CAPITAL CASE No. 17- IN THE SUPREME COURT OF THE UNITED STATES GARY OTTE, RONALD PHILLIPS, AND RAYMOND TIBBETTS, Applicants, V. RONALD ERDOS, et al., Respondents. APPLICATION FOR STAY OF EXECUTION TO THE HONORABLE ELENA KAGAN, AS CIRCUIT JUSTICE ****EXECUTION OF RONALD PHILLIPS SCHEDULED FOR JULY 26, 2017**** DEBORAH WILLIAMS FEDERAL PUBLIC DEFENDER BY ALLEN L. BOHNERT (OH 0081544) ERIN G. BARNHART (OH 0079681) ADAM M. RUSNAK (OH 0086893) NADIA WOOD (MN 0391334) OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO 10 WEST BROAD STREET, SUITE 1020 COLUMBUS, OH 43215-3469 (614) 469-2999 Co-Counsel for Raymond Tibbetts (additional counsel on following page) ACTIVE 222835495 MARKE. HADDAD Counsel of Record ALYCIA A. DEGEN JOSHUA E. ANDERSON KATHERINE A. ROBERTS COLLIN P. WEDEL ADAM P. MICALE SIDLEY AUSTIN LLP 555 W. FIFTH STREET 40TH FLOOR Los ANGELES, CA 90013 (213) 896-6000 mhaddad@sidley.com Counsel for all Applicants DEBORAH WILLIAMS FEDERAL PUBLIC DEFENDER BY LISA M. LAGOS (OH 0089299) OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO 10 WEST BROAD STREET, SUITE 1020 COLUMBUS, OH 43215-3469 (614) 469-2999 Co-Counsel for Ronald Phillips TIMOTHY F. SWEENEY (OH 0040027) LAW OFFICE OF TIMOTHY FARRELL SWEENEY THE 820 BUILDING, SUITE 430 820 WEST SUPERIOR A VE. CLEVELAND, OHIO 44113-1800 216-241-5003 Co-Counsel for Ronald Phillips JAMES A. KING (OH 0040270) PORTER, WRIGHT, MORRIS & ARTHURLLP 41 SOUTH HIGH STREET COLUMBUS, OHIO 43215 614-227-2051 Co-Counsel for Raymond Tibbetts STEVE NEWMAN FEDERAL PUBLIC DEFENDER BY VICKI WERNEKE (OH 0088560) OFFICE OF THE FEDERAL PUBLIC DEFENDER, NORTHERN DISTRICT OF OHIO 1660 WEST 2ND STREET SUITE 750 CLEVELAND, OH 44113 (216) 522-4856 Co-Counsel for Gary Otte TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................... ii APPLICATION FORA STAY OF EXECUTION .......................................................... l JUDGMENT FOR WHICH REVIEW IS SOUGHT ...................................................... l JURSIDICTION ............................................................................................................. 1 REASONS FOR GRANTING THE STAY ..................................................................... 2 CONCLUSION ............................................................................................................. 13 1 TABLE OF AUTHORITIES Page CASES Ardese v. DCT, Inc., 280 F. App'x 691 (10th Cir. 2008) ........................................................................... 10 Baze v. Rees, 553 U.S. 35 (2008) ..................................................................................................... 8 Cooper v. Harris, 137 S. Ct. 1455 (2017) ............................................................................................... 5 Farmer v. Brennan, 511 U.S. 825 (1994) ................................................................................................... 8 G & V Lounge, Inc. v. Michigan Liquor Control Comm 'n, 23 F.3d 1071 (6th Cir. 1994) ................................................................................... 12 Glossip v. Gross, 135 S. Ct. 2726 (2015) ........................................................................................... 5, 8 Helling v. McKinney, 509 U.S. 25 (1993) ..................................................................................................... 8 Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923 (D.C. Cir. 2016), cert. denied, 137 S. Ct. 830 (2017) .......................... 9 Maryland v. King, 567 U.S. 1301 (2012) ................................................................................................. 4 New Hampshire v. Maine, 532 U.S. 742 (2001) ................................................................................................... 9 Nken v. Holder, 556 U.S. 418 (2009) ................................................................................................... 4 In re Ohio Execution Protocol, - F.3d-, No. 17-3076, 2017 WL 2784503 (6th Cir. June 28, 2017) ....... 1, 6, 9, 12 In re Ohio Execution Protocol Litig., - F. Supp. 3d -, No. 2:ll-cv-1016, 2017 WL 378690 (S.D. Ohio Jan. 26, 2017), vacated, No. 17-3076, 2017 WL 2784503 (6th Cir. June 28, 2017) ............................................................................................................ 2, 5, 6, 12 11 Pierce v. Underwood, 487 U.S. 552 (1988) ................................................................................................... 9 Stallings v. Hussmann Corp., 447 F.3d 1041 (8th Cir. 2006) ................................................................................... 9 OTHER AUTHORITIES Frank Green, Pathologist Says Ricky Gray's Autopsy Suggests Problems with Virginia's Execution Procedure, Rich. Times-Dispatch, July 7, 2017, https://goo.gl/grwsvU ................................................................................................ 7 Ed Pilkington & Jacob Rosenberg, Fourth and Final Arhansas Inmate Kenneth Williams Executed, Guardian, Apr. 28, 2017, https://goo.gl/E2KPZ7 ............................................................................................... 7 111 APPLICATION FOR STAY OF EXECUTION To the Honorable Elena Kagan, Associate Justice of the Supreme Court of the Unites States and Circuit Justice for the Sixth Circuit: Applicants Gary Otte, Ronald Phillips, and Raymond Tibbetts respectfully request a stay of their executions using a three-drug lethal injection protocolmidazolam, a paralytic, and potassium chloride-pending the Court's disposition of their Petition for Writ of Certiorari ("Petition") seeking review of the decision of the United States Court of Appeals for the Sixth Circuit in Case No. 17-3076 (Jun. 28, 2017) (en bane). Applicant Ronald Phillips is scheduled to be executed on July 26, 2017. Applicant Gary Otte is scheduled to be executed on September 13, 2017. Applicant Raymond Tibbetts is scheduled to be executed on October 18, 2017. If this Court is unable to resolve this Application by July 26, 2017, it should grant a temporary stay while it considers this Application. JUDGMENT FOR WHICH REVIEW IS SOUGHT The judgment for which review is sought is In re Ohio Execution Protocol Litigation, - F.3d -, No. 17-3076, 2017 WL 2784503 (6th Cir. June 28, 2017) (en bane) (attached as Exhibit A). JURISDICTION The Sixth Circuit issued its en bane decision on June 28, 2017, which vacated preliminary injunctions entered by the district court on January 26, 2017. Applicants have concurrently filed a petition for a writ of certiorari with this 1 Application. This Court has jurisdiction to enter a stay under 28 U.S.C. § 2101(£), 28 U.S.C. § 1651, and Supreme Court Rule 23. REASONS FOR GRANTING THE STAY The district court below held that Applicants were entitled to two preliminary and independent injunctions, on their Eighth Amendment and judicial estoppel claims respectively, pending a full trial on the merits. Under the Eighth Amendment, the district court found that "Ohio's present three-drug protocol will create a 'substantial risk of serious harm' ... as required by Baze and Glossip," In re Ohio Execution Protocol Litig., - F. Supp. 3d -, No. 2:11-cv-1016, 2017 WL 378690, at *53 (S.D. Ohio Jan. 26, 2017), and that Applicants had "identif[ied] a sufficiently available alternative method of execution to satisfy Baze and Glossip," id. at *54. Applying the factors this Court has identified as relevant to judicial estoppel, the district court separately and preliminarily enjoined Ohio from carrying out Applicants' executions to the extent Ohio's protocol would use two painful execution drugs (a paralytic agent and potassium chloride), because Ohio had succeeded in mooting a challenge to the use of those two drugs in an earlier stage of this litigation by promising never to use them again. Id. at *57. After a divided panel affirmed both rulings, the Sixth Circuit voted to rehear the case en bane and then reversed the district court's judgment, dissolving both of its injunctions, by votes of 8-6 (Eighth Amendment) and 9-5 (judicial estoppel). As Applicants explain in their Petition, the Sixth Circuit's decision on the Eighth Amendment turns on the en bane court's imposition of a new substantive 2 standard for proving an Eighth Amendment challenge to a method of execution that is even "more rigorous" than the standard this Court has repeatedly set forth and applied, both in method-of-execution challenges and in the Eighth Amendment case law on which this Court's capital cases are based. Applying this standard, the en bane majority re-read the trial record de novo, weighed witness credibility, and found its own facts rather than deferring to the district court's plausible findings. Because the en bane court's new standard conflicts with this Court's prior decisions, is outcome-determinative, and involves an issue of recurring and national importance, Applicants have a reasonable probability of securing review in this Court of the Eighth Amendment standard, and a fair prospect of prevailing. The Sixth Circuit's holding as to judicial estoppel also merits plenary review. The en bane court reversed the judgment by applying de novo rather than a deferential standard of review. By reviewing judicial estoppel de novo, the Sixth Circuit deepened and confirmed its divide with most of the other circuits on the standard of review; eleven other circuits would have reviewed the district court's finding of judicial estoppel for abuse of discretion. As decisions of these eleven circuits explain, no other standard of review for a lower court's discretionary judgment makes sense. Because the Sixth Circuit's en bane ruling locks in that circuit's decision to diverge from nearly all other courts of appeals on this important and recurring issue, it is reasonably probable that the Court will grant review on this question and that Applicants will prevail. Prevailing on either of the questions presented would suffice to reinstate one of the district court's two preliminary 3 injunctions against Ohio's current method of execution. The Court therefore should grant a stay to preserve the status quo until it can consider Applicant's petition. On May 1, 2017, the Ohio's Governor re-set Applicants' execution dates to July 26 (Phillips), September 13 (Otte), and October 18 (Tibbets). These dates likely will preclude this Court from considering Applicants' Petition before the scheduled executions of at least two of the Applicants, thus necessitating this Application. The issuance of a stay is left to this Court's discretion, guided by four factors: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Nhen v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). In the context of a stay pending the Court's ruling on a petition for certiorari, an applicant need show only a "reasonable probability" that this Court will grant certiorari and a "fair prospect" that the decision below will be reversed. Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers). When the Government is the opposing party, assessing the harm to the opposing party and weighing the public interest merge. Nken, 556 U.S. at 435. Applying these factors, the Court should grant the Application and stay Ohio's use of the challenged protocol to execute Applicants pending a decision on their Petition. 1. There is a reasonable probability that this Court will grant certiorari and a fair prospect that Applicants will succeed on the merits of each the two questions they present. 4 First, the en bane court applied a new and more rigorous standard for proving Eighth Amendment method-of-execution claims than the district court applied and that this Court established. The district court found that "Ohio's present three-drug protocol will create a 'substantial risk of serious harm' ... as required by Baze and Glossip." Ohio Execution Protoco Litig., 2017 WL 378690, at *53. It was undisputed below that the nature of the harm is serious-absent an adequate first drug, the administration of a paralytic and potassium chloride will impose agonizing and excruciating pain. The disputed issue was the likelihood that Ohio's protocol would cause Applicants to suffer such pain. The district court, applying the "substantial risk" standard, used the language this Court has most often used to describe the required showing under the Eighth Amendment. Had the Sixth Circuit agreed that this was the proper substantive standard, it would then have reviewed the district court's findings under "the deferential 'clear error' standard" that this Court applied in Glossip v. Gross, 135 S. Ct. 2726, 2731, 2737, 2739 (2015). This Court recently removed any doubt that, under the clear error standard of review, an appellate court must affirm a district court's "plausible" findings, and must do so even if the appellate court would find the opposite findings to be equally or even more plausible. Cooper v. Harris, 137 S. Ct. 1455, 1465, 1468 (2017). The en bane majority avoided the application of this deferential standard of review because it redefined the substantive showing that an Eighth Amendment claimant must make. Although the district court, by quoting and referring to the operative standard of Baze and Glossip, had seemingly applied the correct legal 5 standard, the en bane majority concluded otherwise. The majority below held that Glossip in fact imposes a "more rigorous" standard than what the district court identified because Glossip requires a plaintiff to prove the risk of harm to "a high level of certainty." Ohio Execution Protocol, 2017 WL 2784503, at *4. The en bane court's decision to announce and apply this novel and heightened standard of proof was outcome-determinative, because absent the finding of a legal error, the Sixth Circuit would have been obliged to review the district court's findings only for clear error. Under that deferential standard, the preliminary injunction would have been affirmed. The record is replete with the testimony of Applicants' two expert witnesses, each of whom testified to a reasonable medical certainty that Ohio's protocol absolutely would cause Applicants to suffer severe pain. The en bane majority construed its decision to adopt a new standard, however, as permission to read the record de novo. Rather than deferring to the district court's plausible weighing of the evidence and decision to credit Applicants' experts instead of Ohio's experts, the majority found its own facts. The Sixth Circuit also overturned the district court's finding that Applicants had identified pentobarbital as "a sufficiently available alternative method of execution to satisfy Baze and Glossip." Ohio Execution Protocol Litig., 2017 WL 378690, at *54. As the Petition explains, that aspect of the majority's decision 6 reflects the same improper standard of de novo review, and thus also merits this Court's review.I This Court is likely to grant the Petition because clarifying the proper legal standard governing a method-of-execution claim is a recurring issue of national importance. There is mounting evidence that the three-drug protocol Ohio seeks to use is unconstitutionally painful. See Frank Green, Pathologist Says Ricky Gray's Autopsy Suggests Problems with Virginia's Execution Procedure, Rich. TimesDispatch, July 7, 2017, https://goo.gl/grwsvU (describing autopsy results from execution of Ricky Gray as "more often seen in the aftermath of a sarin gas attack than in a routine hospital autopsy"); Ed Pilkington & Jacob Rosenberg, Fourth and Final Arkansas Inmate Kenneth Williams Executed, Guardian, Apr. 28, 2017, https://goo.gl/E2KPZ7 (describing "convulsions," "shaking,"' "moan[ing]," and "groan[ing]" during Williams's execution). Two states have formally abandoned midazolam. And two district courts-the court below and a district court in 1 The Sixth Circuit also committed a separate and plain error as to availability by failing to address a second alternative method of execution that Applicants fully presented at each stage below, and that the district court had no occasion to reach. As the petition explains, this alternative is immediately available to Ohio under any conceivable definition of "availability." The Sixth Circuit's plain error in not addressing it means that, even if this Court were to agree with the Sixth Circuit's conclusion on the availability of pentobarbital, the en bane majority's decision on availability still could not stand; it would require, at the very least, a remand to address this second method. For this reason, the en bane court's incomplete assessment of availability does not and cannot serve to insulate from this Court's review the critically important question of the substantive standard that governs the proof of a risk that a method of execution will cause severe pain. 7 Arkansas-that have heard the testimony have found plaintiffs likely to succeed in challenging midazolam's constitutional adequacy. Applicants also have a reasonable prospect of prevailing on their Eighth Amendment challenge, because the Sixth Circuit's standard cannot be reconciled with this Court's decisions. Nothing in Glossip or in Baze v. Rees, 553 U.S. 35 (2008), supports isolating the phrase '"sure or very likely to cause serious illness and needless suffering,"' Glossip, 135 S. Ct. at 2737 (quoting Baze, 553 U.S. at 50), as the majority did here, to create a "more rigorous" standard that is materially different than, and cannot be satisfied by showing, a "substantial risk of serious harm." This Court has long held that a showing of "substantial risk of serious harm" suffices to establish an Eighth Amendment claim. See, e.g., Farmer v. Brennan, 511 U.S. 825 (1994); Helling v. McKinney, 509 U.S. 25 (1993). Consistent with Farmer and Helling, the controlling plurality opinion in Baze refers to a "sure or very likely" risk only once while using "substantial risk" (or a variant, such as "the risk is substantial") twelve times. Similarly, Glossip uses "sure or very likely" only four times, but refers to a "substantial" risk eleven times. It is inconceivable that this Court would have discussed, at such length, the standard of "substantial risk," if it meant to convey, as the Sixth Circuit now holds, that a district court commits clear error when it finds that a plaintiff has met that standard. Second, the Court also is reasonably likely to grant the Petition to resolve the clear and acknowledged circuit split over the standard of review of a district court's finding of judicial estoppel. Expressly disagreeing with its sister circuits, the Sixth 8 Circuit held that it would continue to apply de novo review to judicial estoppel. Ohio Execution Protocol, 2017 WL 2784503, at *7. This aspect of the decision below confirms the Sixth Circuit's stark conflict with eleven other circuit courts, each of which would have reviewed a district court's finding of judicial estoppel for abuse of discretion. Because this circuit split is well-developed, and because the decision below is by an en bane court and therefore precludes any reasonable prospect that the split will resolve without this Court's intervention, there is at least a reasonable probability that this Court will grant review on this issue. There also is a fair prospect that Applicants will prevail. In New Hampshire v. Maine, 532 U.S. 742 (2001), this Court explained that "judicial estoppel is an equitable doctrine invoked by a court at its discretion," based on factors that "are probably not reducible to any general formulation." Id. at 749-50. In Pierce v. Underwood, 487 U.S. 552 (1988), this Court observed that matters consigned to a trial court's discretion generally are reviewed for abuse of that discretion. Id. at 558, 562. Consistent with New Hampshire and Pierce, eleven circuits have squarely held that judicial estoppel is reviewed for abuse of discretion. See Pet. 27-28 (citing cases). Some of these circuits abandoned de novo review in the aftermath of this Court's ruling in New Hampshire, finding that de novo review would make "no sense" given this Court's description of the inherently discretionary nature of an estoppel finding. E.g., Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923, 927-28 (D.C. Cir. 2016), cert. denied, 137 8. Ct. 830 (2017); Stallings v. Hussmann Corp., 447 F.3d 1041, 1046 (8th Cir. 2006). 9 The Sixth Circuit, by contrast, offered no reasoned defense of its decision to persist in imposing de novo review. The choice of the standard of review again determined the outcome. Had the majority below applied deferential review, it would have affirmed, because the district court unambiguously and reasonably applied the considerations that this Court identified in New Hampshire as most often associated with judicial estoppel. Ardese v. DCT, Inc., 280 F. App'x 691, 696 (10th Cir. 2008) (Gorsuch, J.) ("[T]hat another judge in another case might have made a different decision about applying an equitable doctrine does not suggest that the district court in this case abused its discretion."). 2. Applicants will be irreparably injured pending this Court's decision on the Petition without a stay of their executions to the extent Ohio intends to use the method or drugs that the district court enjoined. Applicant Ronald Phillips is scheduled to be executed on July 26, 2017, Applicant Gary Otte is scheduled to be executed on September 13, 2017, and Applicant Raymond Tibbetts is scheduled to be executed on October 18, 2017. Their nearing execution dates mean that some or all of the Applicants are likely to die before this Court considers their Petition. If they are executed using Ohio's current drug protocol, that execution will violate their Eighth Amendment rights and nullify the district court's finding that use of a paralytic and potassium chloride to execute Applicants now, prior to a full trial on the merits, would fundamentally compromise the integrity of this litigation. Absent a stay, Applicants plainly face irreparable injury. 10 3. Issuance of the stay will not substantially injure the State, and the public interest lies in favor of granting the stay. Any harm to the State from a brief stay is minimal, particularly in comparison to Applicants' irreparable harm. First, although the public does have an interest in the finality of criminal convictions, a stay that would last only a few months, and is needed to allow this Court the opportunity to consider a petition for certiorari from a sharply divided en bane court on two issues of national importance, is a de minimis impairment of the public's interest in finality. Further, the State has introduced no evidence that the drugs it will use will soon expire or of other circumstances that would turn a temporary stay into a de facto moratorium. Second, Ohio's governor previously has moved Applicants' execution dates to accommodate the reasonable needs of judicial review, and has the discretion to move them again. During the pendency of this litigation, the governor has moved the execution dates several times, by one or two months at a time, to allow for highly expedited review of Applicants' claims in both the district court and the court of appeals; indeed, this accelerated review has included a preliminary injunction hearing, panel review, en bane review, and a filing of cert petition, all within the first seven months of this year. The governor's discretion to change execution dates to accommodate judicial review, and the exceptionally fast pace of that review, confirms that there is no compelling procedural obstacle to affording this Court the opportunity it needs to consider the petition for certiorari. 11 Third, the State also has acknowledged that it "strateg[ically]" chose to conceal its decision to adopt a midazolam-based protocol from the parties and the court for half a year. Ohio Execution Protocol, 2017 WL 2784503, at *19. (Moore, J., dissenting) ("Director Mohr admitted that it was a strategic decision to conceal the switch."). This forced Applicants to undertake a massive effort on short notice to draft new complaints and preliminary injunction motions challenging Ohio's unexpected change-of-position, to undertake accelerated discovery, and to litigate a five-day hearing with multiple lay and expert witnesses less than twelve weeks after Ohio's belated announcement. Had Ohio revealed its plan sooner, Applicants could have filed their challenge sooner, thus placing less pressure on the courts for expedited consideration and on the governor to accommodate judicial review. Fourth, Applicants played no role in generating the exigencies necessitating this stay. The district court explicitly found that Applicants "were in no way dilatory" in raising their claims. Ohio Execution Protocol Litig., 2017 WL 378690, at *58. For this reason as well, the balance of the equities tips in Applicants' favor. Finally, the public has an interest in having the stay granted so that the merits of Applicants' claims may be considered. The public's interest is always served in seeing that executions are carried out lawfully and without violating the constitutional rights of prisoners. See G & V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F.3d 1071, 1079 (6th Cir. 1994) (construing Gannett Co. v. DePasquale, 443 U.S. 368, 383 (1979)). 12 CONCLUSION The Court should grant this Application and stay Applicants' executions pending disposition of their Petition for Writ of Certiorari. Respectfully submitted, DEBORAH WILLIAMS FEDERAL PUBLIC DEFENDER BY ALLEN L. BOHNERT (OH 0081544) ERIN G. BARNHART (OH 0079681) ADAM M. RUSNAK (OH 0086893) NADIA WOOD (MN 0391334) OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO . 10 WEST BROAD STREET, SUITE 1020 COLUMBUS, OH 43215-3469 (614) 469-2999 MARKE. HADDAD Counsel of Record ALYCIA A. DEGEN JOSHUA E. ANDERSON KATHERINE A. ROBERTS COLLIN P. WEDEL ADAM P. MICALE SIDLEY AUSTIN LLP 555 W. FIFTH STREET 40TH FLOOR Los ANGELES, CA 90013 (213) 896-6000 mhaddad@sidley.com Co-Counsel for Raymond Tibbetts Counsel for all Applicants DEBORAH WILLIAMS FEDERAL PUBLIC DEFENDER BY LISA M. LAGOS (OH 0089299) OFFICE OF THE FEDERAL PUBLIC DEFENDER, SOUTHERN DISTRICT OF OHIO 10 WEST BROAD STREET, SUITE 1020 COLUMBUS, OH 43215-3469 (614) 469-2999 JAMES A. KING (OH 0040270) PORTER, WRIGHT, MORRIS & ARTHURLLP 41 SOUTH HIGH STREET COLUMBUS, OHIO 43215 614-227-2051 Co-Counsel for Ronald Phillips STEVE NEWMAN FEDERAL PUBLIC DEFENDER BY VICKI WERNEKE (OH 0088560) OFFICE OF THE FEDERAL PUBLIC DEFENDER, NORTHERN DISTRICT OF OHIO 1660 WEST 2ND STREET SUITE 750 CLEVELAND, OH 44113 (216) 522-4856 Co-Counsel for Raymond Tibbetts TIMOTHY F. SWEENEY (OH 0040027) LAW OFFICE OF TIMOTHY FARRELL SWEENEY THE 820 BUILDING, SUITE 430 820 WEST SUPERIOR A VE. CLEVELAND, OHIO 44113-1800 216-241-5003 Co-Counsel for Ronald Phillips Co-Counsel for Gary Otte 13 CERTIFICATE OF SERVICE I, Mark E. Haddad, certify that, on this 17th day of July, 2017, I caused a copy of the foregoing Application for Stay of Execution to be served on the following by first-class mail, postage pre-paid, as well as electronically: MICHAEL DEWINE ERICE. MURPHY (counsel of record) PETER T. REED HANNAH C. WILSON THOMAS E. MADDEN JOCELYN K. LOWE CHARLES L. WILLE KATHERINE E. MULLIN OFFICE OF THE OHIO ATTORNEY GENERAL 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 Eric.M urphy@OhioAttorneyGeneral.gov tnd f_ · (/r~llJ/i