Orlando Hall v. William Barr

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5340 September Term, 2020 1:20-cv-03184-TSC Filed On: November 19, 2020 Orlando Cordia Hall, Appellant v. William P. Barr, in his official capacity as U.S. Attorney General, et al., Appellees ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA BEFORE: Millett, Pillard, and Rao, Circuit Judges JUDGMENT This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. R. App. P. 34(a)(2); D.C. Cir. Rule 34(j). Upon consideration of the foregoing, the emergency motion for stay of execution, the response thereto, and the reply, it is ORDERED that the emergency motion for stay of execution be denied. It is FURTHER ORDERED AND ADJUDGED that the district court’s November 16, 2020 order be affirmed. I In July 2020, the Bureau of Prisons revised its execution protocol to provide death-sentenced inmates only 50 days' advance notice of their execution dates, instead of the 90 days' notice previously afforded by the protocol. Hall argues that shortening the notice period violates substantive due process, equal protection, and the Ex Post Facto Clause of the Constitution, U.S. Const., Art. 1, § 9, cl. 3. None of those arguments succeeds. First, the provision of 50 days' notice did not deprive Hall of substantive due process. The Federal Bureau of Prisons' execution protocol, which reduced the United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 20-5340 September Term, 2020 government's notice period from 90 to 50 days, is a non-binding procedural rule that created no substantive due process right to a particular period of notice when an execution date is set. In re Federal Bureau of Prisons' Execution Protocol Cases, 955 F.3d 106, 112 (D.C. Cir. 2020); id. at 125 (Katsas, J., concurring); id. at 144 (Rao, J., concurring); Bureau of Prisons' 2020 Execution Protocol at 4 (providing that the protocol "does not create any legally enforceable rights or obligations"). Hall has been on notice of his death sentence since it was first imposed in 1995, sustained on appeal in 1998, and certiorari review by the Supreme Court denied in 1999. See United States v. Hall, 152 F.3d 381 (5th Cir. 1998), cert. denied, 526 U.S. 1117 (1999). Nor has Hall identified any basis in precedent or otherwise "deeply rooted in this Nation's history and tradition" for concluding that a particular notice period is "implicit in the concept of ordered liberty," which is required to make out a violation of substantive due process. Washington v. Glucksberg, 521 U.S. 702, 720-721 (1997) (formatting modified). By regulation, the warden was to provide Hall with at least 20 days' notice of his execution date. 28 C.F.R. § 26.4(a). Hall does not deny that he received that required notice. Second, the provision of 50 days' notice did not deprive Hall of the equal protection of the laws. As noted, Hall received more than the …

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