No. 19A-486
IN THE

Supreme Court of the United States
_________

CHARLES RUSSELL RHINES,
Petitioner,
v.
SOUTH DAKOTA DEPARTMENT OF CORRECTIONS, MIKE
LEIDHOLT, SECRETARY, SOUTH DAKOTA DEPARTMENT
OF CORRECTIONS, AND DARIN YOUNG AS WARDEN OF
THE SOUTH DAKOTA STATE PENITENTIARY,
RESPONDENTS.
_________
REPLY TO BRIEF IN OPPOSITION TO
APPLICATION FOR STAY OF EXECUTION
CAPITAL CASE: IMMINENT EXECUTION
November 4, 2019 at 1:30 PM (Central)
_________
ELLIOT H. SCHERKER
GREENBERG TRAURIG, P.A.
333 SE 2nd Ave.
Suite 4400
Miami, FL 33131
DANIEL R. FRITZ
BALLARD SPAHR LLP
101 South Reid St.,
Suite 302
Sioux Falls, SD 57103

CAROLINE J. HELLER
Counsel of Record
GREENBERG TRAURIG, LLP
200 Park Ave.
New York, NY 10166
hellerc@gtlaw.com
(212) 801-2165

Counsel for Petitioner

 1
REPLY TO BRIEF IN OPPOSITION TO
APPLICATION FOR STAY OF EXECUTION
_________
I.

RHINES WILL BE IRREPARABLY
HARMED IF THE STATE OF SOUTH
DAKOTA
IS
PERMITTED
TO
EXECUTE HIM IN VIOLATION OF HIS
RIGHT TO SELECT THE METHOD OF
EXECUTION THAT IS GUARANTEED
BY SOUTH DAKOTA LAW.

South Dakota does not dispute that execution is
irreparable injury. Brief in Opposition (Opposition) at
13.
II.

SOUTH
DAKOTA
IS
DENYING
PETITIONER DUE PROCESS OF LAW
IN REFUSING TO EXERCISE HIS
STATE-LAW RIGHT TO CHOOSE THE
MEANS OF HIS DEATH.

Respondents do not deny that in enacting SDCL §
23A-27A-32.1, considering the statutory structure,
Rhines has a life interest that entitles him to be
executed in the manner provided by South Dakota law
at the time of the Rhines’s conviction or sentence and
that this life interest in being executed in this manner
is protected by the Due Process Clause of the
Fourteenth Amendment of the United States
Constitution. (Compl. ¶¶ 51-56.)
Instead, Respondents assert that Rhines cannot
show that he has a liberty interest arising out of SDCL
§ 23A-27A-32.1 because he cannot show that
execution by pentobarbital would impose an “atypical
and significant hardship” on him, citing Sandin v.
Conner, 515 U.S. 472 (1995).
Yet Sandin is

 2
distinguishable because it addressed only when due
process liberty interests are created by internal prison
regulations. Id. at 483. As the Ninth Circuit
recognized in McQuillion v. Duncan, 306 F.3d 895,
903 (2002): “It is clear from the Court’s framing of the
problem in Sandin, and from the fact that Sandin
cited [Board of Pardons v. Allen, 482 U.S. 369, (1987)]
with approval… that Sandin’s holding was limited to
internal prison disciplinary regulations.” See also
Wilkinson v. Austin, 545 U.S. 2009 (2005) (“In Sandin,
we criticized this methodology [in Hewitt v. Helms,
459 U.S. 460 (1983)] as creating a disincentive for
States to promulgate procedures for prison
management, and as involving the federal courts in
the day-to-day management of prisons…. For these
reasons, we abrogated the methodology of parsing the
language of particular regulations.”)
Rhines’s case involves a statutory interest created
by the South Dakota Legislature concerning the
manner and method of death. The constitutional
protection of such an interest is analogous to Wolff v.
McDonnell, 418 U.S. 539, 556–558, (1974) where the
Supreme Court held that a life or liberty interest may
arise from an expectation or interest created by state
laws or policies. See id. (liberty interest in avoiding
withdrawal of state-created system of good-time
credits); Bagley v. Rogerson, 5 F.3d 325, 328 (8th Cir.
1993) (“[S]tate law may create a ‘liberty interest’
protected by the Fourteenth Amendment… [i]f, for
example, a state statute gives ‘specific directives to
the decision maker that if the [statute’s] substantive
predicates are present, a particular outcome must
follow,’ a ‘liberty interest’ protected by the Fourteenth
Amendment is created.”) (quoting Kentucky

 3
Department of Corrections v. Thompson, 490 U.S. 454,
463 (1989)); Hicks v. Oklahoma, 447 U.S. 343, 346
(1980) (Oklahoma statute providing jury could impose
a sentence of no fewer than 10 years in prison created
a liberty interest protected by the 14th Amendment in
defendant having the jury apply that sentence).
Accordingly, Rhines need not show an atypical and
significant hardship, but merely that South Dakota
created a right and Rhines was deprived of that right
by South Dakota. See Osloond v. Farrier, 659 N.W.2d
20, 24 (S.D. 2003); DeShaney v. Winnebago County
Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S.Ct. 998,
1003, 103 L.Ed.2d 249, 258 (1989). Here, in enacting
SDCL § 23A-27A-32.1, the State of South Dakota
created life and liberty interests that entitle Rhines to
be executed in the manner provided by South Dakota
law at the time of the Rhines’s conviction or sentence.
See SDCL § 23A-27A-32.1.
The South Dakota
Legislature enacted this provision in February of 2007
and made no changes to it when the Legislature
amended portions of § 23A-27A-32 in 2008.
III.

SOUTH DAKOTA’S INVOCATION OF
RES JUDICATA TO BAR RHINES’S
CLAIM IS AN UNCONSTITUTIONAL
APPLICATION OF A STATE-LAW
DOCTRINE.

The State argues that, ”[i]f Rhines had wanted to
protest that South Dakota’s lethal injection protocol is
an unlawful deviation from [the] statute, South
Dakota’s courts provided an appropriate venue for
that suit.” Opposition at 8. The State ignores that
Rhines’s claim only arose when the State refused to
honor his election to use the 1993 protocol.

 4
Mr. Rhines was not dilatory in seeking to enforce his
statutory right to be executed according to the law in
existence at the time of his conviction. To be clear,
Mr. Rhines could not have brought the instant action
to enforce his statutory right until the State informed
him on October 17, 2019, that it would not comply
with its statutory obligations. There was no
foreseeable, let alone ripe, issue regarding the State’s
use of pentobarbital until the State indicated, on
October 17, 2019, that it would not comply with its
statutory obligations
Indeed, if anything, the State’s October 24, 2011
Notice of Adoption of Revised Execution Policy and
Protocol would have put Mr. Rhines on notice that the
State would comply with the law in effect in 1993 if
Mr. Rhines so elected, not that it would disregard the
statute’s plain language. And far from “provid[ing] an
appropriate venue,” the South Dakota trial court
refused even to reach that question.
The irrationality of that application of res judicata
is, as set forth in the Application, a federal due process
question. The State offers no response to Rhines’s argument, citing only to state res judicata law. The unavoidable truth is that no state court has actually decided the constitutional claim that Rhines has
brought in this action.

 5

Respectfully,
ELLIOT H. SCHERKER
GREENBERG TRAURIG, P.A.
333 SE 2nd Ave.
Suite 4400
Miami, FL 33131
DANIEL R. FRITZ
BALLARD SPAHR LLP
101 South Reid St.,
Suite 302
Sioux Falls, SD 57103

November 4, 2019

CAROLINE J. HELLER
Counsel of Record
GREENBERG TRAURIG, LLP
200 Park Ave.
New York, NY 10166
hellerc@gtlaw.com
(212) 801-2165