CASE NO. _______ (CAPITAL CASE)
IN THE SUPREME COURT OF THE UNITED STATES
____________________________________________________________

In re CHARLES RUSSELL RHINES, Petitioner
_________________________
On Petition for Original Writ of Habeas Corpus
_________________________
APPLICATION FOR STAY OF EXECUTION
THIS IS A CAPITAL CASE WITH AN EXECUTION SCHEDULED
FOR THE WEEK OF NOVEMBER 3, 2019
________________________________________________________________

Jason J. Tupman
Acting Federal Public Defender
Office of the Federal Public Defender
District of South Dakota and
District of North Dakota
200 W. 10th Street, Suite 200
Sioux Falls, SD 57104
(605) 330-4489

Claudia Van Wyk*
Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106
(215) 928-0520
*Counsel of Record

Member of the Bar of the Supreme Court

Counsel for Petitioner, Charles Russell Rhines
Dated: November 1, 2019

 TABLE OF CONTENTS
MR. RHINES IS ENTITLED TO A STAY OF EXECUTION ...................................... 1
I.

His Petition Has a “Significant Possibility of Success on the Merits.” ............. 2

II. The Balance of Harm Weighs in Mr. Rhines’s Favor. ....................................... 4
III. The Pulic Has an Interest in Ensuring Mr. Rhines’s Claim Is Heard. ............. 4

i

 TABLE OF AUTHORITIES
Federal Cases

Buck v. Davis, 137 S. Ct. 759 (2017) ........................................................................... 5
Felker v. Turpin, 518 U.S. 651 (1996) ......................................................................... 2
Hill v. McDonough, 547 U.S. 573 (2006) ................................................................. 1, 2
In re Davis, 557 U.S. 952 (2009) ............................................................................. 2, 3
Nken v. Holder, 556 U.S. 418 (2009) ........................................................................... 2
Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017) ................................................ 3, 5
Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) ...................................................... 5
Federal Statutes
28 U.S.C. § 2241 ........................................................................................................... 2

ii

 To the Honorable Neil M. Gorsuch, Associate Justice of the Supreme Court of
the United States and Circuit Justice for the Eighth Circuit:
The State of South Dakota has scheduled the excuetion of Charles Rhines for
the week of November 3, 2019, to November, 9, 2019. Mr. Rhines requests a stay of
execution pending the consideration and disposition of his petition for a writ of
habeas corpus that he is filing simultaneously with this application. That petition
invokes the extraordinary jurisdiction of this Court because the traditional avenues
for relief via the state and federal courts have not provided Mr. Rhines a forum to
litigate his claim that jurors who sentenced him to death relied on his sexual
orientation in making their sentencing decision, violating his due process and
Eighth Amendment rights.
Mr. Rhines now seeks a stay of execution so that this Court can review his
meritorious claim for relief.
MR. RHINES IS ENTITLED TO A STAY OF EXECUTION
Charles Rhines, pursuant to Supreme Court Rule 23, respectfully requests
that this Court stay his execution pending consideration of his concurrently filed
petition for an original writ of habeas corpus. See Hill v. McDonough, 547 U.S. 573,
584 (2006). A motion for a stay of execution pending judicial review is analyzed
according to the following four factors: (1) whether the 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
1

 interest lies. Nken v. Holder, 556 U.S. 418, 434 (2009) (internal citations and
quotations omitted); Hill v. McDonough, 547 U.S. 573, 584 (2006). On balance, these
factors weigh strongly in Mr. Rhines’s favor.
I.

His Petition Has a “Significant Possibility of Success on the Merits.”

Mr. Rhines seeks an extraordinary writ. This Court possesses the power “to
entertain original habeas petitions,” Felker v. Turpin, 518 U.S. 651, 658 (1996), and
to “transfer[] the application for hearing and determination” to a district court,
§ 2241(b). In In re Davis, the Court exercised that power because “[t]he substantial
risk of putting an innocent man to death clearly provides an adequate justification
for holding an evidentiary hearing. Simply put, the case is sufficiently ‘exceptional’
to warrant utilization of this Court’s Rule 20.4(a), 28 U.S.C. § 2241(b), and [its]
original habeas jurisdiction.” 557 U.S. 952, 952 (2009) (Stevens, J., concurring). In
the same way, the substantial risk of executing a man whose death sentence was
based on his sexual orientation, and jurors’ pernicious stereotypes about how a gay
man would view a lifetime in prison, justifies the exercise of that power and an
evidentiary hearing.
Charles Rhines repeatedly has sought to prove that jurors who sentenced him
to death relied on anti-gay prejudice in making their decision. Mr. Rhines sought an
evidentiary hearing in the state and federal courts on the basis of multiple jurors’
statements reflecting stereotypes and animus aimed at his sexual orientation.
One juror who had voted for death stated that “we also knew that [Mr.
Rhines] was a homosexual and thought that he shouldn’t be able to spend his life
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 with men in prison.” A second juror indicated about deliberations: “One juror
made . . . a comment that if he’s gay, we’d be sending him where he wants to go if
we voted for [life imprisonment without the possibility of parole].” And a third juror
noted that there had been “lots of discussion of homosexuality” and “a lot of
disgust.”
No court has permitted a hearing to assess these statements or judged the
constitutionality of Mr. Rhines’s death sentence in light of them.
Mr. Rhines meets the criteria for the issuance of an extraordinary writ. A
petitioner seeking one must demonstrate “that adequate relief cannot be obtained in
any other form or from any other court,” “that exceptional circumstances warrant
the exercise of the Court’s discretionary powers,” and “that the writ will be in aid of
the Court’s appellate jurisdiction.” Id. Mr. Rhines has attempted, without success,
to obtain relief for the violation of his rights from the courts below. The lower courts
reached that decision in spite of Mr. Rhines’s efforts to seek relief after this Court
had decided Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), but before he had
completed appellate proceedings arising from the district court’s denial of his initial
federal habeas petition. App. 162-210.
Mr. Rhines has satisfied the exhaustion-of-state-remedies requirement. He
unsuccessfully sought relief from judgment in the South Dakota Supreme Court,
reconsideration of that court’s prior review of the death sentence, and a hearing. See
App. 3-4. No other remedies are available. The Governor of South Dakota has not
exercised her powers to grant Mr. Rhines executive clemency.
3

 Mr. Rhines cannot obtain “adequate relief . . . in any other form or from any
other court.” Sup. Ct. R. 20.4(a). As the habeas petition filed with this motion makes
clear, if this Court grants Mr. Rhines a stay of execution, there is a strong likelihood
that Mr. Rhines will ultimately succeed on the merits of his claim for relief. Pet. at
12-18.
II.

The Balance of Harm Weighs in Mr. Rhines’s Favor.

The second and third factors – whether the applicant will be irreparably
injured absent a stay and whether issuance of the stay will substantially injure the
other parties interested in the proceeding – weigh in Mr. Rhines’s favor. The harm
to Mr. Rhines of being put to death without ever having his meritorious claims
decided is obvious. By contrast, the State’s interest in securing Mr. Rhines’s
imminent execution is only minimally affected by the delay necessary for the Court
to rule on his petition. A State’s interest in carrying out an execution cannot
outweigh the interest of Mr. Rhines and the public in ensuring that this important
claim is decided on its merits.
III.

The Pulic Has an Interest in Ensuring Mr. Rhines’s Claim Is Heard.

Anti-gay bias, if left unaddressed in this case, risks systemic harm to the
justice system. The public has a strong interest in ensuring that the merits of Mr.
Rhines’s claim are reviewed. The State of South Dakota will soon execute a man
whose jurors considered his sexual orientation and longstanding, but deeply
disturbing, stereotypes about how a gay man would experience imprisonment in
making their decision to sentence him to death. The lack of judicial review of this
4

 claim threatens the public's confidence in the criminal justice system. "[T]he

appearance and reality of impartial justice are necessary to the public legitimacy of
judicial pronouncements and thus to the rule of law itself." Williams v.
Pennsylvania, 136 S. Ct. 1899, 1909 (2016); see also Buck v. Davis, 137 S. Ct. 759,

778 (2017) (relying on racist stereotypes "poisons public confidence in the judicial

process," and undermines the legitimacy of "the law as an institution, the
community at large, and the democratic ideal reflected in the processes of our
courts" (with alterations)); Pena -Rodriguez, 137 S. Ct. at 869 (finding constitutional
remedy for juror's racial bias is "necessary to prevent a systemic loss of confidence
in jury verdicts").
**

*

For the foregoing reasons and those explained in his petition for habeas

corpus, Mr. Rhines respectfully requests that the Court stay his execution pending
its consideration of his meritorious claim for relief.
Respectfully submitted,

Jason J. Tupman
Acting Federal Public Defender
Office of the Federal Public Defender
District of South Dakota and
District of North Dakota
200 W. 10th Street, Suite 200

Claudia Van Wyk*

Stuart Lev
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
601 Walnut Street, Suite 545 West
Philadelphia, PA 19106

Sioux Falls, SD 57104
(605) 330-4489

(215) 928-0520
* Counsel of Record

Member of the Bar of the Supreme Court
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