1

IN THE SUPREME COURT OF THE

UNITED STATES

IN RE: John Middleton )
) No. 14-5247
) No. 14A55
)


SUGGESTIONS IN OPPOSITION TO PETITION FOR WRIT OF
HABEAS CORPUS AND APPLICATION FOR STAY OF EXECUTION

In Felker v. Turpin, 518 U.S. 651 (1996), the Court noted the ability of a petitioner
to file an original petition in this Court. While the Court has jurisdiction to issue a writ,
an offenders seeking a writ of habeas corpus from this Court is extraordinary. Supreme
Court Rule 20.4. Middleton does not make the high showing for the Courts exercise of
original jurisdiction to issue a writ of habeas corpus. Ferguson does not show that
adequate relief cannot be obtained in any other form or from any other court. Id.
Middleton has litigated this Ford claim repeatedly. The court of appeals rejected
it because it is unexhausted. No. 14-2667 (July 15, 2014). Middleton has not exhausted
state remedies since yesterday. Today, the court of appeals [is considering] [has rejected]
the claim as meritless. No. 14-2677 (July 16, 2014). The fact that Middletons Ford
claim is meritless does not warrant his filing an original petition in this Court. Supreme
Court Rule 20.4.
And, in any event the Ford claim does not warrant habeas relief or a stay of
execution.
I. Case Summary
2

Nineteen years ago, on June 10, 1995, police in Harrison County, Missouri
arrested several individuals on methamphetamine related charges. Middleton v. Roper,
498 F.3d 812, 813 (8th Cir. 2007). John Middleton, a methamphetamine dealer, was not
arrested, but after the others were arrested he stated that the snitches around here are
going to start going down and that he had a hit list that included Alfred Pinegar, who
was another methamphetamine dealer and an associate of Middletons. Id. at 813-814.
Middleton and an accomplice took Pinegar to a field where Middleton shot Pinegar twice
in the back, then killed him with a shot to the face and dumped Pinegars body over a
fence. Id. Middleton later said he had killed Pinegar so that Pinegar would not snitch
on him. Id. Middleton was convicted of the murder of Pinegar and sentenced to death.
Id. at 814. He is also under sentences of death for two other murders, those of Randy
Hamilton and Hamiltons girlfriend, Stacy Hodge, whom Middleton also killed as part of
his plan to eliminate informants. Id.
Less than 48 hours before his scheduled execution, Middleton challenged his
competence to be executed and asked the district court to stay his execution. Middleton
presented for the first time an experts preliminary opinion that Middleton is not
competent. There is no plausible reason why Middleton chose to delay until less than 48
hours before his execution to bring this claim except to create an artificial time shortage
so that he could argue for a stay. Additionally, Middleton deliberately chose not to
exhaust his available state court remedy of a habeas corpus action in the Missouri
Supreme Court, and his last minute report conflicts with the experts earlier opinion
despite lack of any further examination of the inmate. Nevertheless the district court
3

entered a stay of execution. The Court of Appeals vacated the district court stay in
Middleton v. Roper, 14-2667 (8
th
Cir. July 15, 2015).
Less than two hours before the scheduled execution the district court entered
another stay of execution on the same underlying competence to be executed claim. Late
morning of July 16, 2014, the Court of Appeals vacated the stay of execution because
Middleton had not exhausted state remedies. Middleton has been on notice since the
Missouri Supreme Court ordered him last January to show cause why his execution date
should not be set that his execution was imminent and at that time he responded by
asserting a Ford/Panetti claim. There is no good reason that he did not raise his claims.
II. The Warden attaches the following exhibits to assist the Court.
The Warden attaches three packets of documents as exhibits to this pleading.
Wardens Exhibit 1 contains pleadings and orders establishing Middletons failure to
exhaust state remedies. That packet includes Middletons stay application in the Missouri
Supreme Court. He did not ask for state court habeas relief, but asked for a stay based
only on a coram nobis writ in the trial court; even though the Missouri Supreme Court
explicitly abolished that writ over a quarter century ago, and Missouri Supreme Court
Rules require inmates challenging death sentences to file habeas actions in the Missouri
Supreme Court. The packet also includes Middletons coram nobis petition, and the order
denying it because the writ does not exist. The packet includes the docket sheet from
SC80941, a 2008 Supreme Court application for stay of execution on another one of his
death sentences based on alleged incompetence. Finally, the packet contains the writ
4

summary and order of denial from Joseph Franklins Missouri Supreme Court habeas
challenge to his competence to be executed in November 2013.
Wardens Exhibit 2 contains the Wardens response to Middletons most recent
stay application in the Missouri Supreme Court based on alleged incompetence. The
Warden includes in Wardens Exhibit 2 (Exhibit 1 in the Missouri Supreme Court), a
memorandum from Dr. Markway opining that Middleton does not suffer from an active
mental disease or defect that calls into question his competence to understand the nature
and quality of the legal proceedings against him, that there are no indications of
psychosis or mental disability, that Middleton has average intelligence, and that his
primary mental health problem is anxiety disorder that has responded well to treatment.
The Warden also includes in Wardens Exhibit 2 (Exhibit 2 in the Missouri Supreme
Court) documentation of recent mental health encounters with Middleton. The State
includes in Wardens Exhibit 2 (Exhibit 3 in the State Supreme Court) reports of recent
phone calls in which Middleton discusses his impending execution. Middleton jokes
about pretending to be mentally deficient to avoid execution. He states, I was hoping
they would [set an execution date] because I knew that that would place my case out on
Front Street and theyd have to look at it. He states his attorneys have brought up several
issues that he believes will prevent the execution, including having the entomologist
change his opinion on the date of death.
The Wardens Exhibit 3 contains the Missouri Supreme Courts January 29, 2014
order to Middleton to show cause why an execution date should not be set (the district
court stay order refers to this order as being issued on February 28) and Middletons
5

February 11, 2014 response. In that response, Middleton claims an execution date should
not be set because he is not competent to be executed under the Ford/Panetti standard.
Therefore, Middleton has known since January 29, 2014, that his execution was
imminent, and he has clearly demonstrated as far back as 2008, and certainly by February
of this year, that intended to raise claims based on competence to be executed.
Wardens Exhibit 4 and 5 contain phone calls in which Middleton discussed
strategies to avoid execution and joked about feigning a mental defect to avoid execution.
III. Middleton does not meet the Hill v. McDonough standard for a stay.
In Hill v. McDonough, 547 U.S. 573 (2006), this Court held that a pending lawsuit
does not entitle a condemned inmate to a stay of execution as a matter of course, and that
the State and crime victims have an important interest in the timely implementation of a
death sentence. Id. at 583-84. The Court held applicants seeking a stay must meet all the
elements of a stay, including showing a significant possibility of success on the merits.
Id. at 584. A court considering a stay must apply a strong presumption against granting a
stay where the claim could have brought soon enough to allow consideration of the merits
without a stay. The Court cited Mazvrek v. Armstrong, 520 U.S. 968, 972 (1997) (per
curiam), for the proposition that a preliminary injunction [is] not granted unless the
movant, by a clear showing, carries the burden of persuasion. Hill, 547 U.S. at 584.
Middleton does not carry that burden.
IV. Middletons delay creates an independent and adequate reason to deny a
stay.
Middletons extreme delay makes it unjust to grant a stay. Middleton moved the
6

Missouri Supreme Court to stay an earlier execution date based on a competence to be
executed claim under Ford v. Wainright, 477 U.S. 299 (1986) on July 17, 2008
(Wardens Exhibit 1). The Missouri Supreme Court denied the motion without prejudice
when it stayed Middletons execution for another reason on July 21, 2008 (Id). The
Missouri Supreme Court removed any impediment to Middletons execution in 2009
when it decided Middleton v. Missouri Department of Corrections, 278 S.W.3d 193 (Mo.
2009) (rejecting claim challenging Missouri execution procedures under the Missouri
Administrative Procedure Act).
Last January, the Missouri Supreme Court issued an order for Middleton to show
cause why his execution date should not be set, and he responded by claiming he is not
competent under the Ford/Panetti standard (Wardens Exhibit 3). Middleton has known
for many months that he is part of a small group of persons who have exhausted the
ordinary course of review of their death sentences and are liable to have execution dates
set imminently. He also has known that Missouri has scheduled an execution every
month since November 2013. In fact, Middleton anticipated the imminence of his
execution to the degree that he twice sued the Department of Corrections, challenging the
protocol to be used in his execution. Ringo v. Lombardi, Mo. 09-4095-CV-C-NKL
(W.D. Mo.); Zink v. Lombardi, No. 12-4029-CV-C-BP (W.D. Mo.). But, to this day, less
than 24 hours before his scheduled execution, Middleton has not filed a habeas corpus
action in the Missouri Supreme Court challenging his competence to be executed under
the standard in Ford and Panetti v. Quarterman, 551 U.S. 930 (2007).
Instead, Middleton raised his competence to be executed claim in the Circuit Court
7

of Adair County through a writ of coram nobis (Wardens Exhibit 1). Middleton knows
that Missouri Supreme Court Rule 76.04(d) abolished that writ more than a quarter
century ago. But he still asserted the right to proceed under that nonexistent form of
action in the trial court rather than proceed through a writ of habeas corpus in the
Missouri Supreme Court. The Circuit Court of Adair County dismissed the coram nobis
case citing an appellate case that pointed out the futility of the path Middleton had chosen
to present his claim (Wardens Exhibit 1).
Middleton unnecessarily presented the district court with an unexhausted and
unsupported Ford claim less than 48 hours before his execution. There is no adequate
reason he could not have filed his Ford claim in a habeas action in the Missouri Supreme
Court weeks ago and, if necessary, presented the district court with an exhausted Ford
claim, long before today. But he chose not to. The district court granted a stay despite the
fact that Middleton presented his claim and expert opinion for the first time less than 48
hours before his scheduled execution, despite knowing his claim and the imminence of
his execution for months. He had six weeks from the date his execution was actually set
on May 20, and nearly half a year since the Missouri Supreme Courts show cause order
put him on notice in January that his execution was imminent. But he never filed a habeas
action challenging his competence in the Missouri Supreme Court, and did so in the
district court only hours before his execution.
V. Middleton has not exhausted his state law remedies.
A district court may not grant a petition for the writ of habeas corpus unless the
petitioner has exhausted available state court remedies if such remedies exist. 28 U.S.C.
8

2254(b)(1). But a district court may deny the claim on the merits despite the petitioners
failure to exhaust available state court remedies. 28 U.S.C. 2254(b)(2). Middleton has
placed himself in a position in which the district court may deny his claim on the merits,
but may not grant relief. Middletons claim as it now exists has no significant possibility
of success on the merits.
Missouri Supreme Court Rule 91 habeas proceedings are an opportunity to present
argument and evidence, including psychiatric evidence. See State ex rel. Amrine v. Roper,
102 S.W.3d 541 (Mo. 2002). The Missouri Supreme Court Rules contemplate the
Missouri Supreme Court appointing a special master to hear evidence when appropriate.
Missouri Supreme Court Rule 84.24(h). But Middleton deliberately refused to file an
action under Missouri Supreme Court Rule 91. He did this even though Joseph Franklin
challenged his competence to be executed in a Rule 91 action a few months ago
(Wardens Exhibit 1). Middletons real reasoning is transparent. His expert neither
opined that Middleton is incompetent, nor opined that Middleton has made the required
threshold showing of incompetence for his claim to receive further scrutiny in his
Missouri Supreme Court stay application. Middletons hope was not to have the claim
reviewed, but to receive a stay that could delay his execution for years, as did the 2008
stay based on a claim that ultimately proved to have no merit but delayed his execution
for approximately six more years (Wardens Exhibit 1, Docket Sheet SC80941)
(execution stayed for later rejected Administrative Procedure Act claim). Middletons
expert gave his preliminary opinion of incompetence for the first time just hours before
the execution, and the opinion varied from what he opined in the Missouri Supreme
9

Court stay application. The claim has no significant possibility of success on the merits
because it is unexhausted.
VI. The underlying claim has no merit.
Middleton claimed the district court should grant relief because he alleged he is
not competent to be executed under the Eighth Amendment standard the United States
Supreme Court set out in Ford and Panetti. He alleged Missouri procedures are
inadequate to allow him to litigate the claim. Panetti holds that a State may not execute
an inmate if the inmate does not have a rational understanding that he is to be executed
and a rational understanding of the reason for the execution. Panetti, 551 U.S. at 951-60.
Panetti also holds that if an inmate under sentence of death makes a substantial threshold
showing of insanity the State must provide him with basic due process including an
opportunity to submit evidence and argument from counsel and the right to present expert
psychiatric evidence from an expert whose opinion may differ from the States expert. Id.
at 49-50.
Middleton did not allege in his stay motion to the Missouri Supreme Court that he
had made the showing required under Panetti to entitle him to further review of his claim.
Instead, he alleged he will do so at some future time, and that his expert had identified a
potential psychotic delusional disorder that he might be able to diagnose with further
examinations and observations (Wardens Exhibit 1 Missouri Supreme Court Stay
Motion at 34-37). Middleton both failed to make the showing required under Panetti to
establish an entitlement to further review in state court, and declined to ask for such
review, apparently because knowing his claim was extremely weak, he feared the
10

Missouri Supreme Court would reject the claim on the merits, and he could not show that
decision was unreasonable under 28 U.S.C.2254(d).
Middleton, less than 48 hours before the execution, presented the district court
with an opinion in which Dr. Logan states his preliminary opinion that Middleton is not
competent to be executed (Document 18-1). The new opinion does not change the
analysis. Dr. Logan does not list anything new that he reviewed before writing his new
opinion (Document 18-1). He does not diagnosis a mental disease or defect in Mr.
Middleton by the Diagnostic Manual. He declares Middleton has a delusional disorder.
But the delusion described his optimism that he will not be executed and his perception
of a conspiracy, that is consistent with his guilt phase defense, Missouri Supreme Court
habeas action and his application in this Court to file a second habeas petition. Dr. Logan
does not compare Middletons thoughts with reality before declaring Middleton
delusional. Middleton did not present that opinion to the Missouri Supreme Court, even
in his stay application, and he deliberately did not file the Missouri Supreme Court for
relief on the underlying claim through habeas corpus, instead linking his stay application
to a futile coram nobis action in the trial court. He deliberately cut the Missouri courts
out of the review of his challenging his competence.
The record demonstrates Middleton does not have a significant likelihood of
success on the merits of his claim. Dr. Markway recently found Middleton does not
suffer from a mental disease or defect, and Middletons own phone calls indicate the
reason he is not overly upset about his execution date is that he believes his lawyers will
find a way to stay the execution (Wardens Exhibit 2). Middletons scheduled 2008
11

execution has been delayed for six years based on a claim that was found to be without
merit (Wardens Exhibit 1). Middletons own words belie his last minute claims. He
recently coherently discussed strategies to avoid execution and joked about feigning a
mental disability in order to avoid execution (Wardens Exhibit 2, 4, and 5). In
Middletons view he can never be executed so long as he alleges something immediately
before each scheduled execution date that requires review. But that is not the law under
Hill. Further, Dr. Logans report is implausible in that it surfaced only hours before the
execution and is not consistent with the presentation of his views to the Missouri
Supreme Court. Additionally, Middletons alleged delusion that he is innocent and the
victim of a conspiracy is essentially the claim he presented to this Court in his motion for
leave to file an amended petition. And his alleged delusion that he will not be executed is
consistent with his views expressed in his phone calls that his attorneys will find a way to
stay his execution as they did in 2008 delaying the case until now based on a claim that
was ultimately rejected as without merit.
VII. Conclusion.
This Court should deny the petition for writ of habeas corpus and deny the stay of
execution. The time for enforcement of Missouris criminal judgment against John
Middleton is long overdue. The Court should further order that any further stay orders
must receive the advanced approval of this Court.
Respectfully submitted,
CHRIS KOSTER
Attorney General

12

\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 Compliance
I hereby certify that a true and correct
copy of this notification was sent via
electronic mail on this 16th day of July,
2014, to counsel for Petitioner John C.
Middleton.

\s\ Stephen D. Hawke
Stephen D. Hawke
Assistant Attorney General