No. 18A-815
CAPITAL CASE
EMERGENCY PETITION; EXPEDITED CONSIDERATION REQUESTED
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In the SUPREME COURT of the UNITED STATES
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In re: COMMISSIONER, Alabama Department of Corrections
DOMINEQUE HAKIM MARCELLE RAY,
Plaintiff–Appellant,
v.
COMMISSIONER, Alabama Department of Corrections
Defendant–Appellee.
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STATE’S RESPONSE TO OPPOSITION TO EMERGENCY MOTION
AND APPLICATION TO VACATE STAY OF EXECUTION
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Steve Marshall
Attorney General
Richard D. Anderson
Assistant Attorney General
Counsel of Record *

February 7, 2019

Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
randerson@ago.state.al.us
(334) 353-3637 Fax
(334) 242-7300

EXECUTION SCHEDULED THURSDAY, FEBRUARY 7, 6:00 P.M. C.S.T.

 Counsel for Domineque Ray having filed their opposition to the State’s
emergency motion and application to vacate the Eleventh Circuit’s stay of Ray’s
execution, currently scheduled for 6 p.m. this evening, the State offers a brief
response.

I.

The affidavit of Jefferson S. Dunn should be considered as a matter of
equity.
Ray argues that the affidavit of Commissioner Jefferson S. Dunn should not

be considered by this Court in evaluating the State’s motion to lift the stay of
execution imposed by the Eleventh Circuit Court of Appeals.1 But as the State
explained in its initial motion and explains further below, the Eleventh Circuit’s lastminute stay should be vacated, regardless whether this Court also considers
Commissioner Dunn’s affidavit. Ray never satisfied his initial burden as to Claims
1 and 2 of his petition, which were that RLIUPA required the State to (1) exclude
the Holman chaplain (an ADOC employee) from the execution chamber and
(2) allow Ray to bring his own non-ADOC-employee spiritual adviser into the
execution chamber. And Ray’s third claim—that the Establishment Clause requires
the State to exclude the Holman chaplain from the execution chamber—was mooted
before the Eleventh Circuit ever granted its stay because the State has agreed to
exclude the Holman chaplain from the execution chamber.

1. Opposition to State’s Emergency Motion at 2–3.
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 In any event, the Court has the discretion and should consider Commissioner
Dunn’s affidavit. Stays of execution are matters of equity, and as shown in the
State’s motion, the Eleventh Circuit improperly held the State to an evidentiary
burden not imposed on the Petitioner when it determined that Ray was “substantially
likely to succeed on the merits” of his claims. As argued in the State’s motion, the
State’s inability to offer the full evidentiary basis for its compelling governmental
interests in maintaining the safety and security of execution proceedings was
dictated by Ray’s delay raising what is, in effect, a challenge to the procedures
surrounding his execution.
Further, because this Court is making an equitable determination when
evaluating the propriety of the stay imposed by the Eleventh Circuit and the State’s
motion to lift that stay, it is not improper for this Court to consider the certain fact
that had Ray’s action been brought in a timely manner, the State would have been
able to offer substantial evidence supporting the necessity of strictly regulating
access to the one place in Holman Prison where the State’s most solemn, serious,
and sensitive duties are carried out. During the initial motions hearing in district
court, held less than seventy-two hours after the State received service of Ray’s
RLUIPA action, the district court noted the “strong equitable presumption that arises
when you wait to raise a substantial issue in an execution case that cannot be resolved

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 without a full hearing prior to the execution.”2 Ray’s late filing deprived the State of
a reasonable opportunity to present the district court with the present affidavit just
as it deprived the State of a reasonable opportunity for “a full hearing and a full
trial.”3 In weighing the equities in this matter, there is no impropriety in this Court
considering the affidavit, if not for its substance then for the purpose of determining
whether the State would have been able to offer the requisite evidentiary support
absent the urgency created by Ray’s delay in bringing this action.
Moreover, to the extent that Ray relies on Cullen v. Pinholster4 for the
proposition that this Court should not consider the State’s affidavit, his reliance is
misplaced. In Cullen, this Court was reviewing a state court’s merits determination;
pursuant to AEDPA and this Court’s precedent, review “under § 2254(d)(1) focuses
on what a state court knew and did.”5 Thus, in Cullen, it made perfect sense to restrict
the federal court’s review to matters that were placed before the state courts. But that
is not the case here. Here, this Court is called on to review not a finding of fact by a
state court, but rather an equitable determination by a federal court. Moreover, in
granting equitable relief in the present case, the Eleventh Circuit improperly held the
State to an evidentiary standard that it did not apply to Ray. Finally, Ray’s RLUIPA

2. Hearing Transcript at 8, Ray v. Dunn, 2:19-cv-00088-WKW-CSC (M.D. Ala. Jan.
31, 2019).
3. Id. at 21.
4. 563 U.S. 170, 182 (2011).
5. Id.
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 action was delayed until the last moment, impairing the State’s ability to respond
with an affidavit, or any other evidentiary showing, in district court. This Court has
condemned “last-minute attempts to manipulate the judicial process” and held that
“[a] court may consider the last-minute nature of an application to stay execution in
deciding whether to grant equitable relief.”6 Under the present circumstances, this
Court’s consideration of the State’s affidavit, if only as an indication of what the
State would have been able to show in district court absent the eleventh-hour nature
of this action, is not improper.

II.

The Eleventh Circuit improperly shifted the burden to the State.
Ray fails to address the State’s argument that the Eleventh Circuit improperly

shifted the burdens in this matter. Pursuant to RLUIPA, Ray’s initial burden was to
demonstrate that the ADOC’s policy of restricting access to the execution chamber
resulted in a “substantial burden” on his religious exercise. In the district court, Ray
offered nothing beyond mere assertions that this was so. Perhaps more importantly,
the Eleventh Circuit also shifted Ray’s burden onto the State by effectively requiring
the State to show that it was substantially likely to succeed on the merits of Ray’s
RLUIPA claim. Instead of holding Ray to his burden, the Eleventh Circuit
mistakenly applied the State’s burden to disprove a substantive claim at an

6. Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992).
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 evidentiary hearing and granted the stay because “Alabama has presented us with
nothing in support of its claims.”7 But when considering the stay request, it was Ray
who had the burden of demonstrating a substantial likelihood of success, not the
State. The district court, on the other hand, properly held that to obtain a stay of
execution, Ray had to establish a substantial likelihood that he would prevail on the
merits. Ray also failed in this regard because he did not show that it was substantially
likely that the State could not justify its policies.
Nonetheless, in granting Ray’s motion to stay, the Eleventh Circuit waived
Ray’s threshold burden, noting merely that it “need not decide” whether Ray’s
assertions were sufficient. The Court then proceeded to grant Ray the requested
equitable relief because the State also relied on assertions in responding to Ray’s
eleventh-hour RLUIPA action. Thus, the Eleventh Circuit relieved Ray of his
threshold burden under RLUIPA but held the State to its responsive burden. This
impermissible burden shifting was an abuse of the Eleventh Circuit’s discretion. As
the district court properly held, Ray failed to sustain his burden of proving a
substantial likelihood of success on the merits of his RLUIPA claim. This Court
should therefore grant the State’s motion to vacate the stay entered by the Eleventh
Circuit.

7. Ray v. Comm’r, No. 19-10405, at 18, 22 (11th Cir. Feb. 6, 2019).
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 III.

The Holman chaplain will not be present in the execution chamber during
Ray’s execution, and Ray has received a Qur’an.
Ray draws this Court’s attention to language inadvertently included in the

State’s original motion due to a scrivener’s error and removed in the amended
motion concerning whether the chaplain of Holman Correctional Facility will be
present during his execution.8 The removed language is not the position of the
Alabama Department of Corrections, which is why the State filed an amended
motion. There has been no change to the ADOC’s policy. As the ADOC made plain
in the district court, however, because of Ray’s religious beliefs, the ADOC has
agreed to exclude the chaplain from the execution chamber for Ray’s execution.
Ray also mentions a motion filed late last night regarding the ADOC’s alleged
refusal to allow him to have a copy of the Qur’an in his holding cell.9 It is the State’s
understanding that a copy of the Qur’an was available to Ray—who, incidentally,
had been permitted to bring his prayer mat into the holding cell—but that Ray had
not requested the Qur’an. Instead, he filed a motion, which was quickly resolved this
morning. The motion has since been withdrawn.

8. Opposition to State’s Emergency Motion at 9.
9. Id. at 9–10.
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 CONCLUSION
The State respectfully requests that this Honorable Court vacate the stay of
execution.
Respectfully submitted,
Steve Marshall
Alabama Attorney General
s/Richard D. Anderson
Richard D. Anderson
Assistant Attorney General

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 CERTIFICATE OF SERVICE
I hereby certify that on this 7th day of February 2019, I did serve a copy of
the foregoing on the attorneys for Domineque Ray by electronic mail, addressed as
follows:
John Palombi
John_Palombi@fd.org
Spencer J. Hahn
Spencer_Hahn@fd.org

s/Richard D. Anderson
Richard D. Anderson
Assistant Attorney General
Counsel of Record *

_

State of Alabama
Office of the Attorney General
501 Washington Avenue
Montgomery, Alabama 36130-0152
(334) 242-7300
(334) 353-3637 Fax
randerson@ago.state.al.us

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