HALL v. WATSON
ORDER DENYING MOTION FOR STAY OF EXECUTION - Less than a week ago, this Court denied Mr. Hall's petition for a writ of habeas corpus under 28 U.S.C. § 2241, and Mr. Hall filed a second § 2241 petition. Before the Court is Mr. Hall 039;s motion for a stay of execution pending resolution of his second § 2241 petition. Mr. Hall's motion for stay of execution, dkt. 3 , is DENIED. The motion for oral argument, dkt. 4 , is DENIED as moot. (See Order.) Signed by Judge James Patrick Hanlon on 11/17/2020. (RSF)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
ORLANDO CORDIA HALL,
T.J. Watson, in his official capacity as.
Complex Warded of U.S.P., Federal
Correctional Complex (FCC) Terre Haute
ORDER DENYING MOTION FOR STAY OF EXECUTION
Orlando Cordia Hall is a federal prisoner scheduled to be executed on
November 19, 2020. In 1995, a federal jury in Texas convicted Mr. Hall of
multiple crimes related to the kidnapping and murder of 16-year-old Lisa Rene
and sentenced him to death on the charge of kidnapping resulting in death. The
district judge imposed the death sentence for that conviction and imposed
multiple terms of imprisonment for the other counts of conviction. The
convictions and corresponding sentences imposed were upheld on appeal.
Mr. Hall filed a petition for postconviction relief under 28 U.S.C. § 2255. In 2004,
the district judge in Texas denied Mr. Hall relief, and that ruling was affirmed by
the Fifth Circuit. In 2016 and 2020, the Fifth Circuit denied Mr. Hall's requests
to file a successive § 2255 motion.
Less than a week ago, this Court denied Mr. Hall's petition for a writ of
habeas corpus under 28 U.S.C. § 2241, and Mr. Hall filed a second § 2241
petition. Before the Court is Mr. Hall's motion for a stay of execution pending
resolution of his second § 2241 petition. The Court considers several factors
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when evaluating this motion, and Mr. Hall must make a "strong showing" that
(1) that there is a "structural problem" with § 2255 that prevented him from
raising the issues that he presents in this case and (2) he would be entitled to
relief on the merits if the issues he raises were relitigated. Because Mr. Hall has
not demonstrated a strong likelihood that he can make the required showing,
and because Mr. Hall has not demonstrated that he diligently pursued his
claims, his motion for stay of execution must be denied.
FACTUAL AND PROCEDURAL BACKGROUND
A full recitation of the facts and procedural background is set forth in
United States v. Hall, 152 F.3d 381, 389−90 (5th Cir. 1998) ("Hall I"), United
States v. Hall, 455 F.3d 508, 510−13 (5th Cir. 2006) ("Hall II"), and In re: Orlando
Cordia Hall, --- F.3d ----, ----, 2020 WL 6375718, at *1−2 (5th Cir. 2020)
A. Factual Background
While the details of Mr. Hall's crime are not relevant to the ultimate
resolution of his legal claims, a brief summary is appropriate for context. The
following facts are summarized from Mr. Hall's direct appeal. See Hall I, 152 F.3d
at 389–90. Mr. Hall and several confederates ran a marijuana trafficking
enterprise in Pine Bluff, Arkansas. On September 21, 1994, they traveled to
Dallas, Texas, where they paid two local dealers $4700 to purchase marijuana.
After the dealers claimed the $4700 was stolen, Mr. Hall and his confederates
began surveilling an apartment where they had seen the dealers and concluded
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the dealers scammed them. The men broke into the apartment and encountered
one dealer's sister, Ms. Rene. They kidnapped Ms. Rene and dragged her to a
car, where Mr. Hall raped her. The men drove from Arlington, Texas, to Pine
Bluff, Arkansas. In Pine Bluff, they rented a motel room, tied Ms. Rene to a chair,
and repeatedly raped her. The next day, they took her to a nearby park where
they had dug a grave and beat her over the head with a shovel. One of the men
covered Ms. Rene in gasoline, and they then buried her alive.
B. Procedural Background
Unless otherwise noted, the following procedural history is summarized
from the Fifth Circuit's decision denying a certificate of appealability following
the denial of Mr. Hall's § 2255 motion. Hall II, 455 F.3d at 512−13.
1. Indictment, trial and sentencing
On October 26, 1994, Mr. Hall was charged in the United States District
Court for the Northern District of Texas, Fort Worth Division, with kidnapping
in violation of 18 U.S.C. § 1201 (a)(1). On November 4, 1994, a grand jury
returned a six-count superseding indictment charging Mr. Hall with kidnapping
in which a death occurred in violation of 18 U.S.C. § 1201(a)(1) and five other
offenses. On February 23, 1995, the government filed its notice of intent to seek
the death penalty against Mr. Hall.
Mr. Hall's jury trial began on October 2, 1995. He was represented by two
attorneys, Jeffrey Kearney and Michael Ware. Assistant United States Attorneys
("AUSAs") Paul Macaluso and Richard Roper represented the government.
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Voir dire was conducted from October 2 to October 19. Of the one hundred
prospective jurors questioned during voir dire, seven were black. Dkt. 1-9. After
strikes for cause, five qualified black prospective jurors remained. The defense
struck one black juror due to her strong pro-death-penalty views, and the
government peremptorily struck the remaining four, leaving no black jurors.
Mr. Hall raised a Batson challenge at trial. Dkt. 1-11 at 8−9. The district court
overruled Mr. Hall's objections based on the facially neutral reasons stated by
the government in support of its strikes. Id. at 11–16.
The jury found Mr. Hall guilty of several counts, including kidnapping
resulting in death. Hall I, 152 F.3d at 390. After a separate penalty phase of the
trial, the jury recommended that he be sentenced to death. Id. The district court
accepted the jury's recommendation and sentenced Mr. Hall to death.
2. Direct appeal of conviction and sentence
Mr. Hall challenged his conviction and sentence on direct appeal, raising
11 issues. Hall I, 152 F.3d at 390-391. The Fifth Circuit affirmed the conviction
and sentence, id. at 427, and the Supreme Court declined review. Hall v. United
States, 526 U.S. 1117 (1999).
3. Post-conviction challenges to conviction and sentence in the court
In May 2000, Mr. Hall filed a petition for postconviction relief under
28 U.S.C. § 2255 seeking to vacate his conviction and sentence. He later filed an
amended § 2255 motion and a second amended § 2255 motion.
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In the second amended motion, Mr. Hall raised the following issues:
(1) Mr. Hall's rights under the Fifth Amendment were violated because the
indictment did not allege any aggravating factors that rendered Mr. Hall eligible
for the death penalty;
(2) Mr. Hall was denied his right to the effective assistance of counsel;
(3) a juror's contact with the victim's family and other extraneous
information that entered into the jury's deliberations violated his Fifth, Sixth,
and Eighth Amendment rights;
(4) the government failed to disclose exculpatory information concerning
one of its witnesses;
(5) Mr. Hall's Fifth, Sixth, and Eighth Amendment rights were violated
because of false testimony;
(6) Mr. Hall's Sixth Amendment rights were violated by using a jail inmate
to elicit information from him;
(7) Mr. Hall's Fifth, Sixth, and Eighth Amendment rights were violated
when the government provided a statement with false information to the defense
to dissuade the defense from calling a witness;
(8) the government interfered with Mr. Hall's right to counsel by advising
his first defense team about information that Mr. Hall planned to kidnap his
attorneys in an escape attempt; and
(9) Mr. Hall's rights under the Fifth and Eighth Amendments were violated
by the racially discriminatory effects of the federal capital sentence scheme.
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Hall v. United States, No. 4:00-cv-00422-Y, 2004 WL 1908242, at *4 (N.D. Tex.
Aug. 24, 2004).
In support of the claim that the federal capital sentence scheme violates
the Fifth and Eighth Amendments, Mr. Hall submitted an affidavit from Kevin
McNally discussing racial disparities in the application of the death sentence in
federal cases. Hall v. United States, No. 4:94-cr-00121-Y, dkt. 1071-2 ("McNally
Affidavit May 12, 2000"). Mr. McNally noted that he had collected information,
including the defendant's race, for "all potential federal death penalty cases"
dating back to 1988. Id., ¶¶ 2, 4.
After an evidentiary hearing limited to Ground 3, the district court denied
Mr. Hall's § 2255 petition in an 89-page order that addressed each of the claims
presented. The Fifth Circuit denied Mr. Hall leave to appeal, Hall II, 455 F.3d at
524, and the Supreme Court denied certiorari, Hall v. United States, 549 U.S.
In 2016 and 2019, Mr. Hall sought authorization from the Fifth Circuit to
file successive § 2255 motions challenging the constitutionality of his firearm
conviction under 18 U.S.C. § 924(c). In both instances, the Fifth Circuit denied
leave to file. In re Hall, No. 16-10670 (5th Cir. June 20, 2016); In re Hall, --- F.3d
----, ----, 2020 WL 6375718, at *2 (5th Cir. Oct. 30, 2020).
4. Post-conviction challenges in this Court
Mr. Hall filed a § 2241 petition in this Court raising the same challenges
to his firearms conviction that he raised in the Fifth Circuit. Hall v. Watson,
No. 2:17-cv-00176-JPH-DLP. On November 14, 2020, the Court dismissed his
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petition because the Fifth Circuit had ruled on the merits of his challenges to the
firearms conviction. Id. at dkt. 48.
On November 12, 2020, seven days before the scheduled execution date,
Mr. Hall filed another § 2241 petition in this Court raising two constitutional
challenges. Dkt. 1. First, he alleges that "race-based peremptory strikes infected
[his] trial at every stage." Second, he contends that statistical evidence shows
race-based differences in application of the federal death penalty between black
and non-black defendants. Along with the § 2241 petition, Mr. Hall filed a motion
to stay execution. Dkt. 3. The Court entered a briefing schedule ordering
Respondent to file a response by 5:00 p.m. on November 16, 2020, and for
Mr. Hall to file any reply by 12:00 p.m. on November 17, 2020.
A motion for stay of execution requires the Court to consider 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." Nken
v. Holder, 556 U.S. 418, 434 (2009).
A. Likelihood of Success on the Merits
Because this is a § 2241 petition, Mr. Hall must make a "strong showing"
that (1) there is a "structural problem" with § 2255 that prevented him from
raising the issues that he presents in this case and (2) he would be entitled to
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relief on the merits if the issues he raises were relitigated. Lee v. Watson, 2019
WL 6718924, at *1 (7th Cir. Dec. 6, 2019). While these are distinct issues, they
are intertwined and analyzed together. The Court first sets forth the applicable
Section 2255(e) framework, and then evaluates the merits of Mr. Hall's claims in
the context of that framework.
1. Section 2255 and the Savings Clause
"As a general rule, a federal prisoner wishing to collaterally attack his
conviction or sentence must do so under § 2255." Chazen v. Marske, 938 F.3d
851, 856 (7th Cir. 2019). Congress created within § 2255 a narrow exception to
the "general rule" that requires a federal prisoner to bring a collateral attack
under § 2255. Section 2255(e), aptly described by the Seventh Circuit as the
"savings clause" and the "safety valve," "recognizes a narrow pathway to the
general habeas corpus statute, section 2241." Purkey v. United States, 964 F.3d
603, 611 (7th Cir. 2020); see Webster v. Daniels, 784 F.3d 1123, 1135
(7th Cir. 2015) (en banc).
Under the savings clause, a prisoner can seek a writ of habeas corpus
under § 2241 only if the prisoner can show "that the remedy by [§ 2255] motion
is inadequate or ineffective to test the legality of his detention." 28 U.S.C.
§ 2255(e). Without that showing, a district court cannot reach the merits of the
arguments raised in the petition. Id. (petition otherwise "shall not be
entertained"); Webster, 784 F.3d at 1124 (petition "must be dismissed at the
threshold" if § 2255(e) is not satisfied).
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Section 2255 is inadequate or ineffective as applied to a specific case only
where there is "some kind of structural problem with section 2255." Webster,
784 F.3d at 1136. A structural problem requires "something more than a lack of
success with a section 2255 motion." Id. Section 2255 is inadequate or ineffective
where the court finds that the federal prisoner did not have "a reasonable
opportunity [in a prior § 2255 proceeding] to obtain a reliable judicial
determination of the fundamental legality of his conviction and sentence."
Chazen, 938 F.3d at 856 (alteration in original) (quoting In re Davenport, 147
F.3d 605, 609 (7th Cir. 1998)).
Here, Mr. Hall relies on the path described by the Seventh Circuit in
Webster. Dkt. 1 at 22 ("It is appropriate for this Court to hear this case under
§ 2241 through the path outlined in Webster."). In Webster, the Seventh Circuit
held for the first and only time that the Savings Clause was met for a
constitutional claim. The petitioner in Webster sought to challenge his death
sentence as barred by Atkins v. Virginia, 536 U.S. 304 (2002), which held that
the Eighth Amendment forbids the execution of a person with an intellectual
disability. Although the petitioner had raised an Atkins claim in his § 2255
proceeding, he wished to present "newly discovered evidence" to support that
claim in his § 2241 petition. Webster, 784 F.3d at 1125.
The Seventh Circuit found that "there is no categorical bar against resort
to section 2241 in cases where new evidence would reveal that the Constitution
categorically prohibits a certain penalty." Id. at 1139. The structural problem
identified by the Seventh Circuit was based on at least two concerns. First,
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§ 2255(h)(1) only allows a second or successive § 2255 motion if newly discovered
evidence meets a certain threshold to demonstrate that the petitioner is not
guilty of the offense. Id. at 1134–35, 1138. It does not allow for such motions if
the petitioner presents newly discovered evidence that the petitioner is ineligible
to receive his sentence. Id. Second, Congress could not have contemplated
whether claims of categorical ineligibility for the death penalty should be
permitted in second or successive § 2255 motions because the relevant cases—
Atkins and Roper v. Simmons, 543 U.S. 551 (2005)1—had not been decided when
§ 2255 was enacted. Webster, 784 F.3d at 1138 ("[T]he fact that the Supreme
Court had not yet decided Atkins and Roper at the time AEDPA was passed
supports the conclusion that the narrow set of cases presenting issues of
constitutional ineligibility for execution is another lacuna in the statute."); id. at
1139 ("In Webster's case, the problem is that the Supreme Court has now
established that the Constitution itself forbids the execution of certain people:
those who satisfy the criteria for intellectual disability that the Court has
established, and those who were below the age of 18 when they committed the
Webster is the first and only time the Seventh Circuit permitted a
constitutional claim to proceed through the Savings Clause. Indeed, the court
"took great care to assure that its holding was narrow in scope." Poe v. LaRiva,
834 F.3d 770, 774 (7th Cir. 2016). It limited its holding to the narrow legal and
In Roper, the Supreme Court held that "imposition of the death penalty on offenders who were
under the age of 18 when their crimes were committed" violates the Eighth and Fourteenth
Amendments. 543 U.S. at 578.
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factual circumstances presented in the case, stating explicitly that the case "will
have a limited effect on future habeas corpus proceedings." Webster, 784 F.3d
at 1140 n.9; see Poe, 834 F.3d at 774 ("[T]here is nothing in Webster to suggest
that its holding applies outside the context of new evidence.").
Evidence must meet three conditions to be considered "new" within the
meaning of Webster:
First, the evidence sought to be presented must have existed at the
time of the original proceedings. . . . Second, the evidence must have
been unavailable at the time of trial despite diligent efforts to obtain
it. Third, and most importantly, the evidence must show that the
petitioner is constitutionally ineligible for the penalty he received.
Because the Supreme Court has declared only two types of persons
(minors and the intellectually disabled) categorically ineligible for a
particular type of punishment, our ruling is as a matter of law
limited to that set of people—those who assert that they fell into one
of these categories at the time of the offense. These three limitations
are more than adequate to prevent the dissent's feared flood of
section 2241 petitions[.]
Webster, 784 F.3d at 1140 n.9.
The Court now evaluates the evidence that Mr. Hall characterizes as "new
evidence" in this context.
2. Likelihood of Meeting Webster's Test
Mr. Hall has not made a strong showing that either of his claims relies on
(1) evidence that existed at the time of his original proceedings but (2) was
unavailable to him at those proceedings.
a. Batson Claim
In support of his Batson claim, Mr. Hall points first to Miller-El v. Dretke,
545 U.S. 231 (2005) ("Miller-El II"), where the Supreme Court discussed a manual
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entitled "Jury Selection in a Criminal Case," ("the Sparling Manual"), which was
circulated in the Dallas County District Attorney's Office from 1968 to 1976, and
explicitly urged prosecutors to exclude minorities from jury service. Id. at 264;
see also dkt. 1-6 (Sparling Manual Excerpt). Mr. Hall argues this is material to
his Batson claim because AUSA Macaluso worked in that office while the
Sparling Manual was in use. Mr. Hall claims that at the time of his trial, this
"critical evidence was unavailable, secreted away in the Dallas County District
Attorney's Office," dkt. 1 at 10, insinuating that the manual's existence only
came to light with the issuance of the Supreme Court's decision in Miller-El II in
2005. But the Sparling Manual was referenced by the Supreme Court in a
February 2003 opinion involving the same litigants involved in Miller-El II, see
Miller-El v. Cockrell, 537 U.S. 332, 334–35 (2003) ("Miller-El I"), and Mr. Hall's §
2255 petition was not ruled on until August 2004.2 In fact, the Supreme Court
cited the Sparling Manual excerpt referenced in Miller-El II while Mr. Hall's
§ 2255 petition was pending.
Mr. Hall also alleges that the judicial findings that AUSA Macaluso violated
Batson in Miller-El II and Reed v. Quarterman, 555 F. 3d 364 (5th Cir. 2009),
constitute new evidence because Miller-El II tied AUSA Macaluso to the Sparling
Manual by name and both decisions demonstrated a pattern of his racist juryselection practices. Dkt. 1 at 35 (citing Flowers, 139 S. Ct. at 2245). While the
2 Indeed, the Sparling Manual and the controversy surrounding it has been a matter of public
record since 1986, when it was discussed in a Dallas Morning News story about the Dallas
County Office's practice of excluding black jurors. See Associated Press, Racial Bias Pervades
Jury Selection (Mar. 9, 1986), available at
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2005 Miller-El II opinion was the first Supreme Court opinion to reference AUSA
Macaluso by name, AUSA Macaluso's employment history as a prosecutor in the
Dallas County District Attorney's Office was a matter of public record easily
discoverable by defense counsel well before 2005. And more specific to the
precise claim presented by Mr. Hall, a 2002 article cited by Mr. Hall shows that
AUSA Macaluso's ties to the Sparling Manual were also known while Mr. Hall's
§ 2255 petition was pending before the district judge in Texas. See Associated
Press, Race Is Key in Death Penalty Appeal (Feb. 15, 2002), available at
https://www.mrt.com/news/article/Race-Is-Key-in-Death-Penalty-Appeal7756301.php; Sara Rimer, In Dallas, Dismissal of Black Jurors Leads to Appeal
https://www.nytimes.com/2002/02/13/us/in-dallas-dismissal-of-blackjurors-leads-to-appeal-by-death-row-inmate.html (discussing Macaluso's role in
News articles, court opinions, and underlying briefs are all matters of
public record, discoverable through searches on the Internet and legal
databases. Thus, Mr. Hall's situation is not comparable to Mr. Webster's, where
defense counsel sought the relevant Social Security records but was told they
did not exist when in fact they did. Nor is it comparable to that of the petitioner
in Foster v. Chatman, where an open records request resulted in the accidental
release of incriminating prosecution notes that revealed the prosecutor's
discriminatory intent in striking black jurors. 136 S. Ct. 1737, 1744 (2016).
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The other evidence in support of Mr. Hall's Batson claim also was available
before he filed his § 2255 motion. This includes:
The 1990 census data that shows only 10.41% of the population in
the Fort Worth Division where Mr. Hall was tried was black,
compared with 35.85% of the population in the Pine Bluff Division
in the Eastern District of Arkansas, where Mr. Hall also could have
been tried, dkt. 1-8 at 2;
AUSA Roper's representation to the trial court that the government
had challenged all four of the black jurors it peremptorily struck for
cause, when, in fact, only two had been challenged for cause,
AUSA Roper's stated reasons for dismissing Juror Amy Evans,
which were inconsistent with Ms. Evans's answers during voir dire
and in her questionnaire, dkts. 1-11, 1-13, 1-14; and
Side-by-side comparisons of the questioning of dismissed black
jurors with seated white jurors, dkts. 1-11, 1-14, 1-20–1-33.
In short, the facts underlying Mr. Hall's Batson claims were available
through diligent search during Mr. Hall's § 2255 proceedings. Webster, 784 F.3d
at 1146 (To determine whether relevant evidence was previously unavailable,
"the district court must also evaluate [prior] counsel's diligence."). Mr. Hall's
current Batson claim does not involve evidence that is "newly discovered" but
new lawyers looking at the same evidence that has been available to Mr. Hall for
many years. And "nothing formally prevented him" from raising the claims
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earlier. Mr. Hall raised a multitude of issues on direct appeal and in his § 2255
petition, but the denial of his Batson challenge at trial was not among them.
Mr. Hall therefore has not demonstrated a strong likelihood that he can show §
2255 was "structurally unavailable." Purkey, 964 F.3d at 615.
b. Discriminatory Application of the Death Penalty
Mr. Hall argues that, as administered by the government, the federal death
penalty is racially discriminatory and that this violates the Constitution. Dkt. 1
at 45, 50, 52. He asserts that data shows that federal capital cases are
impermissibly influenced by race. Id. In support of this claim, Mr. Hall points to
statistics maintained by the Kevin McNally of the Federal Death Penalty Resource
Counsel Project, which he alleges demonstrate that "the authorization process
by which the DOJ selects which defendants will face the death penalty . . . [is]
impermissibly influenced by race." Id.
These statistics cited by Mr. Hall show that the death penalty is authorized
by the DOJ 1.8 times as often against black defendants as compared to white
defendants. Dkt. 1 at 46. With these statistics as the backdrop, Mr. Hall asserts
that he was sentenced to death in federal court in Texas, "a state with a long and
shameful history of racially discriminatory use of the death penalty." Id.
Mr. Hall points to a 2011 study by sociologist Scott Phillips, Ph.D., who
was hired by another death row inmate to "conduct a statistical analysis
regarding the possible effect of race on the federal death penalty in Texas." Dkt. 1
at 48; see dkt. 1-7 (Phillips Declaration Mar. 29, 2011). This study examined "all
potential death penalty cases filed in the four federal judicial districts in Texas"
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from 1988 to 2010. Id. The study revealed that during the relevant period, a
death verdict was about sixteen times more likely to be returned for a black
defendant. Dkt. 1 at 49. In the Northern District of Texas (where Mr. Hall was
prosecuted), the disparities were "technically speaking, slightly greater" than
those in other federal districts in Texas. Dkt. 1 at 49-50. According to Mr. Hall,
this study was not available to him until it was discussed in an August 2020
report by the Inter-American Commission on Human Rights. Id. at 48.
Recognizing that "a racially disproportionate pattern of criminal charging,
standing alone, is insufficient to demonstrate purposeful racial discrimination,"
dkt. 1 at 56, Mr. Hall asserts that his statistical evidence is buttressed here by
"case-specific evidence of personal racial animus on the part of the prosecution
The evidence in support of Mr. Hall's discriminatory application claim runs
afoul of Webster's first requirement: "the evidence sought to be presented must
have existed at the time of the original proceedings." 784 F.3d at 1140 n.9.
Without this requirement, "there would never be any finality" where a petitioner
raises a claim, such as discriminatory application of the death sentence, for
which new evidence is regularly created. Id. at 1140; cf. Purkey, 964 F.3d at 615
(holding that petitioner could not satisfy savings clause, in part, because his
argument would open the door to "a never-ending series of reviews and rereviews"). Mr. Hall therefore cannot rely on the study to satisfy § 2255(e) under
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To the extent Mr. Hall relies on the underlying data Dr. Phillips used,
particularly data that existed before Mr. Hall's § 2255 proceedings concluded, he
fails to satisfy Webster's second requirement: "the evidence must have been
unavailable at the time of [the original proceedings] despite diligent efforts to
obtain it." 784 F.3d at 1140 n.9. Dr. Phillips relied on data compiled and
maintained by Kevin McNally "on the cases of all criminal defendants in Texas
who were eligible for a federal death sentence from the reinstatement of the
federal death penalty in 1988 through 2010." Dkt. 1-7 at 3 (Phillips Affidavit
Mar. 29, 2011). Mr. Hall had access to Mr. McNally's data at the time of his
§ 2255 proceedings.3 Indeed, he relied on it in support of the discriminatory
application claim he raised in those proceedings. See United States v. Hall,
No. 4:94-cr-00121-Y, dkt. 1071-2 at 124−32 (McNally Affidavit May 12, 2000).
Because Mr. Hall had this data and relied upon it in his § 2255 proceedings, it
was not previously unavailable as required by Webster.
Mr. Hall has not made a strong showing that his discriminatory
application claim relies upon any evidence that existed but was unavailable at
the time of trial or his initial § 2255 proceedings. Therefore, he has not made a
strong showing that he can satisfy § 2255(e) as to this claim.
Last, Mr. Hall cannot satisfy the third Webster factor because he is not
categorically ineligible for the death penalty. The Supreme Court has declared
To be sure, some of Mr. McNally's 2010 data did not yet exist at the time of Mr. Hall's § 2255
proceedings. Mr. Hall cannot rely on this data for the same reason he cannot rely on the Phillips
study: because "the evidence sought to be presented must have existed at the time of the original
proceedings." Webster, 784 F.3d at 1140 n.9.
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only two types of persons (minors and the intellectually disabled) categorically
ineligible to be executed. Webster, 784 F.3d at 1140 n.9. Persons in those
categories cannot be executed—ever. Here, even if Mr. Hall were to prevail on the
merits of his claims, he would still be eligible for the death penalty.
3. Additional § 2255(e) arguments
Mr. Hall further argues that § 2255 was ineffective or inadequate due to
lack of funding in his initial § 2255 litigation and the slim hopes for bringing a
successful Batson challenge in the Fifth Circuit before Miller-El II, see dkt. 15
at 5−6, but he has not made a strong showing that he is likely to succeed on the
merits of these arguments.
The bounds of the savings clause are not "rigidly defined" by Webster and
the other cases where the Seventh Circuit has found that the savings clause is
satisfied. Purkey, 964 F.3d at 611. But to move beyond those cases, a petitioner
must make "a compelling showing that, as a practical matter, it would [have
been] impossible to use section 2255 to cure a fundamental problem." Id. at 615.
Mr. Hall identifies and explains many of the limitations that his counsel
faced at trial, on appeal, and in litigating his initial § 2255 motion. These
limitations, while real, did not make it practically impossible for Mr. Hall to
litigate his Batson and discriminatory application claims. Instead, they forced
counsel to make difficult strategic decisions about how to litigate in an uncertain
legal environment with limited resources, including choosing which claims to
bring and which claims to forego.
Case 2:20-cv-00599-JPH-DLP Document 18 Filed 11/17/20 Page 19 of 22 PageID #: 1411
Allowing Mr. Hall's claims to be brought now in this § 2241 proceeding
would be contrary to the framework Congress created for federal prisoners
seeking postconviction relief. Congress amended § 2255 in 1996 as part of the
Antiterrorism and Effective Death Penalty Act ("AEDPA") to limit federal prisoners
to one § 2255 motion unless they receive authorization from the Court of Appeals
to file a second or successive § 2255 motion. 28 U.S.C. § 2255(h). This limitation
was designed to curtail the problem of "repetitive filings" from federal prisoners
challenging their convictions. Garza v. Lappin, 253 F.3d 918, 922 (7th Cir. 2001).
Congress chose to "steer almost all [federal] prisoner challenges to their
convictions and sentences toward § 2255." Shepherd v. Krueger, 911 F.3d
861, 862 (7th Cir. 2018). It did so by requiring § 2255 motions to be filed in the
district of conviction, Light v. Caraway, 761 F.3d 809, 812 (7th Cir. 2014), and
limiting federal prisoners' access to § 2241 by way of the Savings Clause. See
Davenport, 147 F.3d at 609 ("The purpose behind the enactment of section 2255
was to change the venue of postconviction proceedings brought by federal
prisoners from the district of incarceration to the district in which the prisoner
had been sentenced." (citing United States v. Hayman, 342 U.S. 205, 212−19
(1952)). Section 2255 "not only relieved the district courts where the major
federal prisons were located from a heavy load of petitions for collateral relief; it
also enhanced the efficiency of the system by assigning these cases to the judges
who were familiar with the records." Webster, 784 F.3d at 1145.
The savings clause "must be applied in light of [§ 2255's] history." Taylor
v. Gilkey, 314 F.3d 832 (7th Cir. 2002); see Unthank v. Jett, 549 F.3d 534, 535
Case 2:20-cv-00599-JPH-DLP Document 18 Filed 11/17/20 Page 20 of 22 PageID #: 1412
(7th Cir. 2008) (same). It cannot be interpreted so expansively that it undermines
"the careful structure Congress has created." Garza, 253 F.3d at 921; see
Chazen, 938 F.3d at 865 (Barrett, J., concurring) (expressing "skeptic[ism]" of an
argument that, if accepted, "risks recreating some of the problems that § 2255
was designed to fix"). To allow Mr. Hall to now raise these claims in a § 2241
petition would undermine the structure of § 2255. "If error in the resolution of a
collateral attack were enough to show that § 2255 is inadequate or ineffective,
many of the amendments made in 1996 would be set at naught." Taylor, 314
F.3d at 836.
B. Other Nken factors
Mr. Hall argues that the other factors also weigh in favor of a stay. First,
he will be irreparably harmed without a stay because he faces death. Dkt. 3-1 at
21. Second, he argues that a brief delay to allow him to litigate him claims will
not result in substantial harm to the government. Dkt. 3-1 at 22. Finally,
Mr. Hall argues that the public interest is served by a stay because when racial
discrimination impacts criminal sanctions it "poisons public confidence in the
judicial process." Dkt. 3-1 at 7. (quoting Buck v. Davis, 137 S. Ct. 759, 778
The government argues that the harm to Mr. Hall is outweighed by the
interest of the government and the public in timely enforcement of criminal
judgments, including the death sentence. Dkt. 12 at 44. Moreover, the
government accuses Mr. Hall of "sitting on his claims until the eve of his
Case 2:20-cv-00599-JPH-DLP Document 18 Filed 11/17/20 Page 21 of 22 PageID #: 1413
scheduled execution" and argues that Mr. Hall should not benefit from this
There is no doubt that Mr. Hall faces irreparable harm if a stay is denied,
and that the issues he raises are extremely serious. Mr. Hall's delay in bringing
his claims, though, weighs heavily against granting a stay. See Lee v. Watson,
2019 WL 6718924, at *2 (7th Cir. Dec. 6, 2019) ("The grant of a stay entails
equitable as well as legal considerations. . . . [S]omeone who waits years before
seeking a writ of habeas corpus cannot, by the very act of delay, justify
postponement of the execution."). The balance of interests weighs against staying
Mr. Hall's execution.
Mr. Hall's motion for stay of execution, dkt. , is DENIED. The motion for
oral argument, dkt. , is DENIED as moot.
Case 2:20-cv-00599-JPH-DLP Document 18 Filed 11/17/20 Page 22 of 22 PageID #: 1414
Kaitlyn A. Golden
HOGAN LOVELLS US LLP
Jonathan Glen Bradshaw
DEPARTMENT OF JUSTICE
Timothy Wayne Funnell
UNITED STATES ATTORNEY'S OFFICE
James Robert Wood
UNITED STATES ATTORNEY'S OFFICE
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