe Respondent.

___/s Gary Clements _____


Christopher Sepulvado Motion for Stay of Execution

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