CASE NO. 19-6479/19A-484 (CAPITAL CASE)
IN THE SUPREME COURT OF THE UNITED STATES
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In re CHARLES RUSSELL RHINES, Petitioner
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REPLY IN SUPPORT OF PETITION FOR A WRIT OF HABEAS CORPUS
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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 2, 2019

 REPLY IN SUPPORT OF A PETITION FOR A WRIT OF CERTIORARI
Stripped of its bluster and rhetoric, the StateÊs Brief in Opposition (BIO)
argues that Mr. RhinesÊs evidence of juror bias is not to be believed because other
evidence, described in a hearsay affidavit from a state investigator, disputes it. In
an ordinary case, such factual dispues can be resolved through an evidentiary
hearing. This case, at bottom, is no different. In the context of this request for the
Court to exercise its original habeas jurisdiction, the precise legal questions before
the Court are relatively straightforward. Is the prospect that anti-gay bias affected
even a single jurorÊs decision to vote for death extraordinary enough, and are the
factual disputes significant enough, to warrant this CourtÊs intervention and a
remand to the district court even at this late stage of the proceedings?
This Court should answer the questions affirmatively. The BIO does not
dispute the notion that a sentence of death based on what it describes as a jurorÊs
„homophobic‰ bias would be constitutionally intolerable. Instead, the BIO disputes
the sufficiency and timing of Mr. RhinesÊs evidence. This Court need not definitively
determine these disputes. Rather, these disputes should be resolved at an
evidentiary hearing.
Although the BIO repeatedly asserts that Mr. Rhines has been dilatory, he
has made repeated efforts to obtain judicial review of his claims. As the BIO
concedes, Mr. Rhines made attempts in both the state and federal courts to have
these disputes reviewed and resolved and has twice presented these issues to this
Court. See Petition at 4–8 (describing efforts to raise juror bias prior to this CourtÊs
decision in Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017)). After Pena
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 Rodriguez, Mr. Rhines again raised bias claims, seeking an evidentiary hearing to
resolve disputes about the accuracy and reliability of the juror affidavits he had
proffered. Petition at 8–11 (describing the factual disputes and Mr. RhinesÊs efforts
to secure judicial review). But, to date, largely because of the procedural context in
which those claims were presented, no court has been willing·or perceived that it
had power·to do so. This request for original habeas relief allows this Court to now
determine whether a hearing should be held before Mr. Rhines is to be executed
perhaps in part because of his sexual orientation, unencumbered by the prior
procedural obstacles.
The StateÊs contention that Mr. Rhines was dilatory in filing an original writ
shows its misunderstanding of the requirements for this extraordinary form of
relief. The writ is not available unless „adequate relief cannot be obtained in any
other form or from any other court.‰ Felker v. Turpin, 518 U.S. 651, 665 (1996).
Thus, as long as Mr. Rhines has been seeking adequate relief from his death
sentence in other forums·and, as this Court knows, he has been seeking and
continues to seek such relief·his request for an extraordinary writ is not dilatory.
The myriad other procedural objections raised in the BIO require fuller
briefing and argument and need not be decided at this time. See In Re Davis, 557
U.S. 952, 952 (2009) (Stevens, J., concurring). As Justice Stevens pointed out,
whether the limitations of ordinary habeas litigation apply or should apply to this
CourtÊs original jurisdiction is a question that has not yet been decided by this
Court and may be deserving of development in the District Court. Id. In this case,
similarly, the implications of 28 U.S.C. §§ 2244 and 2254 in the context of an
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 original writ require development below. The only question before this Court is

whether Mr. Rhines's factual allegations are significant enough, and the prospect of
executing a man because of his sexual orientation is extraordinary enough, to

deserve consideration and a hearing in the District Court.
CONCLUSION

For these reasons and those in Mr. Rhines's petition, this Court should grant
a writ of certiorari to resolve the questions presented.
Respectfully submitted,

Claudia Van Wyk*

Jason J. Tupman
Acting Federal Public Defender

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

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

(215) 928-0520
* Counsel of Record

Member of the Bar of the Supreme Court
Counsel for Petitioner, Charles Russell Rhines

Dated: November 2, 2019

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