DC Circuit - Purkey

USCA Case #20-5207 Document #1851927 Filed: 07/15/2020 Page 1 of 4
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 20-5207 September Term, 2019
1:19-cv-03570-TSC
Filed On: July 15, 2020
Wesley Ira Purkey,
Appellee
v.
William P. Barr, Attorney General, et al.,
Appellants
BEFORE: Rogers, Griffith, and Pillard, Circuit Judges
ORDER
Upon consideration of the emergency motion to stay or vacate preliminary

injunction barring federal executions, the opposition thereto, and the reply, it is
ORDERED that the emergency motion for a stay pending appeal of the district
court’s order enjoining plaintiff's execution be denied.
Wesley Ira Purkey is a federal prisoner whose execution is scheduled for today,
July 15, 2020. On November 26, 2019, Purkey filed a complaint alleging that his Eighth
Amendment right to be free from cruel and unusual punishments and his Fifth
Amendment right to due process would be violated unless he received a Ford hearing
to determine whether he is competent to understand why he is being executed. See
Compl., Purkey v. Barr, No. 19-cv-3570 (D.D.C. Nov. 26, 2019); see also Ford v.
Wainwright, 477 U.S. 399 (1986). In late February, the government moved to dismiss
his complaint or to transfer venue to the United States District Court for the Southern
District of Indiana, see Defs. Mot. to Dismiss, Purkey v. Barr, No. 19-cv-3570 (D.D.C.
Feb. 24, 2020), and briefing on that motion was completed at the end of March. On
June 15, 2020, the Federal Bureau of Prisons announced that Purkey would be
executed on July 15, 2020. See Notice, Purkey v. Barr, No. 19-cv-3570 (D.D.C. June
15, 2020). A week later, Purkey filed a motion for a preliminary injunction on two
grounds: (1) that he is not currently competent to be executed under the Eighth
Amendment, and (2) that the government had denied him due process in connection
with his Eighth Amendment claim by failing to conduct a competency hearing. See Pl.
Mot. for a Prelim. Inj., Purkey v. Barr, No. 19-cv-3570 (D.D.C. June 22, 2020).
Early this morning, the district court granted Purkey's motion for a preliminary
injunction. The district court first held that it had jurisdiction to consider Purkey’s claims
under 28 U.S.C. § 1331, rejecting the government’s argument that Purkey was required

____________
to bring his claims through the federal habeas statute. The district court then
determined that Purkey had shown a likelihood of success on the merits of his Fifth and
Eighth Amendment claims because he had made the “substantial threshold showing of
incompetency” required by Ford. The district court further held that Purkey would suffer
irreparable harm if he were executed before being found competent. Finally,
acknowledging the government’s “important interest in the timely enforcement of a
[death] sentence,” Bucklew v. Precythe, 139 S. Ct. 1112, 1133 (2019), the district court
concluded that the balance of equities and the public interest favored Purkey.
The government seeks a stay pending appeal of the preliminary injunction on

two grounds: (1) the district court lacks jurisdiction over Purkey's claims; and (2) Purkey
has failed to make the threshold showing of incompetency required by Ford. In
evaluating a motion for a stay pending appeal, we 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, 426 (2009). Based on
those factors, we deny the government's motion.
The government has not met its burden of showing a likelihood of success on its
jurisdictional claim. The government argues that Purkey’s challenges must have been
brought under the federal habeas statute, 28 U.S.C. § 2241, in the Southern District of
Indiana where Purkey is currently incarcerated. An inmate challenging the execution of
his death sentence must bring that challenge through the habeas statute when “a grant
of relief to the inmate would necessarily bar the execution.” Hill v. McDonough, 547
U.S. 573, 583 (2006). However, an inmate may file suit for injunctive relief outside of
the habeas statute when he “appear[s] willing to concede the existence of an
acceptable alternative” that would allow his execution to go forward. Id. at 579 (citing
Nelson v. Campbell, 541 U.S. 637, 645-46 (2004)). Purkey’s claim is analogous to a
method-of-execution claim, which the Supreme Court has held may be brought outside
of the federal habeas statute. Purkey does not seek to permanently bar his execution,
rather he simply seeks a competency hearing under Ford. If he is found competent at
such a hearing, the execution may go forward. And even if he is found incompetent,
such a finding would only impose a temporary bar on his execution. When an inmate
claims incompetence, “the only question raised is not whether, but when, his execution
may take place.” Ford, 477 U.S. at 425 (Powell, J., concurring); see also Panetti v.
Quarterman, 551 U.S. 930, 949 (2007) (explaining that Justice Powell’s concurring
opinion is controlling under the Marks rule). Because granting the relief that Purkey
seeks will not alter his sentence or permanently enjoin his execution, we cannot
conclude that the government has met its burden of showing a likelihood of success on
its jurisdictional claim.
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In this posture, we also cannot conclude that the government has met its high
burden of a “strong showing” of likelihood of success on the merits of Purkey’s Fifth and
Eighth Amendment claims. Since Ford, the Supreme Court has held that “the Eighth
Amendment’s ban on cruel and unusual punishments precludes executing a prisoner
who has ‘lost his sanity’ after sentencing.” Madison v. Alabama, 139 S. Ct. 718, 722
(2019) (quoting Ford, 477 U.S. at 406)). To overcome the presumption of competency
and be entitled to a hearing under Ford, Purkey must make a “substantial threshold
showing of insanity.” Panetti, 551 U.S. at 949 (internal quotation marks omitted).
Specifically, Purkey must make a substantial showing that his “mental illness prevents
him from rationally understanding why the State seeks to [execute him].” Madison, 139
S. Ct. at 722 (internal quotation marks and brackets omitted). “[T]he issue is whether a
prisoner's concept of reality is so impaired that he cannot grasp the execution's
meaning and purpose or the link between his crime and its punishment.” Id. at 723
(internal quotation marks and brackets omitted). The Court has acknowledged that both
psychosis and dementia may lead to such impairment. See id. at 729 (“[D]ementia . . .
can cause such disorientation and cognitive decline as to prevent a person from
sustaining a rational understanding of why the State wants to execute him.”); id. at 723
(noting that both Ford and Panetti “suffered from ‘gross delusions’ stemming from
‘extreme psychosis’” (quoting Panetti, 551 U.S. at 936, 960)).
The district court concluded that Purkey had made that showing based on a
“series of reports and declarations” that described Purkey’s “history of mental illness,
including delusional and paranoid thinking” and recent onset of dementia. Order at 10,
Purkey v. Barr, No. 19-cv-3570 (D.D.C. July 15, 2020); see, e.g., Mot. for a Prelim. Inj.,
Ex. 4 (Hyde Decl.), 14 (“[Purkey’s] intellectual deficits, paranoia, delusional beliefs, and
the course of his progressive deterioration are consistent with the diagnosis of
dementia.”). In particular, the district court relied on an expert report from Dr. Bhushan
Agharkar, who concluded that “Mr. Purkey lacked a rational understanding of the basis
for his execution.” Compl., Ex. 1, at 12. Dr. Agharkar reported that Purkey believed the
“‘real reason’ he was going to be executed” was because the government was
retaliating against him for “filing lawsuits in other people’s cases” and that Purkey had a
“fixed belief that he [was] going to be executed in retaliation for his legal work, to
prevent him from being a hassle for the government.” Id. at 11-12. Dr. Agharkar
explained that “[w]hile Mr. Purkey can recite the fact that his execution is for the murder
of Jennifer Long, he lacks rational understanding of that fact. This is an example of
parroting, rather than having a rational understanding.” Id. at 12.
The Supreme Court has concluded that an inmate made a threshold showing of
incompetency in a similar setting. See Panetti, 551 U.S. at 954-55. There, an expert
witness explained that “although petitioner claims to understand ‘that the state is saying
that it wishes to execute him for his murders,’ he believes in earnest that the stated
Page 3

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reason is a ‘sham’ and the State in truth wants to execute him ‘to stop him from
preaching’” about a spiritual war. Id. (brackets omitted).
The Government challenges Dr. Agharkar’s memorandum because it “conflates

Purkey’s understanding of the reason for his execution, which would be constitutionally
disqualifying under Ford, with Purkey’s understanding of the reason for scheduling his
execution date, which is not.” Emergency Mot. to Stay or Vacate Prelim. Inj. at 12,
Purkey v. Barr, No. 20-5207 (D.C. Cir. July 15, 2020). But Dr. Agharkar's report
expressly states that Purkey believes that retaliation is the “reason for his execution” –
not just the reason for its timing. Compl., Ex. 1, at 11. The Government also argues that
the remaining evidence of Purkey’s history of mental illness does not indicate that he is
rationally incapable of understanding the reason for his sentence, Emergency Mot. to
Stay or Vacate Prelim. Inj. at 14-16, but that evidence – even if insufficient standing
alone – could tend to corroborate the opinion in Dr. Agharkar’s memorandum.
Given the similarity to Panetti, the deference we owe to the district court’s factual
findings, and the procedural posture that requires the Government to make a “strong
showing” to obtain a stay, we cannot conclude that the Government – at this stage –
has demonstrated the requisite likelihood of success.
We are cognizant of the Supreme Court’s repeated instruction that “‘[l]ast-minute

stays’ like that issued this morning ‘should be the extreme exception, not the norm.’”
Barr v. Lee, 2020 WL 3964985 (U.S. July 14, 2020) (quoting Bucklew, 139 S. Ct. at
1134). Recognizing the government’s interest in the timely execution of this sentence,
the parties are ordered to comply with the expedited briefing schedule regarding the
motion to vacate the preliminary injunction, set forth by separate order. Further, given
the Government’s interest in timely execution of the sentence, and given the delay
caused by the district court’s eleventh-hour order in this case, the district court should
continue to expeditiously proceed to adjudicate Purkey’s Ford claim, even as this Court
considers whether to vacate the preliminary injunction. This court cannot punish Purkey
as a result of that delay by denying him one last opportunity to be heard on all his
claims.
Per Curiam
FOR THE COURT:

Mark J. Langer, Clerk
BY: /s/
Scott H. Atchue
Deputy Clerk
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USCA Case #20-5207 Document #1851927 Filed: 07/15/2020 Page 1 of 4

United States Court of Appeals

William P. Barr, Attorney General, et al.,

BEFORE: Rogers, Griffith, and Pillard, Circuit Judges

Upon consideration of the emergency motion to stay or vacate preliminary

United States Court of Appeals

The government seeks a stay pending appeal of the preliminary injunction on

United States Court of Appeals

United States Court of Appeals

The Government challenges Dr. Agharkar’s memorandum because it “conflates

We are cognizant of the Supreme Court’s repeated instruction that “‘[l]ast-minute

FOR THE COURT:

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