No. 16-________
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2016
_________________________________________________________
_________________________________________________________
JOHN WAYNE CONNER,
Petitioner,
-vERIC SELLERS, Warden
Georgia Diagnostic Prison,
Respondent.
__________________________________________________________
__________________________________________________________
PETITION FOR A WRIT OF CERTIORARI TO
THE ELEVENTH CIRCUIT COURT OF APPEALS
AND/OR
PETITION FOR WRIT OF HABEAS CORPUS
IN A CAPITAL CASE
__________________________________________________________
__________________________________________________________
Brian S. Kammer (Ga. 406322)
Marcia A. Widder (Ga. 643407)*
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, Georgia 30307
404-222-9202
Fax: 404-222-9212
grc@garesource.org
COUNSEL FOR PETITIONER,
JOHN WAYNE CONNER
* Counsel of Record

 QUESTIONS PRESENTED – CAPITAL CASE
(Execution Scheduled for TODAY, July 14, 2016, at 7:00 p.m.)
Petitioner was sentenced to death 34 years ago for killing a friend during an unplanned,
drug- and alcohol-fueled beating provoked by the victim’s lewd remark about Petitioner’s
girlfriend. The case languished in state court through court inaction and the State’s successful
efforts to prevent Petitioner from obtaining the expert evaluations required by state law to establish
his right to a jury trial on the issue of his intellectual disability. During this period, critical
witnesses disappeared through death or memory loss, and important records were lost or destroyed.
After the State obtained a warrant for his execution, Petitioner unsuccessfully challenged the
constitutionality of implementing his death sentence under the Eighth Amendment and Double
Jeopardy Clause in state and federal court. The federal courts dismissed his petition as a second
or successive petition barred by 28 U.S.C. § 2244, giving rise to the following important questions:
1. Do claims that a condemned inmate’s extraordinarily long period of death row
incarceration has rendered his execution excessive and unjustified punishment under
the Eighth Amendment and/or prohibited multiple punishment in violation of the
Double Jeopardy Clause become ripe only when a warrant for execution has finally
been issued after lengthy delay?
2. If so, may a condemned inmate file suit in federal district court to raise such claims
pursuant to 28 U.S.C. § 2254, under the theory that the claims did not accrue and thus
could not have been brought before an execution date was set, or pursuant to 42 U.S.C.
§ 1983, as suggested by the decision in Panetti v. Quarterman, 551 U.S. 930, 943-47
(2007), and Justice Steven’s observations in Johnson v. Bredesen, 558 U.S. 1067, 1070
(2009) (statement respecting denial of certiorari)? Or, must such claims instead be
raised in an initial habeas petition, before their factual support has come to pass, else
be barred from federal court review by the stringent limitations on second and
successive habeas petitions set forth in 28 U.S.C. § 2244?
3. Will Petitioner’s execution offend the Fifth, Eighth and Fourteenth Amendments to the
United States Constitution given that Petitioner has served as a model inmate under the
harsh conditions of Georgia’s death row for 34 years already and no legitimate
penological goals will be served by the gratuitous implementation of the death sentence
at this point?
ii

 TABLE OF CONTENTS
TABLE OF CONTENTS............................................................................................................... iii 
TABLE OF AUTHORITIES .......................................................................................................... v 
OPINIONS BELOW....................................................................................................................... 4 
JURISDICTION ............................................................................................................................. 4 
CONSTITUTIONAL PROVISIONS INVOLVED........................................................................ 5 
STATUTORY PROVISIONS INVOLVED................................................................................... 5 
STATEMENT OF THE CASE....................................................................................................... 7 
A. 

Statement of Facts ..................................................................................... 7 

B. 

Procedural History ..................................................................................... 7 

REASONS WHY THE PETITION SHOULD BE GRANTED................................................... 16 
ARGUMENT ................................................................................................................................ 16 
I. 

II. 

This Court Should Grant Certiorari To Determine Whether Claims Alleging
That A Condemned Inmate’s Execution, Due To Extraordinary Delay, Will
Violate The Eighth Amendment And/Or Double Jeopardy Become Ripe Only
When A Likely Execution Date Is Set And If So, Whether Such Claims May
Properly Be Filed In Federal District Court Under 28 U.S.C. § 2254 And/Or
As Violations Of 42 U.S.C. § 1983. ............................................................. 16 
A. 

Mr. Conner’s claims could not meaningfully have been raised before the
State of Georgia set an near-certain execution date and accordingly he
should not be required to have raised them years ago before the facts and
legal theories supporting them came into existence ................................ 17 

B. 

May a condemned inmate raise the claim that his execution will violate
the constitution due to excessive delay in its implementation through filing
a second-in-time federal habeas corpus petition in district court and/or by
filing a civil action alleging the violation of 42 U.S.C. § 1983. .............. 19 
This Court Should Grant Certioari To Consider The Merits Of Mr. Conner’s
Claims That The Extraordinary Delay In Implementing His Death Sentence
Renders It Unconstitutional Under The Eighth Amendment And Double
Jeopardy Clauses. ......................................................................................... 20 

iii

 A. 

Executing Mr. Conner After He Has Spent 34 Years Under a Death
Sentence Constitutes A Violation Of The Eighth Amendment’s
Prohibition Against Cruel And Unusual Punishment. ............................. 21 

1.  A Delay of 34 Years Between The Imposition of A Death Sentence and
Execution Renders Nonexistent Any Arguable Deterrent or Retributive
Effect And, To Top The Punishment of Lengthy Incarceration With
Execution Would Inflict Wholly Disproportionate Punishment Under
the Eighth Amendment. ...................................................................... 23 
2.  Mr. Conner Has Been Subjected to More Than Three “Decades of
Especially Severe, Dehumanizing Conditions of Confinement.” ....... 27 
B. 

Mr. Conner’s Execution Would Be Unconstitutionally Duplicative Of And
Additional To The Punishment Already Inflicted On Him In Violation Of
The Fifth Amendment Prohibition Against Double Jeopardy. ................ 30 

CONCLUSION ............................................................................................................................. 34 
CERTIFICATE OF SERVICE ..................................................................................................... 35 

iv

 TABLE OF AUTHORITIES
State Cases
Conner v. State, 251 Ga. 113, 115 (1983) ......................................................................................... 7, 30
Fleming v. Zant, 259 Ga. 687 (1989) .............................. ................................................................. passim
Hulett v. State, 296 Ga. 49, 73-74 (2014)........................ ................................................................. 14
Jones v. State, 249 Ga. 605, 605 (1982) ............................................................................................ 24
Jones v. State, 273 Ga. 231, 233 (2000) ............................................................................................ 14
Presnell v. State, 274 Ga. 246 (2001)................................................................................................ 25
Turpin v. Hill, 269 Ga. 302 (1998) .................................................................................................... 10
Federal Cases
Allen v. Ornoski, 435 F.3d 946, 957 (9th Cir. 2006) ......................................................................... 19
Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985) ............................................................... 12
Atkins v. Virginia, 536 U.S. 304 (2002) ............................................................................................ 10
Burton v. Stewart, 549 U.S. 147, 154 (2007) .................................................................................... 18
Ceja v. Stewart, 134 F. 3d 1368 (CA9 1998) .................................................................................... 9
Chambers v. Bowersox, 157 F.3d 560, 568 (8th Cir. 1998) .............................................................. 19
Conner v. GDCP Warden Conner, 784 F.3d 752, 766 (11th Cir. 2015)........................................... 3.12
Conner v. Georgia, 464 U.S. 865, rehearing denied, 464 U.S. 1005 (1983).................................... 7
Conner v. Hall, 645 F. 3d 1277, 1292 (11th Cir. 2011) cert. denied, 136 S. Ct. 1246 (2016) .......... 3,

10,

21
Conner v. Head, 533 U.S. 932 (2001), rehearing denied, 533 U.S. 970 (2001)............................... 8
Conner v. Head, 537 U.S. 908 (2002). .............................................................................................. 9
Conner v. Humphrey, 136 S. Ct. 1246 (2016), rehearing denied, 2016 U.S. LEXIS 2289 (2016) .. 3, 13
v

 Foster v. Florida, 537 U.S. 990, 992 (2002) ..................................................................................... 25
Johnson v. Bredesen, 558 U.S. 1067, 1070 (2009) ........................................................................... ii, 18,
24,
Jones v. Ga. Diagnostic & Classification Prison Warden, 653 F.3d 1171, 1174 (11th Cir. 2014) .. 24
Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989) ......................................................................... 24
Knight v. Florida, 528 U.S. 990, 993 (1999) .................................................................................... 25
Lackey v. Texas, 514 U.S. 1045, 1045-47 (1995) ............................................................................ passim
Miller-El v. Cockrell, 537 U.S. 322, 337 (2003) ............................................................................... 17
Panetti v. Quarterman, 551 U.S. 930, 943-47 (2007) ....................................................................... passim
Presnell v. Zant, 959 F.2d 1524 ....................................................................................................... 25
Rogers v. State, 256 Ga. 139, 139 n.1 (1986).................................................................................... 25
Stewart v. United States, 646 F.3d 856, 861 (11th 2011).................................................................. 14
Thompson v. McNeil, 556 U.S. 1114, 1115 (2009) ...........................................................................
Wilson v. State, 250 Ga. 630 (1983) .................................................................................................. 25
Statutes
28 U.S.C. § 1343(a)(3) ...................................................................................................................... 15
28 U.S.C. § 2244(b)(3)(A) ................................................................................................................ 14
28 U.S.C. ' 2254 ............................................................................................................................... passim
42 U.S.C. § 1983 ............................................................................................................................... passim
Constitutional Provisions
U.S. Const. amends. V, VI, VIII, XIV .............................................................................................. passim

vi

 No. 16-________
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2016
_________________________________________________________
_________________________________________________________
JOHN WAYNE CONNER,
Petitioner,
-vERIC SELLERS, Warden
Georgia Diagnostic Prison,
Respondent.
__________________________________________________________
__________________________________________________________
PETITION FOR A WRIT OF CERTIORARI TO
THE ELEVENTH CIRCUIT COURT OF APPEALS
AND/OR FOR ORIGINAL WRIT OF HABEAS CORPUS
__________________________________________________________
__________________________________________________________
Petitioner, John Wayne Conner, respectfully petitions this Court to issue a Writ of
Certiorari to review the judgment of the Eleventh Circuit Court of Appeals, entered in the above
case on July 14, 2016. Alternatively, Mr. Conner seeks an original writ of habeas corpus in his
capital case.
INTRODUCTION
The State of Georgia intends to execute Mr. Conner tonight, 34 years to the day that he
received his death sentence. By virtue of this extraordinary delay between the imposition of
sentence and its implementation, the State of Georgia has already exacted from Mr. Conner what
amounts to a life sentence under the severe conditions of isolation and privation that characterize

 incarceration on Georgia’s death row. This delay, not attributable to Mr. Conner in any relevant
way, renders implementation of the death sentence both excessive, cruel and unusual under the
Eighth Amendment and a second punishment for the same offense prohibited by the Double
Jeopardy Clause.
Mr. Conner has presented his claims to every available court and each has rejected his
claims as procedurally barred or non-cognizable. The State’s Board of Pardons and Paroles has
rejected his plea for clemency. This Court, truly, is Mr. Conner’s last resort to prevent his
unconstitutional execution.
Mr. Conner has effectively suffered the punishment of life imprisonment over the course
of the 34 years he has waited to be executed, living under the extraordinarily harsh conditions of
death row while his appeals were considered by the courts. His case took this extraordinarily long
period of time to wend its way through the courts due to no fault of Mr. Conner’s. To the contrary,
the fault falls entirely on the State of Georgia, through its judiciary and prosecutors.
Mr. Conner’s initial state habeas action took over 15 years to complete. At the time, the
State of Georgia provided Mr. Conner neither counsel nor funding to conduct complicated capital
habeas corpus litigation. Instead, Mr. Conner was assisted in state post-conviction proceedings by
a young and inexperienced volunteer attorney from out-of-state, Billy Nolas, who repeatedly asked
the state habeas court for funding for investigative and expert assistance, and was each time denied
any funds. After the close of evidence in the initial state habeas proceeding, the case sat in superior
court for approximately 12 years, during which time it was transferred among various judges, who
refused Mr. Nolas’s several requests to reopen the evidence to present additional claims and proof.
See Affidavit of Billy H. Nolas, at ¶¶15-17 (attached as App. 15 to Mr. Conner’s Petition for Writ
of Habeas Corpus, as amended, in Conner v. Sellers, Butts Co. Superior Court Case No. 2013-V-

2

 162). It was not until January 1, 1997, that the state habeas court issued its final order. Three and
a half years later, on September 11, 2000, the Supreme Court of Georgia denied review.
Following the completion of Mr. Conner’s initial state habeas action, Respondent
thereafter, aided by the state habeas court’s rulings, delayed the development of Mr. Conner’s
intellectual disability claim for well over a decade. Until 2013, because of Respondent’s
intransigence and the state habeas court’s refusal to accord Mr. Conner expert access in order to
substantiate his claim, Mr. Conner had never been evaluated by an independent mental health
expert. Throughout state and federal habeas proceedings, for over a decade, Respondent, with the
state court’s complicity, aggressively and effectively blocked Mr. Conner’s diligent efforts to gain
access to mental health experts who could substantiate his claim of intellectual disability or any
other mental impairments. The Eleventh Circuit Court of Appeals recognized this injustice and
remanded Mr. Conner’s case for further evidentiary development. Conner v. Hall, 645 F. 3d 1277,
1292 (11th Cir. 2011). That evidentiary development upon remand, though it ultimately failed to
persuade the federal district court of Mr. Conner’s intellectual disability, was nonetheless
sufficient to establish that intellectual disability was a “permissible view[] of the evidence,”
Conner v. GDCP Warden, 784 F.3d 752, 766 (11th Cir. 2015), cert. denied, 136 S. Ct. 1246 (2016),
a finding that should have ensured Mr. Conner a jury trial on the issue of his intellectual disability
under Georgia law.
Mr. Conner, on the other hand, has not delayed this case in any fashion. He has simply
initiated and pursued legitimate legal proceedings in an effort to vindicate his constitutional rights
and to comply with the strictures imposed by federal habeas law. Indeed, but for the delays
occasioned by the superior court’s lackadaisical approach and Respondent’s obstructive tactics,
there is a more than reasonable likelihood that Mr. Conner would years ago have obtained a jury

3

 trial on the issue of his intellectual disability and that the case would have been resolve in a way
that removed the death sentence. Instead, the state habeas court, at Respondent’s behest, refused
to allow Mr. Conner access to the very evidence needed to prove his claim and then, after denying
relief for lack of proof, ruled he had defaulted the claim when he later returned to court with the
necessary evidence he had finally obtained.
On these facts, it would violate the Fifth, Eighth and Fourteenth Amendments to execute
Mr. Conner after so lengthy a time on death row (particularly given his blamelessness and the
State’s culpability in causing the delay, and the degree to which Mr. Conner has been harmed by
delay).

His execution would inflict needless pain and suffering furthering no legitimate

penological interest on Mr. Conner after he has already received 34 years of exceptionally harsh
punishment on death row. Without this Court’s intervention, Mr. Conner will suffer an execution
our federal constitution forbids.
OPINIONS BELOW
The decision of the Eleventh Circuit Court of Appeals, entered July 14, 2016, denying
Petitioner’s appeal from the denial of habeas corpus relief, is attached as Appendix A. The federal
district court decision affirmed by the Eleventh Circuit Court of Appeals in its denial of relief is
on July 14, 2016, is attached hereto as Appendix B. The underlying state habeas court order
denying relief on July 6, 2016, is unreported and attached hereto as Appendix C. The Georgia
Supreme Court’s July 14, 2016, order denying discretionary review of the state habeas court’s
decision, with two justices dissenting, is unreported and attached hereto as Appendix D.
JURISDICTION
The jurisdiction of this Court is invoked under 28 U.S.C. § 1254 (1), 2241, 1651(a) and
Article III of the United States Constitution. This Court’s certiorari jurisdiction is invoked to
4

 review the judgment of the Eleventh Circuit Court of Appeals denying Petitioner’s appeal from
the dismissal of his federal habeas action, which was entered on July 14, 2016, as Mr. Conner
asserts a deprivation of rights secured by the Constitution of the United States. See Appendix A.
As required by Rule 20.4 and 28 U.S.C. §§ 2241 and 2242, Mr. Conner states that he the
district court rejected his claims on the ground it lacked jurisdiction under 28 U.S.C. § 2244(3)(A)
and the Eleventh Circuit affirmed that decision. Mr. Conner exhausted his state remedies on the
questions raised herein when the state habeas court dismissed them as procedurally barred and
meritless (Appendix C) and the Georgia Supreme Court denied his Application for Certificate of
Appeailability (Appendix D). The Georgia Board of Pardons and Paroles denied Mr. Conner’s
application for clemency on July 13, 2016 (Appendix E).
CONSTITUTIONAL PROVISIONS INVOLVED
This petition invokes the Fifth, Eighth, and Fourteenth Amendments to the United States
Constitution. “[N]or shall any person be subject for the same offense to be twice put in jeopardy
of life or limb . . . .” U.S. Const. amend. V. “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishment inflicted.” U.S. Const. amend. VIII. “No state
shall make or enforce any law which shall abridge the privileges or immunities of citizens of the
United States, nor shall any State deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV §1.
STATUTORY PROVISIONS INVOLVED
28 U.S.C. § 2244, in pertinent part, provides:
(b) (1) A claim presented in a second or successive habeas corpus application under
section 2254 that was presented in a prior application shall be dismissed.

5

 (2)

A claim presented in a second or successive habeas corpus application under

section 2254 that was not presented in a prior application shall be dismissed unless—
(A)

the applicant shows that the claim relies on a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that
was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered
previously through the exercise of due diligence; and
(ii)

the facts underlying the claim, if proven and viewed in light of the
evidence as a whole, would be sufficient to establish by clear and
convincing evidence that, but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.

(3)(A) Before a second or successive application permitted by this section is filed in the
district court, the applicant shall move in the appropriate court of appeals for an order authorizing
the district court to consider the application.

28 U.S.C. § 2254, in pertinent part, provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.

6

 STATEMENT OF THE CASE
A.

Statement of Facts

Petitioner, John Wayne Conner, is currently under sentence of death in Georgia for killing
his friend, J.T. White, during an unplanned, drug- and alcohol-fueled beating provoked by Mr.
White’s statement that he wanted to have sex with Petitioner’s girlfriend.
B.

Procedural History

A Telfair County, Georgia jury found Mr. Conner guilty of one count of murder, one count
of robbery and one count of vehicle theft on July 14, 1982. Later that same day, the jury sentenced
Mr. Conner to death for the murder. On May 24, 1983, the Supreme Court of Georgia affirmed
the murder and theft convictions, as well as the death sentence, but vacated the robbery conviction
due to lack of evidence. Conner v. State, 251 Ga. 113, 115 (1983). A timely-filed motion for
reconsideration was denied on June 28, 1983. This Court denied certiorari review on October 3,
1983. Conner v. Georgia, 464 U.S. 865, rehearing denied, 464 U.S. 1005 (1983).
Thereafter, Mr. Conner timely filed a petition for writ of habeas corpus in the Superior
Court of Butts County on March 23, 1984. He was represented by Billy Nolas, a recent law school
graduate who had volunteered to represent Mr. Conner pro bono, but who had few resources with
which to investigate and litigate the petition.1 Hearings were held in 1984. Although Mr. Nolas
on several occasions moved the court for funds to hire mental health experts to investigate “the

1

The Georgia Resource Center, which was created to provide resources and assistance to
lawyers in capital post-conviction proceedings, in addition to providing direct representation, was
not yet in existence, and there were no other entities providing such assistance.
7

 mitigating significance of petitioner’s mental incapacity,”2 such funds for expert assistance were
denied and the evidentiary record was closed.
The state habeas action was passed among several judges before it was finally adjudicated
about 13 years after it had been filed. Originally, Judge English presided over the case, but it was
transferred to different judges before being assigned to Judge Allen B. Keeble, who denied relief
in an order entered on January 6, 1997. See Final Order of Jan. 6, 1997, in Conner v. Zant, Butts
Co. Case No. 6335.
Mr. Conner filed a timely Application for Certificate of Probable Cause to Appeal (“CPC”)
in the Georgia Supreme Court (Case No. S97R1871). In CPC proceedings, Mr. Conner again
raised claims regarding his intellectual impairment and specifically requested a remand in light of
the Georgia Supreme Court’s decision in Fleming v. Zant, 259 Ga. 687 (1989), which had issued
about five years after the close of proceedings in state habeas court. See April 28, 2000 Reply to
Response in Opposition to CPC (Case No. S97R1871) at 22.
On September 11, 2000, the Georgia Supreme Court denied Mr. Conner’s Application for
Certificate of Probable Cause to Appeal, over the dissent of Justice Sears. Mr. Conner filed a
timely motion for reconsideration on September 21, 2000, which was denied on November 14,
2000. This Court denied the petition for writ of certiorari on June 25, 2001, Conner v. Head, 533
U.S. 932 (2001), and denied rehearing on August 27, 2001, Conner v. Head, 533 U.S. 970 (2001).
On October 3, 2001, Mr. Conner filed a second state habeas petition raising the claim that
he is intellectually disabled and seeking a mental health evaluation in order to substantiate a prima
facie allegation of intellectual disability in support of his request for a jury trial remand under

2

See September 13, 1984 Motion for Funds (Case No. 6335), at 4.
8

 Fleming. He supported his claim with inter alia the affidavits of teachers and school records
documenting early life cognitive impairment. See Butts Co. Superior Court Case No. 2001-V-692.
Although Fleming expressly states that “sufficient credible evidence of [intellectual disability” . .
. must include at least one expert diagnosis of mental retardation,” Judge E. Byron Smith, at
Respondent’s behest, denied the request for expert access3 and denied the petition without an
evidentiary hearing on October 26, 2001. See Oct. 26, 2001 Final Order in Conner v. Head, Butts
Co. Superior Court Case No. 2001-V-692 at 2. Mr. Conner was thereby precluded from satisfying
Fleming’s requirement that he provide “at least one expert diagnosis of mental retardation”4 in
order to make out a prima facie case of intellectual disability. Mr. Conner is the only Fleming
claimant to be denied expert access and a remand for jury trial on a colorable claim of intellectual
disability in the Georgia courts.
On January 25, 2002, Mr. Conner filed a CPC application in the Supreme Court of Georgia,
which denied CPC on March 25, 2002. Mr. Conner’s timely filed motion for reconsideration was
denied on April 12, 2002. He filed a Petition for Writ of Certiorari to the Georgia Supreme Court,
which this Court denied on October 7, 2002. Conner v. Head, 537 U.S. 908 (2002).
In accordance with 28 U.S.C. § 2244(d), Mr. Conner filed for habeas corpus relief in federal
district court within one year of the final denial of his first Application for CPC by the Georgia
Supreme Court in order to meet the statute of limitations. The federal petition was filed on
November 13, 2001.

3

The Georgia Diagnostic Prison does not allow experts access to prisoners for evaluation
purposes without a court order.
4

Fleming, 259 Ga. at 691.
9

 On June 20, 2002, this Court held that the Eighth Amendment to the U.S. Constitution
categorically prohibits the execution of intellectually disabled individuals. Atkins v. Virginia, 536
U.S. 304 (2002).
On March 31, 2004, Mr. Conner filed a motion for discovery on his intellectual disability
claim in his federal habeas action, including a request for expert access for purposes of evaluation.
The district court denied the motion in an order issued September 8, 2004, finding that Mr.
Conner’s claim that he is exempt from the death penalty because he is intellectually disabled was
procedurally defaulted per Judge Smith’s order in state court in 2001.
The district court thereafter denied the totality of Mr. Conner’s petition for habeas corpus
on November 6, 2009, but granted a certificate of appealability on the issues of whether or not Mr.
Conner’s claim of intellectual disability was procedurally defaulted and whether his trial counsel
had rendered ineffective assistance during the mitigation stage of his trial.
Mr. Conner filed a timely appeal before the United States Court of Appeals for the Eleventh
Circuit. The Eleventh Circuit panel heard argument in Mr. Conner’s case on October 14, 2010,
and, on July 7, 2011, granted a remand of his case to the district court. Specifically, the Eleventh
Circuit held that Georgia’s procedural default rule was an inadequate bar to Mr. Conner’s
intellectual disability claim because virtually every other similarly situated petitioner (i.e., every
other Fleming claimant raising an intellectual disability claim in a successive petition) in Georgia
had obtained permission for expert access and ultimately an intellectual disability remand under
Fleming.

Conner v. Hall, 645 F. 3d 1277, 1290 (11th Cir. 2011) (hereinafter Conner I).

Specifically, the court noted that:
[T]he Georgia Supreme Court held in Turpin v. Hill, [269 Ga. 302 (1998)], that a
mental retardation claim raised by a capital habeas petitioner in a state habeas
petition cannot be procedurally defaulted as a matter of state law.

10

 Id. at 1289.
On remand, the district court issued orders permitting expert evaluation at the Georgia
Diagnostic Prison regarding Mr. Conner’s intellectual disability claim.

As a result of the

evidentiary development in federal district court, Mr. Conner was able to amass substantial
evidence, previously unavailable due to the severe resource restrictions on pro bono counsel. The
remand to the district court allowed Mr. Conner finally to obtain expert evaluations of Mr.
Conner’s cognitive abilities and, at an evidentiary hearing, Mr. Conner was able to adduce
substantial, previously unavailable evidence of his significant intellectual impairment, intellectual
disability, and the deleterious psychological impact (corroborated by the 1982 CSH records) of an
upbringing marred by chronic violence and trauma. See, e.g., Federal Petition Exhibits 2-7 (reports
of Drs. Beck, Greenspan, Crown, Agharkar); Exhibits 8-9 (testimony of Drs. Beck, Greenspan,
Crown, Agharkar). This and additional evidence, credited by both party’s experts,5 substantiates
Mr. Conner’s claims that he is cognitively impaired at least to the point of having borderline
intellectual functioning and that his trial counsel rendered prejudicially deficient performance in
failing to investigate and present mitigating evidence at the penalty phase of his capital trial. See
the extensive discussion in Mr. Conner’s state habeas petition, as amended (Federal Petition
Exhibit 10), at § II (B-D).
Only after the district court provided Mr. Conner the opportunity to obtain the expert
evaluations of Drs. Beck, Greenspan, Crown, and Agharkar was Mr. Conner able to satisfy

5

Even Respondent’s experts found that Petitioner is intellectually impaired in that he has
borderline intellectual functioning. See Federal Petition, Exhibit 9 at 541 (testimony of Dr.
Matthew Norman). Respondent’s expert Dr. Glen King explicitly credited affidavit and expert
testimony describing Petitioner’s horrific upbringing and acknowledged that the environment in
which Petitioner was raised was disturbing, traumatic and not conducive to healthy development.
Id. at 510.
11

 Georgia’s requirements for a Fleming remand for jury trial on intellectual disability by submitting
“at least one expert diagnosis of mental retardation.” Fleming, 259 Ga. at 691. Accordingly, Mr.
Conner filed a third state habeas action in Butts County Superior Court on March 5, 2013, initially
raising the single claim that Mr. Conner is intellectually disabled and entitled to a remand under
Fleming for a jury trial on the issue of intellectual disability.
The Butts County Superior Court, at Respondent’s request, ordered the state habeas case
held in abeyance pending the completion of the federal habeas proceedings.
The federal district court conducted an evidentiary hearing on May 7-8, 2013. On May 10,
the court heard oral arguments and issued a ruling from the bench denying Mr. Conner’s
intellectual disability claim, after refusing to allow the parties to submit briefing. The court
adopted the rationale of the court’s neurologist who testified that he “kn[ew] [intellectual
disability] when [he] s[aw] it.” See Conner v. Humphrey, Case No. 3:01-CV-73 (S.D.Ga.), Bench
Ruling, at 48. Shortly thereafter, on June 11, 2013, the court entered a brief written order
incorporating its bench ruling and denying all relief.
Mr. Conner appealed to the U.S. Court of Appeals for the Eleventh Circuit. After briefing
and oral argument, that court affirmed the district court’s ruling, stating:
Because the District Court’s finding that Petitioner is not intellectually disabled is
plausible in light of the entire record, it is not clearly erroneous. “If the district
court’s account of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though convinced that had it
been sitting as the trier of fact, it would have weighed the evidence differently.”).
Finally, where, as here, “there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
Conner v. GDCP Warden Conner, 784 F.3d 752, 766 (11th Cir. 2015) (hereinafter Conner II)
(quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985) (emphasis added)).

12

 Mr. Conner’s timely Petition for a Writ of Certiorari in this Court was denied on February
29, 2016. Conner v. Humphrey, 136 S. Ct. 1246 (2016). Rehearing was denied on April 4, 2016.
Conner v. Humphrey, 2016 U.S. LEXIS 2289 (2016).
After the federal proceeding was completed, Mr. Conner returned to state court and, on
June 23, 2016, filed an amended petition for writ of habeas corpus, augmenting his intellectual
disability claim in light of the factual development that occurred in federal court and seeking to
reopen his earlier ineffective assistance of trial counsel claim in light of intervening law and new,
previously unavailable facts.
On Friday, June 24, 2016, the State of Georgia obtained a warrant setting an execution
window to begin on July 14, 2016 and to end on July 21, 2016. Appendix F. On June 27, 2016,
Mr. Conner amended his pending state habeas petition (Conner v. Sellers, Butts Co. Superior Court
Case No. 2013-V-162) to add the claims now raised in this petition: that his execution, after
serving 34 years under the harsh conditions of Georgia’s death row, will constitute excessive and
unjustified punishment in violation of the Eighth and Fourteenth Amendments (the Lackey claim6);
and that his execution, after already serving what amounts to a life sentence on Georgia’s death
row, will violate double jeopardy.
On July 6, 2016, the Butts County Superior Court denied the state habeas action in its
entirety, ruling in pertinent part that the Lackey and double jeopardy claims “could have [been]
raised in [Mr. Conner’s] prior petitions, and they are barred as successive under O.C.G.A. § 9-1451. Insofar as [Mr. Conner] could not have raised these claims previously, they are without merit.”

6

See Lackey v. Texas, 514 U.S. 1045, 1045-47 (1995) (Memorandum of Justice Stevens
respecting the denial of certiorari).
13

 Order, dated July 6, 2016, at 3-4 (citing Lackey, 514 U.S. 1045; Hulett v. State, 296 Ga. 49, 73-74
(2014); Jones v. State, 273 Ga. 231, 233 (2000)).
Mr. Conner promptly filed a notice of appeal. On July 14, 2016, the Supreme Court of
Georgia denied a Certificate of Probable Cause to Appeal as to the claims raised herein (Case No.
S16W1789).7 Exhibit 12. Justice Nahmias, joined by Justice Benham, dissented from the denial
of CPC and the denial of a stay on ground that there is “arguable merit” to the claim that “under
the specific facts and circumstances of this case, [Mr. Conner’s] execution more than 34 years
after being sentenced to death would qualify as cruel and unusual punishment in violation of the
Eighth Amendment to the United States Constitution.” Id.
Mr. Conner filed a petition for writ of habeas corpus in the District Court for the Southern
District of Georgia raising the Lackey and double jeopardy claims that same day. Although this
was a second-in-time petition, he urged that the court had jurisdiction to hear the case without
circuit-court permission8 under the authority of this Court’s decision in Panetti v. Quarterman,
551 U.S. 930, 943-47 (2007), and the Eleventh Circuit’s decision in Stewart v. United States, 646
F.3d 856, 861 (11th 2011). See also Johnson v. Bredesen, 558 U.S. 1067, 1070 (2009) (Statement
of Justice Stevens, with whom Justice Breyer joins, respecting the denial of certiorari) (“A Lackey
claim, like a claim that one is mentally incompetent to be executed, should, at the very least, not
accrue until an execution date is set.”) (citations omitted). Those cases recognize “a small subset
of unavailable claims that could not reasonably be categorized as “successive” under 28 U.S.C. §
2244 and accordingly may properly be brought in a district court without first authorization from

7

The day before, on July 13, 2016, the Georgia Board of Pardons and Parole denied Mr.
Conner’s clemency application.
8

See 28 U.S.C. § 2244(b)(3)(A).
14

 the circuit court. Mr. Conner alternatively posited that jurisdiction lay under 28 U.S.C. §
1343(a)(3) as the claims involved the violation of his constitutional rights under color of state law
in violation of 42 U.S.C. § 1983. See Johnson, 558 U.S., at 1070 (Statement of Justice Stevens
respecting the denial of certiorari) (noting that the lower court’s decision to construe Lackey claim
brought as a § 1983 action as a successive habeas petition “is a close question”). Mr. Conner
requested that the district court, should it conclude it lacked jurisdiction under 28 U.S.C. § 2254,
transfer the case to the District Court for the Middle District of Georgia (and that the Commissioner
for the Georgia Department of Corrections, Homer Bryson, be added as a party defendant).
The district court, by order dated July 14, 2016 (Appendix B), dismissed the petition for
lack of jurisdiction. The court acknowledged that a second-in-time habeas petition is not always
governed by the strictures of 28 U.S.C. § 2244, and that Panetti v. Quarterman, 551 U.S. 930, 94547 (2000) provided a model for such claims. Nonetheless, it concluded that because it “has not
found a decision that extends Panetti’s holding to encompass claims challenging an execution
under the Fifth or Eighth Amendments as claimed herein,” it was “reluctant to do so without
precedent, noting as it must that the Eleventh Circuit has cautioned that the Panetti exception is a
narrow one.” Order, dated July 14, 2016, in Conner v. Sellers, S.D.Ga. No. 3:16-cv-00057, at 3.
The Eleventh Circuit by Order dated July 14, 2016 (Appendix A) construed Mr. Conner’s
appeal as an application for a certificate of appealability (COA) and denied COA. In doing so, it
failed to apply its own precedent recognizing that claims such as Mr. Conner’s may be filed
directly in the district court, see Stewart v. United States, 646 F.3d 856 (11th 2011), and that a
district court’s dismissal of a habeas corpus petition as successive is an appealable final order, see
Bolin v. Sec’y Fla. Dep’t of Corr., 628 Fed. Appx. 728 730 (11th 2016) (citing Hubbard v.
Campbell, 379 F.3d 1245, 1247 (11th Cir. 2004)). The court denied COA on the ground that this

15

 Court has never held that a condemned inmate’s extraordinarily lengthy delay between imposition
of his death sentence and execution of sentence has Eighth Amendment or Double Jeopardy
implications.
REASONS WHY THE PETITION SHOULD BE GRANTED
Mr. Conner faces imminent execution after the State of Georgia has already exacted 34
years of imprisonment under the extremely harsh conditions of death row. In both state and federal
court, he was told that he should have raised his claims that his execution, following such an
excessively lengthy period of punitive confinement, will violate the Eighth Amendment and
Double Jeopardy Clause long before those claims came to fruition, else waive the right to pursue
them.
This case presents an appropriate vehicle for determining when and how a capital defendant
may raise the claim that an execution under such circumstances will violate his Fifth, Eighth and
Fourteenth Amendment rights. Given that the bulk of the lengthy delay in implementing sentence
in this case is directly attributable to the actions and inactions of the State, through its judiciary
and prosecutors, it is also an appropriate case in which to address the merits of the Eighth
Amendment and double jeopardy claims Mr. Conner here raises.
ARGUMENT
I.

This Court Should Grant Certiorari To Determine Whether Claims Alleging
That A Condemned Inmate’s Execution, Due To Extraordinary Delay, Will
Violate The Eighth Amendment And/Or Double Jeopardy Become Ripe Only
When A Likely Execution Date Is Set And If So, Whether Such Claims May
Properly Be Filed In Federal District Court Under 28 U.S.C. § 2254 And/Or
As Violations Of 42 U.S.C. § 1983.
Both the state and federal courts held that Mr. Conner waived the right to complain that his

execution will violate the Eighth Amendment and the Double Jeopardy Clause because he should
16

 have raised these claims many years ago, before the factual basis for the claims had come into
existence, when he filed his original state and federal habeas corpus petitions. The federal courts,
moreover ruled that the courthouse doors were closed to these claims. The lower courts’ rulings
make it virtually impossible to raise these claims in a fashion that will allow their meaningful
consideration. Mr. Conner respectfully submits that this Court’s guidance regarding the timing
and the mechanism for bringing such claims in federal court is needed.
A.

Mr. Conner’s Claims Could Not Meaningfully Have Been Raised
Before The State Of Georgia Set An Near-Certain Execution Date And
Accordingly He Should Not Be Required To Have Raised Them Years
Ago Before The Facts And Legal Theories Supporting Them Came Into
Existence.

In Panetti v. Quarterman, 551 U.S. 930, 943 (2007), this Court addressed the similar
circumstance of litigating execution incompetence9 and concluded that the identical position
advanced by the lower courts and Respondent in this case would force “conscientious defense
attorneys . . . to file unripe (and, in many instances, meritless) . . . claims in each and every § 2254
application . . . add[ing] to the burden imposed on courts, applicants, and the States, with no clear
advantage to any.” Such a requirement, this Court observed, would be at odds with the AEDPA’s
goals of “further[ing] the principles of comity, finality, and federalism.” Id. at 945 (quoting MillerEl v. Cockrell, 537 U.S. 322, 337 (2003) (internal quotation marks omitted)). As the Court
explained:
An empty formality requiring prisoners to file unripe Ford claims neither respects
the limited legal resources available to the States nor encourages the exhaustion of
state remedies. . . . Instructing prisoners to file premature claims, particularly when
many of these claims will not be colorable even at a later date, does not conserve
judicial resources, “reduc[e] piecemeal litigation,” or “streamlin[e] federal habeas

9

See Ford v. Wainwright, 477 U.S. 399 (1986).
17

 proceedings.” . . . AEDPA’s concern for finality, moreover, is not implicated, for
under none of the possible approaches would federal courts be able to resolve a
prisoner’s Ford claim before execution is imminent. . . . And last-minute filings
that are frivolous and designed to delay executions can be dismissed in the regular
course. The requirement of a threshold preliminary showing, for instance, will, as
a general matter, be imposed before a stay is granted or the action is allowed to
proceed.
Id. at 946-47 (quoting Burton v. Stewart, 549 U.S. 147, 154 (2007) (per curiam) (internal quotation
marks omitted) (additional citations omitted)). The Court refused to adopt a position “that would
require unripe (and, often, factually unsupported) claims to be raised as a mere formality, to the
benefit of no party.” Id. at 947. Rather, a condemned inmate may raise the claim that he is
incompetent to be executed at the time it becomes ripe – when an execution date has been set –
without having first to obtain permission to file a “second or successive” petition from the circuit
court. Id.
The same concerns expressed in Panetti apply here, where the Lackey and double jeopardy
claims were neither ripe nor factually supported prior to the time the state had set an execution
date that was all-but-certain to happen barring court intervention. The claims were not ripe
because, like the claim of Ford incompetence, they do not seek to invalidate the death sentence on
the basis of some flaw in its imposition, but, rather, are forward-looking claims that the act of
implementing the death sentence will itself be a constitutional violation. Indeed, such claims
remain purely theoretical until such time as execution is imminent. Moreover, of necessity, they
are almost certainly factually unsupported until execution draws nigh because it is not until the
passage of time has sufficiently eroded the penological justifications for the death sentence while
increasing the punitive aspects of the long death row wait for the death chamber that these claims
even have factual viability.

18

 Accordingly, as Justice Stevens has explained, “a Lackey claim, like a claim that one is
mentally incompetent to be executed, should, at the very least, not accrue until an execution date
is set.” Johnson v. Bredesen, 558 U.S. 1067, 1070 (2009) (Statement of Justice Stevens, joined by
Justice Breyer, respecting the denial of certiorari). Several courts, however, like the courts below,
have held that habeas petitions must raise factually unsupported, unripe claims in their initial
petitions, else waive the right to raise such claims. See, e.g., Allen v. Ornoski, 435 F.3d 946, 957
(9th Cir. 2006) (“Allen could have brought his Lackey claim in his first habeas petition in 1988,
when he had already been on death row for six years, in his first amended habeas petition, when
he had been on death row for nine years, or at some other point during the course of the proceedings
on his first habeas petition in federal court from 1993 to 2005.”); Chambers v. Bowersox, 157 F.3d
560, 568 (8th Cir. 1998) (agreeing that Lackey claim was procedurally barred as “[n]othing
resembling the Lackey claim was made at trial, on direct appeal, or in postconviction proceedings
following Chambers’s third trial and conviction.”).
B.

May A Condemned Inmate Raise The Claim That His Execution Will
Violate The Constitution Due To Excessive Delay In Its
Implementation Through Filing A Second-In-Time Federal Habeas
Corpus Petition In District Court And/Or By Filing A Civil Action
Alleging The Violation Of 42 U.S.C. § 1983.

“A legal right without a remedy would be an anomaly in the law.” Peck v. Jenness, 48
U.S. 612, 623 (1849). See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 396 (1971) (“[I]t is . . . well settled that where legal rights have been invaded and a
federal statute provides for a general right to sue for such invasion, federal courts may use any
available remedy to make good the wrong done.”) (quoting Bell v. Hood, 327 U.S. 678, 684
(1946)). Surely these rights include a mechanism for obtaining relief.

19

 Justice Stevens observed in Johnson that whether a condemned inmate may bring a § 1983
to raise a Lackey claim was a “close question” and that regardless the procedural vehicle of filing
a second-in-time federal habeas petition in federal court should be available for the reasons set
forth in Panetti. See Johnson, 558 U.S., at 1070.10 Mr. Conner attempted to pursue his rights
through these alternative mechanisms, but was told the courthouse door was closed. Mr. Conner
respectfully submits that this Court should grant certiorari in order to provide guidance to the lower
courts regarding the appropriate procedure for pursuing the Lackey and double jeopardy claims he
has raised.
II.

This Court Should Grant Certioari To Consider The Merits Of Mr. Conner’s
Claims That The Extraordinary Delay In Implementing His Death Sentence

10

As Justice Stevens explained:

Although the Court of Appeals’ treatment of Johnson’s claim as a habeas challenge
is a close question, its decision to apply § 2244(b)(2)’s successive habeas bar is not.
The Sixth Circuit’s decision has the curious effect of forcing Johnson to bring a
Lackey claim prematurely, possibly at a time before it is ripe. Moreover, construing
this claim as the functional equivalent of a habeas action also has the unfortunate
effect of inviting further delay: A petitioner would be compelled to return to state
court to exhaust his Lackey claim in the first instance under 28 U. S. C. §
2254(b)(1). For these reasons, I am persuaded that a Lackey claim, like a claim that
one is mentally incompetent to be executed, should, at the very least, not accrue
until an execution date is set. See Ceja v. Stewart, 134 F. 3d 1368, 1371-1372 (CA9
1998) (Fletcher, J., dissenting); cf. Panetti v. Quarterman, 551 U. S. 930, 945, 127
S. Ct. 2842, 168 L. Ed. 2d 662 (2007).
Johnson, 558 U.S., at 1070 (statement respecting denial of certiorari).
20

 Renders It Unconstitutional Under The Eighth Amendment And Double
Jeopardy Clauses.
A.

Executing Mr. Conner After He Has Spent 34 Years Under a Death
Sentence Constitutes A Violation Of The Eighth Amendment’s
Prohibition Against Cruel And Unusual Punishment.

Due to state court indifference and prosecutorial obstruction, it took Mr. Conner’s case
close to 34 years to complete review from direct appeal through Mr. Conner’s initial federal habeas
proceedings, during which time he received less, rather than more, process. But for the delays
occasioned by the Georgia habeas court’s lackadaisical approach and Respondent’s obstructive
tactics, there is a more than reasonable likelihood that Mr. Conner would have obtained a jury trial
on the issue of his intellectual disability and that the case would have been resolved in a way that
removed the death sentence, as has happened to almost every similarly situated individual whose
case has been resolved following a remand under Fleming. See, e.g., Conner I, 645 F. 3d at 129091. Instead, the state courts, at Respondent’s behest, refused to allow Mr. Conner access to the
very evidence needed to prove his claim and then, after denying relief for lack of proof, ruled he
had defaulted the claim when he later returned to court with the necessary evidence he had finally
obtained, and the federal courts have now ruled that the courthouse is closed to further complaints.
On these facts, it would violate the Eighth and Fourteenth Amendments to execute Mr.
Conner after so lengthy a time on death row (particularly given his blamelessness and the State’s
culpability in causing the delay, and the degree to which he has been harmed by delay). Such
execution would inflict needless pain and suffering furthering no legitimate penological interest
on Mr. Conner after he has already received 34 years of exceptionally harsh punishment on death
row.
The Eighth Amendment declares that “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. “By
21

 protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of
the government to respect the dignity of all persons.” Roper v. Simmons, 543 U.S. 551, 560 (2005).
The government’s obligations under the Eighth Amendment continually develop, shaped by our
nation’s ever-evolving sense of morality. See, e.g., Trop v. Dulles, 356 U.S. 86, 99 (1958) (“[T]he
words of the Amendment are not precise, and [] their scope is not static. The Amendment must
draw its meaning from the evolving standards of decency that mark the progress of a maturing
society.”); Weems v. United States, 217 U.S. 349, 378 (1910) (stating that the Eighth Amendment
“is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened
by a humane justice”). Accordingly, punishments not compatible with current standards of
decency violate the Eighth Amendment prohibition on cruel and unusual punishments. See, e.g.,
Kennedy v. Louisiana, 554 U.S. 406 (2008) (categorically prohibiting the execution of person who
have not committed murder); Roper, 543 U.S. at 578 (categorically prohibiting the execution of
individuals who committed murder as juveniles); Atkins v. Virginia, 536 U.S. 304, 311 (2002)
(categorically prohibiting the execution of person with intellectual disability); Hutto v. Finney, 437
U.S. 678, 685 (1978) (limiting the use of solitary confinement).
At its core, the Eighth Amendment is animated by a respect for the inherent dignity of all
human beings: “The basic concept underlying the Eighth Amendment is nothing less than the
dignity of man.” Trop, 256 U.S. at 100. See also Hall v. Florida, 134 S. Ct. 1986, 1992 (2014)
(“The Eighth Amendment’s protection of dignity reflects the Nation we have been, the Nation we
are, and the Nation we aspire to be.”); Brown v. Plata, 563 U.S. 493 (2011) (“Prisoners retain the
essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth
Amendment prohibition against cruel and unusual punishment.”).

As a result, the Eighth

Amendment prohibits punishments which “involve the unnecessary and wanton infliction of pain.”

22

 Gregg v. Georgia, 428 U.S. 153, 173 (1976). This broad proscribed category includes, inter alia,
punishments which are “totally without penological justification.” Id. at 183. Punishment,
moreover, must be proportionate, based on both the crime and offender. See, e.g., Graham v.
Florida, 560 U.S. 48, 59 (2010) (“The concept of proportionality is central to the Eighth
Amendment.”).
1.

A Delay of 34 Years Between The Imposition of A Death
Sentence and Execution Renders Nonexistent Any Arguable
Deterrent or Retributive Effect And, To Top The Punishment of
Lengthy Incarceration With Execution Would Inflict Wholly
Disproportionate Punishment Under the Eighth Amendment.

Under the Eighth Amendment, “[p]unishment is justified under one or more of three
principal rationales: rehabilitation, deterrence, and retribution.” Kennedy v. Louisiana, 554 U.S.
407, 420 (2008). “Rehabilitation, it is evident, is not an applicable rationale for the death penalty.”
Hall v. Florida, 134 S. Ct. 1986, 1992-93 (2014). Rather, the “two principal social purposes” of
the death penalty are “retribution and deterrence of capital crimes by prospective offenders,”
Gregg, 428 U.S. at 184 (plurality opinion). In this case, those goals will not be meaningfully
furthered by Mr. Conner’s execution given the 34-year gap between imposition of Mr. Conner’s
death sentence and his scheduled execution. To the contrary, implementation of Mr. Conner’s
death sentence under these circumstances, “‘would . . . be the pointless and needless extinction of
life with only marginal contributions to any discernible social or public purpose. A penalty with
such negligible returns to the State would be patently excessive and cruel and unusual punishment
violative of the Eighth Amendment.’”

Lackey, 514 U.S. 1045, 1046 (1995) (memorandum of

Stevens, J., respecting denial of certiorari) (quoting Furman v. Georgia, 408 U.S. 238, 312 (1972)
(White, J., concurring in judgment)).

23

 Mr. Conner’s execution after this extraordinary passage of time will serve no retributive or
deterrent purpose. Indeed, carrying out a sentence issued 34 years ago would serve only to
illustrate what Justices Stevens and Breyer have called “the two underlying evils of intolerable
delay”:
First, the delay itself subjects death row inmates to decades of especially severe,
dehumanizing conditions of confinement . . . . Second, delaying an execution does
not further public purposes of retribution and deterrence but only diminishes
whatever possible benefit society might receive from petitioner’s death . . . . In
other words, the penological justifications for the death penalty diminish as the
delay lengthens.
Johnson v. Bredesen, 558 U.S. 1067, 1069 (2009) (Stevens and Breyer, JJ., statement respecting
denial of certiorari) (internal citations omitted).11 Acknowledgement of the role these “evils” play
in Mr. Conner’s case does not mean that one must “accept the proposition “‘that the imposition of
the death penalty [always] represents the pointless and needless extinction of life with only
marginal contributions to any discernible social or public purposes.’” Id. at 1070 (quoting Baze v.
Rees, 553 U.S. 35, 86 (2008) (Stevens, J., concurring in judgment)). Rather, one need only
recognize that in Mr. Conner’s case, “the imposition of the death penalty on these extreme facts is
without constitutional justification.” Id.12

11

See also Glossip v. Gross, 135 S. Ct. 2726, 2764 (2015) (Breyer and Ginsburg, JJ.,
dissenting) (the “excessively long periods of time that individuals typically spend on death row,
alive but under sentence of death” pose grave constitutional concerns).
12

Ironically, although rehabilitation is decidedly not a penological goal of the death
penalty, Mr. Conner’s lengthy incarceration has led his rehabilitation. During his time on death
row, Mr. Conner has transformed himself from a depressed and angry substance-abusing young
man into a compliant and well-behaved inmate who is remorseful for his crimes and helpful to the
guards. Mr. Conner’s transformation is yet another reason why execution after so lengthy a period
of punitive incarceration violates the Eighth Amendment.
24

 If Mr. Conner is executed, he will have been facing a death sentence on death row for
longer than any other death row inmate executed in Georgia in the modern era.13 On death row,
Mr. Conner has endured the harshness of life under solitary confinement for periods well beyond
the delay members of the Supreme Court have already identified as constitutionally troubling. Mr.
Conner has spent nearly three-and-a-half decades under a sentence of death.14 The time Mr.
Conner has spent under the constant specter of execution outstrips the “astonishingly long” 24year period in Knight v. Florida, 528 U.S. 990, 993 (1999) (Breyer, J., dissenting); the 27 years
Justice Breyer called “unusual by any standard” in Foster v. Florida, 537 U.S. 990, 992 (2002);
and the “extraordinary” 32-year period in Thompson v. McNeil, 556 U.S. 1114, 1115 (2009)
(Stevens, J., statement respecting the denial of certiorari). Indeed, if Mr. Conner ultimately is

13

Brandon Jones, executed on February 3, 2016, was convicted and sentenced to death in
September 1979. See Jones v. State, 249 Ga. 605, 605 (1982). Although executed some 35 years
after he was first sentenced to death, his death sentence was vacated in federal habeas proceedings
in February 1989, Jones v. Kemp, 706 F. Supp. 1534 (N.D. Ga. 1989), and he was not resentenced
to death until September 1997, Jones v. Ga. Diagnostic & Classification Prison Warden, 653 F.3d
1171, 1174 (11th Cir. 2014). He was accordingly not under a sentence of death for eight and a
half of those 35 years. Mr. Conner, by contrast, will have been under a sentence of death for 34
continuous years if his execution proceeds on July 14, 2016.
14

Three people currently under sentence of death first arrived on death row earlier than
Mr. Conner. Virgil Presnell was initially sentenced to death in August 1975. He received
sentencing relief in federal habeas proceedings in April 1992, Presnell v. Zant, 959 F.2d 1524
(11th Cir. 1992), and was resentenced to death close to seven years later, in March 1999, Presnell
v. State, 274 Ga. 246, 247 n. 1 (2001). James Rogers’ 1982 conviction and death sentence were
vacated in 1983, and he was resentenced to death two years later, in June 1985. Rogers v. State,
256 Ga. 139, 139 n.1 (1986). In 2003, he was granted a jury trial on the issue of intellectual
disability. See Rogers v. State, 276 Ga. 67 (2003). The jury found that he had not proven his
intellectual disability, Rogers v. State, 282 Ga. 659 (2007). The case of Willie Wilson, sentenced
to death in February 1982, Wilson v. State, 250 Ga. 630 (1983), was remanded in 1990 for a jury
determination of intellectual disability, and the case has been pending there since.
25

 executed, he “will have been punished both by death and also by more than a generation spent in
death row’s twilight.” See Foster, 537 U.S. at 993 (Breyer, J., dissenting).15
The State of Georgia has already exacted a far greater retributive toll upon Mr. Conner than
it exacts from most convicted murderers.16 Any slight retributive effects gleaned from executing
an intellectually impaired man more than 34 years after he was sentenced to death are insufficient
in this case to prevent the execution from violating the Eighth Amendment’s prohibition on
excessive punishments. If Mr. Conner’s execution proceeds, it will amount to a constitutionally
proscribed “pointless and needless extinction of life with only marginal contributions to any
discernible social or public purpose.” Furman, 408 U.S. at 312 (White, J., concurring).17

15

See Claim II for additional discussion of the Fifth Amendment implications of this
impermissible double punishment.
16

Life-sentenced prisoners convicted of serious felonies before 1995, as Mr. Conner was,
were typically eligible for parole consideration after serving seven years. See State Board of
Pardons and Paroles, Life Sentences, available at http://pap.georgia.gov/life-sentences. Lifesentenced prisoners convicted of serious felonies between 1995 and June 30, 2006, are initially
considered for parole after serving 14 years. Id. Life-sentenced prisoners convicted of serious
felonies on or after July 1, 2006, are considered for parole after 30 years. Id. The State Board of
Pardons and Paroles grants parole each year to numerous life-sentenced individuals. See, e.g.
Fiscal Year 2015 Annual Report, at 22 (151 grants out of 1381 total life decisions) (available at
https://www.joomag.com/magazine/ga-parole-fy2015-annual-report/0499652001427221953?
short); Annual Report, FYI 2014, at 19 (Board granted parole in 133 out of 710 total life decisions)
(available
at
https://pap.georgia.gov/sites/pap.georgia.gov/files/Annual_Reports/
FY14%20AR.pdf); Annual Report FY 2013, at 19 (144 grants out of 1289 total life decisions)
(available at http://pap.georgia.gov/sites/pap.georgia.gov/files/Annual_Reports/2013%20Annual
%20 Report_0.pdf); FY 2012 Annual Report, at 19 (Board granted parole to 235 of 1105 life
decisions) (available at https://pap.georgia.gov/sites/pap.georgia.gov/files/Annual%20Report%
202012.pdf).
17

The delay in Mr. Conner’s case also cannot be viewed as harmless with respect to his
ability to press constitutional claims for relief in the courts. By the time Mr. Conner finally had
an opportunity to present the mitigation evidence that was available and should have been
presented to a jury in 1982, or in his initial habeas proceedings, many of the witnesses had become
impossible to locate, had died, or had lost relevant memories, and critical evidence and
documentation had been lost or destroyed. For example, since Mr. Conner filed his first state
26

 2.

Mr. Conner Has Been Subjected to More Than Three “Decades
of Especially Severe, Dehumanizing Conditions of
Confinement.”18

As Justice Kennedy has explained, the “usual pattern,” followed in Georgia, is for a death
row inmate to be held “in a windowless cell no larger than a typical parking spot for 23 hours a
day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for
conversation or interaction with anyone,” for years or decades. Davis v. Ayala, 135 S. Ct. 2187,
2208 (2015). This Court has long recognized that solitary confinement aggravates the already
serious problems of extended confinement under a death penalty. These conditions have been
described as tantamount to torture by a large and growing number of human rights organizations,
psychological experts, and international tribunals. See, e.g., Knight, 528 U.S. at 995 (citing
international sources discussing the tortuous role of delay in death penalty and other cases,
including, inter alia, Pratt v. Attorney General of Jamaica, [1994] 2 A.C. 1, 18 (P.C. 1993) (en
banc) (acknowledging the lawfulness of the death penalty but calling a delay of 14 years
“shocking” and “inhuman or degrading punishment” forbidden by Jamaica’s Constitution)).

habeas petition in 1984, both of his parents, two siblings, and numerous aunts, uncles, and cousins
have died. Similarly, various records which initial state habeas counsel was unable to obtain due
to the lack of investigative resources and funding, have since been destroyed. See, e.g., Murphy
v. State, 290 Ga. 459 (2012) (reversing conviction on direct appeal and noting that “[a]s a result
of the delay, the parties are now faced with the difficult task of reconstructing evidence more than
13 years after the crimes were committed. Not only is it difficult to locate witnesses many years
after the fact and for those witnesses to remember important details, but in some cases, substantive
law may even change during the period of delay.”). Had Mr. Conner been provided adequate
defense resources, including competent, resourced counsel at trial or in initial state habeas
proceedings, this evidence could have been adduced in a timely manner and would likely have
resulted in a life sentence or relief in subsequent legal actions.
18

Johnson, 558 U.S. at 1069 (Stevens and Breyer, JJ., statement respecting denial of
certiorari).
27

 Indeed, both the American Bar Association and the United Nations Special Rapporteur on Torture
have sought to limit or ban solitary confinement. See Glossip v. Gross, 135 S. Ct. 2726, 2765
(2015) (Breyer and Ginsburg, JJ., dissenting).
As long ago as 1890, this Court described solitary confinement as an “additional
punishment of the most important and painful character,” In re Medley, 134 U.S. 160, 171 (1890),
and one which is often incompatible with humane confinement:
[E]xperience demonstrated that there were serious objections to [solitary
confinement]. A considerable number of the prisoners fell, after even a short
confinement, into a semi-fatuous condition, from which it was next to impossible
to arouse them, and others became violently insane; others still, committed suicide;
while those who stood the ordeal better were not generally reformed, and in most
cases did not recover sufficient mental activity to be of any subsequent service to
the community. It became evident that some changes must be made in the system
. . . solitary confinement was found to be too severe.”
Id. at 168.
Justice Kennedy recently reaffirmed this understanding, stating that “research still
confirms what this Court suggested over a century ago: Years on end of near-total isolation exact
a terrible price.” Ayala, 135 S. Ct. at 2209 (Kennedy, J., concurring). “The human toll wrought
by extended terms of isolation long has been understood, and questioned, by writers and
commentators.” Id. at 2209. Yet, death row prisoners are routinely subjected to this practice – a
practice that can lead to a litany of psychological issues, including anxiety, panic, hallucinations,
self-harm, and suicide. See id. at 2210.
In addition to the harmful effects of physical isolation, the long period of waiting to be
given an actual execution date – measured in decades in Mr. Conner’s case – is also a source of

28

 significant psychological trauma.19

“The dehumanizing effect of solitary confinement is

aggravated by uncertainty as to whether a death sentence will in fact be carried out.” Glossip, 135
S. Ct. at 2765 (Breyer and Ginsburg, JJ., dissenting). The Medley Court similarly recognized long
ago that “when a prisoner sentenced by a court to death is confined in the penitentiary awaiting
the execution of the sentence, one of the most horrible feelings to which he can be subjected during
that time is the uncertainty during the whole of it, which may exist for the period of four weeks,
as to the precise time when his execution shall take place.” Medley, 134 U.S. at 172. If, as the
Court acknowledged, a wait of four weeks produces “one of the most horrible feelings,” the
decades Mr. Conner has waited are surely exponentially more horrible. See Lackey v. Texas, 514
U.S. 1045, 1046 (1995) (memorandum of Stevens, J., respecting denial of certiorari) (“If the Court
accurately described the effect of uncertainty in Medley, which involved a period of four weeks
. . . that description should apply with even greater force in the case of delays that last for many
years.”); Furman, 408 U.S. at 288-89 (Brennan, J., concurring) (“[W]e know that mental pain is

19

The psychological suffering thrust onto death row prisoners is demonstrated by the
number of individuals who commit suicide or drop their appeals and “volunteer” for execution:
[G]iven the negative effects of confinement and uncertainty, it is not surprising that
many inmates volunteer to be executed, abandoning further appeals. See, e.g.,
ACLU Report 8; Rountree, Volunteers for Execution: Directions for Further
Research into Grief, Culpability, and Legal Structures, 82 UMKC L. Rev. 295
(2014) (11% of those executed have dropped appeals and volunteered); ACLU
Report 3 (account of “‘guys who dropped their appeals because of the intolerable
conditions’”). Indeed, one death row inmate, who was later exonerated, still said
he would have preferred to die rather than to spend years on death row pursuing his
exoneration. Strafer, Volunteering for Execution: Competency, Voluntariness and
the Propriety of Third Party Intervention, 74 J. Crim. L. & C. 860, 869 (1983). Nor
is it surprising that many inmates consider, or commit, suicide. Id., at 872, n.
44 (35% of those confined on death row in Florida attempted suicide).
Glossip, 135 S. Ct. at 2766 (Breyer and Ginsburg, JJ., dissenting).
29

 an inseparable part of our practice of punishing criminals by death, for the prospect of pending
execution exacts a frightful toll during the inevitable long wait between the imposition of sentence
and the actual infliction of death”); Solesbee v. Balkcom, 339 U.S. 9, 14 (1950) (Frankfurter, J.,
dissenting) (“In the history of murder, the onset of insanity while awaiting execution of a death
sentence is not a rare phenomenon.”).
Due to the extraordinary delay in this case, Mr. Conner has already been subjected, in
effect, to a life sentence under exceptionally severe penal conditions. To top this punishment with
the permanently harmful indignity of execution would be excessive and disproportionate
punishment, prohibited by the Eighth Amendment.
B.

Mr. Conner’s Execution Would Be Unconstitutionally Duplicative Of
And Additional To The Punishment Already Inflicted On Him In
Violation Of The Fifth Amendment Prohibition Against Double
Jeopardy.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution
guarantees that no person shall be “subject for the same offence or be twice put in jeopardy of life
or limb.” U.S. Const. amend. V. See also Ga. Const. Art. I, §I (“No person shall be put in jeopardy
of life or liberty more than once for the same offense except when a new trial has been granted
after conviction or in case of mistrial.”). The federal guarantee against double jeopardy applies to
the States through the Fourteenth Amendment, see Benton v. Maryland, 395 U.S. 784, 794 (1969),
and protects against, inter alia, “multiple punishments for the same offense,” North Carolina v.
Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds. See also Dept. of Revenue of Mont.
v. Kurth Ranch, 511 U.S. 767, 769-70 (1994); Alabama v. Smith, 490 U.S. 794 (1989); Brown v.
Ohio, 432 U.S. 161, 165-66 (1977); In re Bradley, 318 U.S. 50, 51-53 (1943); Ex parte Lange, 85
U.S. 163, 172 (1873); U.S. v. Bonilla, 579 F.3d 1233, 1239-40 (11th Cir. 2009); U.S. v. Jones, 722
F.2d 632, 637 (11th Cir. 1983); Williams v. State, 288 Ga. 7 (2010). Stated differently, one of the
30

 “distinct abuses” the Double Jeopardy Clause prohibits is being punished a second time for the
same act. United States v. Halper, 490 U.S. 435, 440 (1989).
Mr. Conner has been incarcerated for nearly 34 years under a single murder conviction.20
Though sentenced to death, Mr. Conner has instead served a de facto life sentence. To permit the
State to exact any additional or second punishment against Mr. Conner, namely, to execute him
pursuant to a death sentence, violates the Fifth Amendment guarantee that no man shall be subject
to multiple punishments for the same offense. See, e.g., Lange, 85 U.S. at 176 (“When a prisoner
by reason of a valid judgment has fully suffered one of the alternative punishments to which alone
the law subjected him, the power of the court to punish further is gone.”).
Mr. Conner arrived on Georgia’s death row in the summer of 1982. He has served his
sentence in the Georgia Diagnostic and Classification Prison, where death row is currently housed;
the prior Georgia State Prison in Reidsville; and the Telfair County Jail. Not only has Mr. Conner
arguably served a longer term of incarceration than that served by the typical “lifer” in Georgia
prisons,21 but the uniquely harsh conditions of death row make the sentence that he has already
served more severe than life imprisonment under normal prison conditions. Life on death row has
been described as “the relentless regime of lockdown, loneliness, isolation, and hopelessness while
one awaits death, exacting a terrible psychic, spiritual, psychological, and familial toll.” Daniel P.
Blank, Mumia Abu-Jamal and the Death Row Phenomenon, 48 Stan. L. Rev. 1625, 1642 (1996).
Protracted incarceration under a sentence of death causes extensive mental suffering and
anguish. Mr. Conner is housed alone in a 7-foot by 10-foot windowless cell where the lights

20

Mr. Conner’s armed robbery conviction was vacated on appeal. Conner, 251 Ga. at 115.
On the theft conviction, Mr. Conner was sentenced to seven years to serve concurrently.
21

See supra note 16 discussing parole eligibility for life sentences.
31

 remain illuminated 24 hours a day, seven days a week. For most of Mr. Conner’s incarceration
period, outdoor exercise has been restricted to, at most, two three-hour periods per week. Indoor
exercise, known as “runaround time,” is restricted to one hour or less per day. During that time,
Mr. Conner must attend to his personal hygiene needs and complete any permitted personal or
legal phone calls. Any other time Mr. Conner is outside his cell is spent performing janitorial and
maintenance services in his capacity as a “houseman.”
Visitation privileges for death-sentenced prisoners are extremely restricted, and limited to
a small number of people who may visit only on Saturdays and Sundays, and who must be preapproved by prison authorities. Contact visits with approved family members are earned only with
a perfect disciplinary record and happen only once every two months. All other visits are
conducted via telephone though a thick plexiglass window, which makes seeing and hearing loved
ones and paralegals difficult. Before and after each visit, including legal visits, inmates are subject
to a thorough strip-search. They are also strip-searched before and after making legal phone calls.
By virtue of his age, Mr. Conner has been and remains more at risk for victimization by
other inmates. In short, the conditions on Georgia’s death row are far more invasive, restrictive,
and anxiety-inducing than the conditions of confinement for prisoners not sentenced to death.
In Mr. Conner’s case, his long-term confinement in these conditions has accelerated the
aging process and exacerbated the effects of his intellectual impairments. Adding to the impact of
the more restrictive physical conditions of incarceration is the mental anguish of living under the
shadow of death. The psychological impact of anticipating one’s own execution, and witnessing
friends’ executions, is devastating. See Solesbee, 339 U.S. at 14 (Frankfurter, J., dissenting),
abrogated by Ford v. Wainwright, 477 U.S. 399 (1986). Mr. Conner suffers from cognitive
limitations that impair his ability to cope with psychological stress, making him yet more

32

 susceptible to the emotional toll of living under a sentence of death. Justice Brennan wrote in his
concurrence in Furman that “mental pain is an inseparable part of our practice of punishing
criminals by death, for the prospect of pending execution exacts a frightful toll during the
inevitable long wait between the imposition of sentence and the actual infliction of death.” 408
U.S. at 288-289 (1972) (Brennan, J., concurring). Mr. Conner has been burdened not only by the
threat of his own potential execution, but the ever-present threat to the lives of his friends and the
other men on his cell block. Indeed, Mr. Conner has served as a grim witness of sorts to the
execution of approximately 65 fellow inmates throughout his incarceration.
Mr. Conner’s 34-year incarceration outstrips the length of time served by the great majority
of similarly situated defendants, including the many who served life sentences as well as the few
who were sentenced to death.22 By keeping Mr. Conner confined to death row for nearly 34 years,
the State has inflicted on him a second criminal sanction, unauthorized by law. Any further
punishment impermissibly subjects Mr. Conner to two punishments: life in prison AND the death
penalty, a combination of punishments that violates the prohibition against double punishment.
See, e.g., Pearce, 395 U.S., at 718 (“[I]t is clear that this basic constitutional guarantee [against
being punished twice for the same offense] is violated when punishment already exacted for an
offense is not fully ‘credited’ in imposing sentence upon a new conviction for the same offense.”);
85 U.S., at 176 (“[W]hen the prisoner, s in this case, by reason of a valid judgment, had fully

22

See also Claim I (discussing how an execution that fails to meaningfully further any
penological purpose violates the Eighth Amendment). Executing Mr. Conner after he has already
served and will continue to serve the equivalent of a life-without-parole sentence in prison fails to
serve either of government’s fundamental goals or “traditional aims” of punishment, namely,
deterrence and retribution. See, e.g., Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168 (1963).
Should it go forward, Mr. Conner’s execution will constitute little more than the “wanton and
needless infliction of pain.” Enmund v. Florida, 458 U.S. 782, 798 (1982).
33

 suffered one of the alternative punishments to which alone the law subjected him, the power of the
court to punish further was gone.”). The Fifth and Fourteenth Amendments, accordingly, do not
permit Mr. Conner’s execution.
CONCLUSION
Over the past 34 years, the State of Georgia has exacted from Mr. Conner the equivalent
of a life sentence under severe conditions of isolation and privation that characterize Georgia’s
death row. To now implement his death sentence would doubly punish him with excessive and
disproportionate penalty, in violation of the Fifth, Eighth and Fourteenth Amendments. This Court
must grant the Petition for Writ of Certiorari or, alternatively, issue a writ of habeas corpus in order
to prevent the State of Georgia from committing an act so inimical to our morality and fundamental
laws.
Respectfully submitted,
________________________
Brian S. Kammer (Ga. 406322)
Marcia A. Widder (Ga. 643407)
Georgia Resource Center
303 Elizabeth Street, NE
Atlanta, Georgia 30307
(404) 222-9202
COUNSEL FOR PETITIONER

34

 No. __-________
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 20__
_________________________________________________________
_________________________________________________________
[PETITIONER NAME],
Petitioner,
-v[WARDEN NAME], Warden
Georgia Diagnostic Prison,
Respondent.
__________________________________________________________
__________________________________________________________
CERTIFICATE OF SERVICE
__________________________________________________________
__________________________________________________________
This is to certify that I have served a copy of the foregoing document this day by U.S. Mail,
first-class postage prepaid, on counsel for Respondent at the following address:
Paula K. Smith
Senior Assistant Attorney General
132 State Judicial Building
40 Capitol Square, S.W.
Atlanta, Georgia 30334-1300
This 14th day of July, 2016

_______________________
Marcia A. Widder