IN THE SUPREME COURT OF THE UNITED STATES GEORGE LOMBARDI, et al., Applicant, v. HERBERT SMULLS, Respondent.

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No.

13A___

APPLICATION FOR ORDER TO VACATE STAY OF EXECUTION On January 28, 2014, a panel of the court of appeals entered an order granting a stay of execution while this Court makes its ultimate decision on Smullss currently pending petition for a writ of certiorari in Supreme Court Docket Number 13-8432 (13A783), David S. Zink, et al., v. George A. Lombardi, et al. (Motion Exhibit A, p. 2). In the afternoon of January 29, 2014, this Court denied the petition for writ of certiorari and motion for stay in Smulls v. Missouri, No. 13-8432 (13A783). The Court also denied the application for stay in Smulls v. Lombardi, 13A784. The Court took no action on the petition for writ of certiorari. The Court denied the request for stay of execution in 13A784. For the same reasons, the Court should vacate the stay of execution from the court of appeals. The Courts January 29, 2014 order properly applied the standard for a stay of execution pending certiorari review in Barefoot v. Estelle, 463 U.S. 880, 895 (1983). The Court properly determined that there is not a

reasonable probability that four members of the Court were considering the underlying issue sufficiently meritorious for the grant of certiorari and there is not a significant possibility of a reversal of the lower courts decision. Id. at 895. Under these circumstances, the court of appeals abused its discretion by disagreeing with this Court and entering a stay of execution. Due to the abuse of discretion, the Court should vacate the stay. See Bowersox v. Williams, 517 U.S. 345 (1996). To the extent the court of appeals granted a stay based on matters before it instead of this Court, that stay is unreasoned. In that situation, this Court should look to the orders of the district court denying a stay (Motion Exhibit B, C). Those orders are well-grounded in the law and should receive deference. See Bowersox v. Williams, 517 U.S. at 346. The Court should vacate the January 28, 2014 stay of execution. The Court should direct that no further stays of execution should be entered without permission of this Court. Gomez v. United States District Court, 503 U.S. 653, 654 (1992).

Respectfully submitted, CHRIS KOSTER Attorney General \s\Stephen D. Hawke STEPHEN D. HAWKE Assistant Attorney General Missouri Bar No. 35242 P. O. Box 899 Jefferson City, MO 65102 (573) 751-3321 (573) 751-3825 fax stephen.hawke@ago.mo.gov Attorneys for Respondent CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was electronically filed by using the CM/ECF system. I further certify that the participants in the case are CM/ECF users, this 29 day of January, 2014, to: Counsel for Applicant \s\Stephen D. Hawke