No. 16-5230 and 16A59
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IN THE SUPREME COURT OF THE UNITED STATES
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In re JOHN WAYNE CONNER, Petitioner
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PETITION FOR A WRIT OF HABEAS CORPUS
CAPITAL CASE
_________________
BRIEF IN OPPOSITION ON BEHALF OF RESPONDENT
TO PETITION FOR CERTIORARI REVIEW AND REQUEST FOR STAY

SAMUEL S. OLENS
Attorney General
BETH A. BURTON
Deputy Attorney General
PAULA K. SMITH
Senior Assistant Attorney
(Counsel of Record)
Please serve:
Paula Smith
40 Capitol Square
Atlanta, Georgia 30334-1300
(404) 656-3351
psmith@law.ga.gov

 QUESTIONS PRESENTED
1.

Whether this Court should grant certiorari to review a claim that is moot?

2.

Whether this Court should grant certiorari to review a decision of the lower
courts that does not conflict with its precedent?

3.

Whether this Court should grant certiorari to review a claim that was not raised
below?

i

 TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................i
SUMMARY OF ARGUMENT ................................................................................. 1
PROCEDURAL HISTORY....................................................................................... 1
REASONS FOR SUMMARILY DENYING THE WRIT ........................................ 5
CONCLUSION .......................................................................................................... 7

ii

 BRIEF IN OPPOSITION
ON BEHALF OF RESPONDENT
Respondent, Warden, respectfully prays that the petition writ of habeas
corpus be denied.
I. SUMMARY OF ARGUMENT
Petitioner is seeking certiorari review on issues that are moot, seeking
advisory opinions, not raised below or not in conflict with this Court’s precedent.
Certiorari review should be denied.
III. PROCEDURAL HISTORY
Petitioner John Wayne Conner (“Petitioner”) was sentenced to death, following
a jury trial, in 1982. On direct appeal, the convictions and sentences for malice murder
and motor vehicle theft were affirmed. Conner v. State, 251 Ga. 113, 303 S.E.2d 266,
cert. denied, 464 U.S. 865, reh’g denied, 464 U.S. 1005 (1983).
Petitioner filed his first state collateral attack on his convictions in March 1984,
Conner v. Zant, No. 6335 (Butts Super. Ct. Jan. 6, 1997) (“Conner I”). He amended
the petition twice before evidentiary hearings were held in September 1984 and
February 1985, and he filed a third amendment at the 1985 hearing. The case was
subsequently reassigned to several visiting judges, and the last judge reviewed the
entire record and denied relief in January 1997. The Georgia Supreme Court denied
his application for a certificate of probable cause to appeal (“CPC application”) in
2000. This Court denied certiorari. Conner v. Head, 533 U.S. 932 (2001).
1

 Although having been incarcerated for 19 years, Petitioner filed a second state
collateral attack in 2001, raising only a claim of “intellectually disability,” not an
Eighth Amendment claim on the length of his incarceration. The state habeas court
dismissed this petition as successive under O.C.G.A. § 9-14-51. This Court denied
certiorari. Conner v. Head, 537 U.S. 908, reh’g denied, 537 U.S. 1069 (2002).
Meanwhile, Petitioner submitted a federal habeas corpus petition in the Southern
District of Georgia in 2001 raising his intellectual disability claim and a claim of
ineffective assistance of counsel. Relief was denied in November 2009.
In the first appearance of the case in the Eleventh Circuit, where Petitioner had
been granted a certificate of appealability (“COA”) the circuit court found that the
intellectual disability claim had not been heard on the merits in the state courts and
declined to find there was an adequate state bar to preclude federal review of the claim.
Conner v. Hall, 645 F.3d 1277, 1292-94 (11th Cir. 2011). The Court vacated the
judgment and remanded the entire case for further proceedings consistent with its
opinion, including whether Petitioner was entitled to discovery and a federal hearing
on the intellectual disability claim since this claim had not been heard on the merits by
the state court. Id.
On remand, the district court granted limited discovery and ordered a federal
evidentiary on the intellectual disability claim. See Conner v. GDCP Warden, 784

2

 F.3d 752 (11th Cir. 2015), cert. denied, ___ U.S. ___, 136 S.Ct. 1246, reh’g denied, ___
U.S. ___, 136 S.Ct. 1538 (2016). A two-day federal hearing was held in May 2013.1
At the conclusion of the hearing, after oral argument from the parties, the district
court made extensive oral findings of fact and conclusions of law on the record, and
denied relief.
After briefing and oral argument, the Eleventh Circuit affirmed the denial of
relief on all three grounds in April 2015. Conner, 784 F.3d at 761, 766, 769. This
Court denied certiorari review. Conner, 136 S. Ct. at 1246, 1538.
On June 24, 2016, the trial court entered an order, scheduling the seven-day
window for Petitioner’s execution to open at noon on July 14, 2016, and close at noon
on July 21, 2016.
On June 23, 2016, Petitioner returned to Butts County, where he had filed a
third state habeas in the intervening time period while his federal habeas petition was
pending and filed an amendment. On June 27, 2016, Petitioner filed a second
amendment to his third petition alleging for the first time that it would double jeopardy
and cruel and unusual punishment under the Eighth Amendment of the federal

1

Evidence presented about Petitioner’s criminal history included a 1971 Dodge
County involuntary manslaughter conviction, arising from a guilty plea entered under a
malice murder indictment, convictions for burglary and criminal damage to property,
and a second murder conviction from Dodge County, arising from a guilty plea entered
in August 1984 after the Telfair County trial, as the district court noted a pages 11-13
of its oral ruling.
3

 Constitution to execute him due to the length of time he has been on “death row.”
On July 6, 2016, the habeas court entered an order in which it dismissed the third
petition, denied relief and denied the motion for stay of execution. Petitioner filed a
notice of appeal that same day.
On July 13, 2016, the Georgia State Board of Pardons and Paroles denied
Petitioner’s request for clemency.
On Thursday, July 14, 2016, the Georgia Supreme Court denied his CPC
application and motion for stay.
Also on Thursday, July 14, 2016, Petitioner filed a successive federal habeas
petition, raising the same claims he now raises before this Court - his death sentence
was unconstitutional based on his 34 years in prison. The district court found the
claim was successive, and in the alternative found the claim to be without merit.
Late on July 14, 2016, Petitioner filed a successive federal habeas petition
raising his Eighth and Fifth Amendment claims. The district court found it was
successive, not properly filed; and alternatively, without merit.
On request to appeal, the Eleventh Circuit found that a certificate of
appealability (COA) may only issue form the denial of a § 2254 petition “if the
application has made a substantial showing of a denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). On this basis, the Eleventh Circuit found Petitioner was not
entitled to a COA.
4

 III. REASONS FOR SUMMARILY DENYING THE WRIT
Petitioner is seeking certiorari review on issues that: are moot (are Lackey
claims only ripe when an execution is set); seeking advisory opinions (whether the
Lackey claim could be raised as a § 1983 claim); not raised below (Question Three
(p. ii)); and not in conflict with this Court’s precedent (the denial of COA).
Certiorari review should be denied.
A.

WHETHER PETITIONER’S CLAIM WAS RIPE PRIOR TO THE
SETTING OF HIS EXECUTION IS.
Petitioner first requests certiorari review, asking this Court to issue an

advisory opinion on when his Eighth and Fifth Amendment claims concerning the
length of time he has been on death row became ripe and whether should as be
raised as habeas claims or a § 1983 claim. As the Eleventh Circuit found that his
claim was ripe, but not meritorious, as did the district court, this issue is moot.
Certiorari review is not warranted.
B.

THE ELEVENTH CIRCUIT PROPERLY DENIED COA.
Petitioner also seeks certiorari review of the circuit court’s disposition of his

Eighth and Fifth Amendment excessive delay claims. These provide no basis for
the grant of certiorari as there is no clearly established precedent from this Court
supporting Petitioner’s position and this Court has never suggested that time on
death row prior to execution violates the Double Jeopardy Clause. The court’s
decision is in accord with this Court’s precedent. There is no clearly established
5

 precedent supporting Petitioner’s position and it was a proper denial of a certificate
of appealability.
C.

THE THIRD QUESTION IS NEW.
This Court should decline to grant certiorari on his third question as it was not

raised below. In the third question, he claims for the first time that his execution
would offend the Fifth, Eighth and Fourteenth Amendment because he has been a
“model inmate under the harsh conditions” of death row and there is allegedly no
legitimate goal in implementing his death sentence. As this Court has held:
We do not generally entertain arguments that were not raised below
and are not advanced in this Court by any party, see United Parcel
Service, Inc. v. Mitchell, 451 U.S. 56, 60, n. 2 (1981); Bell v. Wolfish,
441 U.S. 520, 532, n. 13 (1979); Knetsch v. United States, 364 U.S.
361, 370 (1960).
Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2776 (2014).

6

 CONCLUSION
For the above and foregoing reasons the writ of habeas corpus filed in this
case and the request for stay should be summarily denied.
Respectfully submitted,
SAMUEL S. OLENS
Attorney General

551540

BETH BURTON
Deputy Attorney General

027500

s/Paula K. Smith
662160
PAULA K. SMITH
Senior Assistant Attorney General

Please serve:
PAULA SMITH
40 Capitol Square, S. W.
Atlanta, Georgia 30334-1300
(404) 656-3351
psmith@law.ga.gov

7

 CERTIFICATE OF SERVICE
I do hereby certify that I have this day served the within and foregoing
Pleading, prior to filing the same, by emailing, properly addressed upon:
Brian Kammer
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, GA 30307

This 14th day of July, 2016.

s/Paula K. Smith________________
PAULA K. SMITH
Senior Assistant Attorney General