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Petitioner, )
v. ) Case No. 4:03-CV-08002-BCW
Respondent. )

Petitioner, Earl Ringo J r., by and through his undersigned counsel, hereby
petitions this Court under section 2254 of Title 28 of the United States Code based on
constitutional violations that have just recently become ripe for habeas review and the
information in support of which was not previously available, due to recent actions by the
Department of Corrections, recent information as to those actions and the setting of Mr.
Ringos execution date. See Stewart v. Martinez-Villareal, 523 U.S. 637, 644-45 (1998).
Petitioner is a prisoner at Potosi Correctional Center in Mineral Pointe, Missouri,
who is currently scheduled to be executed by the State of Missouri on September 10,
2014. The State of Missouri recently disclosed to National Public Radio that in recent
executions it has begun the executions prior to the legally scheduled date of execution
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and administered midazolam, a drug it had sworn it would not administer, using a method
likely to render the inmate incompetentand potentially killing the inmateprior to the
legally scheduled date of execution. The disclosures establish that critical state actors
have perjured themselves, including the heads of the Department of Corrections and the
Department of Adult Institutions, and that lawyers for these entities have submitted
highly misleading pleadings and false claims in various courts about Missouris
administration of executions.
The states actions present a strong likelihood that Mr. Ringos constitutional
rights will be violated next week when the state undertakes steps to end his life.
Initiating executions prior to the legally scheduled date, contrary to Missouri law, is
excess of the Department of Corrections legal mandate and violates Mr. Ringos due
process rights. See Tennessee v. Garner, 471 U.S. 1 (1985); Rochin v. California, 342
U.S. 165 (1952). Because of the manner in which midazolam is being administered, the
Department of Corrections actions also risk killing the inmate prior to the date of the
execution. The Departments actions shock the conscience, and a hearing is required to
determine whether the prison intends to continue its pattern of unconstitutional
A hearing is also required to determine whether the high doses of midazolam that
the prison is administering will render Mr. Ringo unable to communicate with his
attorneys in the time leading up to the execution and unaware of the reason he is being
executed. See Panetti v. Quarterman, 551 U.S. 931, 957 (2007) (quoting Ford v.
Wainwright, 477 U.S. 399, 422 (1986) (Powell, J . concurring)). If either is the case, Mr.
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Ringos execution will run afoul of the minimum levels of due process required in
undertaking and execution and violates the Eighth Amendment.
Contrary to their sworn testimony, Missouri has used a variety of drugs to execute
its inmates. It is not a single-drug protocol state. These disclosures bring new relevance
to the series of botched executions in Ohio, Oklahoma, and Arizona, executions which
the state has previously, either disingenuously or erroneously, argued are irrelevant to
Missouris administration of its protocol. The states malfeasance, together with the
troubling executions elsewhere, establishes substantial risk of serious harm and
prevents the state from claiming to be subjectively blameless for purposes of the Eighth
Amendment in their forthcoming execution of Mr. Ringo. Baze v. Rees, 553 U.S. 35,
50, 52 (2008) (quoting Farmer v. Brennan, 511 U.S. 825, 846 n.9 (1994)).
Further, state officials actions within the context of discovery requests and court
pleadings in deceiving Mr. Ringo and his co-plaintiffs undermines the fundamental
function of the court system and deprives him of any meaningful access to the court
system. Wolff v. McDonnell, 418 U.S. 539, 579 (1974)
All of these claims establish the need for discovery and a hearing to develop and
fully and fairly present these claims.
This Court should stay Mr. Ringos September 10 execution and provide him with
a meaningful opportunity to present evidence as to these grave constitutional claims.
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AND 14
Missouri state law limits when and how an execution can take place. The
Department of Corrections has consistently violated state law by initiating executions
before the proscribed date, by administering potentially lethal doses of drugs it has sworn
it would not use, and by lying to the courts and the public about Missouris execution
procedures. Absent this Courts intervention, Mr. Ringo will likely face similarly lawless
acts at the hands of the Department of Corrections.
Missouri law requires the state to set any execution dates in one of two ways.
First, the Department of Corrections can request that the Missouri Supreme Court set a
date for an execution. In that situation, if no legal reasons exist against the execution of
sentence, the court is to issue a warrant . . . for the execution of the prisoner at the time
therein specified. Mo. Rev. Stat. 546.710. Second, the Missouri Supreme Court can,
on its own motion, set an execution date. Mo. R. Crim P. 30.30(a). Under either process,
the Missouri Supreme Court sets a specified date, with the warrant for execution only
authorizing the execution to occur within a specified twenty-four hour period.
The recent disclosures establish that the Department of Corrections consistently
carries out executions in a manner contrary to the established process.
They establish
that the execution of the prisoner actually begins prior to the warrant taking effect. One
of the disclosures is the chemical logs of the recent executions. The log from Mr.

Earlier this week, undersigned counsel received a copy of the disclosures from the reporter
who obtained them from the state.
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Michael Taylors execution, for example, establishes that the first administration of drugs
was on 11:31 p.m. the day before his execution was authorized to take place. Ex. 1; Ex.
2. The log from Mr. J effrey Fergusons execution, legally scheduled to take place on
March 26, 2014, indicate that the drugs were administered starting on March 25,
2014. Ex. 3 (showing a date of March 25 for the signature of three of the four three
execution team members, including one medical personnel). The log from Mr. William
Roussans execution, legally scheduled for April 23, 2014, indicates that the Department
of Corrections administered him drugs on both April 22 and 23, 2014. Ex. 4. The
Department of Corrections records demonstrate that it has repeatedly begun executions
before the legally scheduled date.
These timeframes are different than those in a sworn affidavit of Dave Dormire,
the head of the Missouri Department of Adult Institutions. On J uly 28, 2014, Mr.
Dormire signed a sworn affidavit listing the time the order to proceed was given in the
executions of Messrs. J oseph Franklin, Allen Nicklasson, Herbert Smulls, Michael
Taylor, J effrey Ferguson, William Rousan, J ohn Winfield, and J ohn Middleton. Ex. 5.
He claimed to have personal knowledge of the Departments execution protocol and
related procedures. Id. Each of the times listed is on the date the execution was legally
scheduled to proceed. Id. Thus, Mr. Dormires affidavit, indicating that the executions
took place on the legally prescribed date, is contradicted by the Department of
Corrections files.
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The recent disclosures also establish that the Department of Corrections is
administering of drugs other than pentobarbital as part of the executions.
Midazolam is
marketed as Versed. See National Institutes of Health, Midazolam Injection (Nov. 1,
2010) available at http://www.nlm.nih.gov/medlineplus/druginfo/meds/a609014.html.
The recent disclosures refer to it as such. Midazolam has been administered in every
single execution that has taken place under Missouris current one-drug protocol. Exs.
1, 3, 4, 6, 7, 8, 9, 10, 11 (Chemical Logs for J oseph Franklin, Alan Nicklasson, Herbert
Smulls, Michael Taylor, J effrey Ferguson, William Rousan, J ohn Winfield, J ohn
Middleton, and Michael Worthington). The Department of Corrections administered two
milligrams of midazolam to Messrs. Franklin, Nicklasson, Smulls, Taylor, and Ferguson.
Exs. 1, 3, 6, 7, 8. They administered six milligrams to Messrs. Middleton and
Worthington. Exs. 10, 11.
The midazolam appears to be administered intravenously. That is, the disclosures
from the Department of Corrections indicate that the only type of midazolam they have
available is a type that must be administered intravenously. Ex. 12. Establishing
intravenous access is part of Missouris execution protocol. Ex. 13. Thus, administering
the midazolam is part of the execution.
Dr. Karen Sibert, an anesthesiologist, noted that six milligrams of intravenous
midazolam could be enough to cause the inmates airway to be obstructed, creating a risk
of death from the administration of the midazolam. Ex.14. The states prior

The Department of Corrections and Attorney Generals Office declined to comment for the
story on the recent disclosures. Ex. 14.
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representations about midazolam suggested midazolam was being offered merely as a
sedative, to be voluntarily taken by the prisoner. Ex. 15 at 89; Ex. 16 at 54. The
Department of Corrections has uniformly included midazolam in the ten most recent
executions. In at least two, they administered a potentially lethal dose.
In each of the ten most recent executions, Missouri has established intravenous
access behind a curtain, outside the view of the media and witnesses from the public. Ex.
14. They have not pulled back the curtains until after the midazolam has already been
administered. Thus, administration of a potentially fatal chemical takes place outside the
view of the public.
The Department of Corrections chemical logs also contradict the director of the
departments sworn testimony. In a J anuary 2014 deposition, George Lombardi was
asked about Missouris potential use of midazolam:
Q. Why will there be no use of [midazolam] in an
A. Because we have no intention to do that. We have
Pentobarbital that we use.
Q. Well, I -- the subsection B says that if the Department
Director -- which is you, correct?
A. Right.
Q. Determines that a sufficient quantity of Pentobarbital
is not available, then Hydromorphone or Midazolam will be
used. Are you saying that --
A. And Im testifying right now to tell you that will not be
the case. We will not use those drugs.
Ex. 16. This testimony is directly contradicted by the Department of Corrections files.
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Whether the Department of Corrections used midazolam in its executions was
discussed in litigation subsequent to botched executions in Arizona, Ohio, and
Oklahoma. In pleadings before the Eighth Circuit, the Attorney Generals Office has
distinguished the problems in Arizona, Ohio, and Oklahoma from Missouris protocol
based on those states use of chemicals other than pentobarbital. See Ex. 17 (Alleged
difficulties in executions in Arizona, Oklahoma, and Ohio using different execution
chemicals, different protocols, and different personnel than Missouri uses do not support
a stay of execution in Missouri.). The recent disclosures demonstrate that, like Arizona,
Ohio, and Oklahoma, Missouri uses midazolam. See Exs. 18, 19 (Proof of AZ, OK, and
OH). The Attorney Generals Office has made similar assertions before this Court and
before the United States Supreme Court, repeatedly misleading courts about whether
Missouri uses different chemicals than the states with demonstrated problems with their
executions. Ex. 20. Those assertions constitute material misrepresentations.

The state has misled the public in the same ways that it has misled the courts. On
May 30, 2014, the Associated Press reported that Attorney General Chris Koster use of
the single drug pentobarbital has proven successful. None of the six inmates with
pentobarbital have shown any outward signs of distress. Ex. 21. In August, after J oseph
Wood took more than ninety minutes to die in Arizona, the Attorney Generals Office

The timeframes referred to by the state were also inaccurate. Ex. 17 (Respondents
Exhibit 2 to this pleading contains an affidavit from the Director of Adult Institutions listing
the time from the order to begin the execution until the pronouncement of the death after
each execution. The elapsed time has been less than fifteen minutes in each case.). As
discussed supra, the timeline for at least several executions began before the date of
execution, extending the length of the execution by half an hour.
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said that there was no need to suspend executions because, unlike Arizona, Missouri
uses pentobarbital, not the two-chemical combination used in Arizona. Ex. 22. In light
of the recent disclosures, it is now clear that these statements were, at best, misleading,
and at worst, outright lies
This pattern of initiating executions prior to the execution date and using
undisclosed chemicals, and lying about their use in sworn statements and in court filings
aimed at discovering the truth, shocks the conscience. Repeating it here will violate Mr.
Ringos federal rights. See U.S. Const. amends. VIII, XIV. Due process has long barred
states from conduct that shocks the conscience or offends a sense of justice.
Rochin v. California, 342 U.S. 165, 172-73 (1952) (quoting Brown v. Mississippi, 297
U.S. 278, 285-86 (1936)). Likewise, states are not permitted to use force beyond that
permitted by law. See Tennessee v. Garner, 471 U.S. 1 (1985). Together and separately,
these principles prohibit precisely what Missouri has done in the past ten executions.
Due process prohibits states from engaging in conduct that shocks the conscience
or offends a sense of justice. See Rochin v. California, 342 U.S. 165, 172 (1952); Puc-
Ruiz v. Holder, 629 F.3d 771, 778 (2010) (egregious brutality in course of obtaining
evidence requires suppression). The threshold question in a due process challenge to
abusive conduct by a state actor is whether the behavior of the governmental officer is so
egregious, so outrageous, that it may be fairly said to shock the contemporary

The Department of Corrections has also used other drugs besides pentobarbital and midazolam during executions.
In the executions of Messrs. J effery Ferguson and Michael Worthington, the Department of Corrections
administered five milligrams of valium. Exs. 3,11. In the executions of William Rousan and Michael Worthington,
they administered, respectively, two and ten milligrams of lidocaine. Exs. 4, 11. The Department of Corrections
has not said whether the administration of any of these drugs was voluntary or how they were administered. Ex. 14.
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conscience. Rogers v. City of Little Rock, Ark., 152 F.3d 790, 797 (8th Cir. 1998)
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998)). In every case
in which a plaintiff challenges the actions of an executive official under the substantive
component of the Due Process Clause, he must demonstrate both that the officials
conduct was conscience-shocking, and that the official violated one or more fundamental
rights that are deeply rooted in this nations history and tradition, and implicit in the
concept of ordered liberty, such that neither liberty nor justice would exist if they were
sacrificed. Moran v. Clarke, 296 F.3d 638, 651 (8th Cir. 2002) (Bye, J ., concurring)
(quoting Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997)). Thus, substantive due
process standard reflect both contemporary mores and our nations history.
Nevertheless, the concept of due process of law is not final and fixed. Rochin,
342 U.S. at 171. Rather, it requires an evaluation based on a disinterested inquiry
pursued in the spirit of science, on a balanced order of facts exactly and fairly stated, on
the detached consideration of conflicting claims . . . on a judgment not ad hoc and
episodic but duly mindful of reconciling the needs both of continuity and of change in a
progressive society. Id. at 172.
In 1952, [i]llegally breaking into the house of the [suspect], the struggle to open
his mouth and remove what was there, the forcible extraction of his stomachs contents
was bound to offend even hardened sensibilities and violate due process. Id. Such a
course of conduct was comparable to the rack and the screw. Id. More recently, our
Circuit Court has made it clear that a violation of ones intimate bodily integrity by the
rape at the hands of a state official is conscience shocking. Rogers, 152 F.3d at 797.
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[R]ape falls at the extreme end of egregious conduct by a state actor. Id. Bodily
intrusions by state actors outside the scope of their authority shock the conscience.
A government official who acts with deliberate indifference to constitutional
rights also shocks the conscience. County of Sacramento v. Lewis, 523 U.S. 833
(1998). In County of Sacramento v. Lewis, the Court examined the substantive due
process as a limitation on executive power. Lewis involved a sheriffs reckless decision
to pursue a high speed chase resulting in a fatal crash. The Lewis Court reasoned that a
government official who acts with deliberate indifference to constitutional rights shocks
the conscience. In Lewis, the Court determined that the officers actions did not shock
the conscience, because he did not have the opportunity to deliberate and, thus, could not
act with deliberate indifference. See Hartsfield v. Colburn, 371 F.3d 454, 45657 (8th
Cir. 2004) (ruling that a detainees claim that prison officials were deliberately indifferent
to his need for dental care should have been analyzed under the Due Process Clause
rather than the Eighth Amendment; thus, the district court erred in granting summary
judgment where there were factual questions about whether jail personnel acted with
deliberate indifference when they did not arrange dental treatment until more than six
weeks after the detainees written request, causing him to suffer further pain and
The actions of the Department of Corrections shock the conscience and violate due
process. Beginning an execution before the proscribed date, using potentially lethal
doses of a drug the Department of Corrections has sworn it would not use, hiding the
initiation of the execution, and lying in sworn statements and pleadings about all of these
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things both shocks the contemporary conscience, Rogers, 152 F.3d 790, 797 (8th Cir.
1998), and runs contrary to fundamental rights that are deeply rooted in this nations
history and tradition, and implicit in the concept of ordered liberty. Moran, 296 F.3d at
By secretly using a chemical known for causing pain and complications and
injecting the prisoner before permissible by warrant, and by lying under oath and in court
documents regarding the use of that chemical, prison officials and other state agents,
including representatives of the attorney generals office have acted with deliberate
indifference to Mr. Ringos rights. See Avalos ex rel. Vasquez v. City of Glenwood, 382
F.3d 792, 799-801 (8th Cir. 2004) (observing that plaintiffs must prove that the
defendants acted despite a risk that was known or obvious, that they acted recklessly in
conscious disregard of the risk, and that the conduct shocks the conscience); Pietrafeso v.
Lawrence County, 452 F.3d 978, 98284 (8th Cir. 2006) (holding that the Eighth
Amendment deliberate-indifference standard applies to pretrial detainees, and absent
evidence that a jailer actually knew of and recklessly disregarded a risk of serious harm
to a detainee in denying him access to his prescribed medications, the deliberate-
indifference standard cannot be met). It is indisputable that the officials had time to
deliberate. Their efforts to hide and deny their actions further underscore their
When examined in light of an understanding of traditional executive behavior, of
contemporary practice, and of the standards of blame generally applied to them, it is
apparent that the prison officials actions shock the conscience. See Bonebrake v. Norris,
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417 F.3d 938, 943 (8th Cir. 2005) (quoting Lewis, 523 U.S. at 847 n.8)). Throughout our
nations experience with capital punishment, that state has been required to honor the
date set in a warrant of execution. Honoring the warrant of execution is implicit in
ordered liberty, a basic protection required in cases where the stakes could not be higher.
Moreover, blocking the publics access to the administration of potentially fatal drugs
shocks the conscience. Beginning an execution before the legally scheduled time is
contrary to this, particularly when done in secret. It is likewise implicit in the concept of
ordered liberty that a state would not begin an execution before the date prescribed by
the courts and that state agents would tell the truth in court proceedings when they are
under oath and under a duty of candor to the court and where the issues at stake are so
incredibly high. Missouris actions here run afoul of this requirement. Despite state law
to the contrary, Missouri begins its executions before the appointed date. It places the
intravenous line and administers, on at least two occasions, a potentially lethal dose of
drugs before the date of execution.
The action is timely. Until the States recent disclosure of this misconduct,
undersigned was unaware of the basis for this claim. Thus, raising it now is timely. See
Zack v. Tucker, 704 F.3d 922 (11th Cir. 2013) (holding that application of AEDPA
year limitations period under 2244(d)(1)(A) (D) is determined on claim-by-claim
basis, adopting Fielder v. Varner, 379 F.3d 113 (3d Cir. 2003) (Alito, J .), overturning
Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003). These claims are timely.

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub.L. 104-132, 110 Stat. 1214
(1996), codified mainly in sections of 28 U.S.C. (2241-2255).
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The Department of Corrections has recently disclosed that it begins the
administration of midazalom prior to the time that they claim the execution began. .
They start the IVs before midnight, and on at least two occasions, have administered a
potentially lethal dose of midazolam before the time that they publicly claim the
execution actually began. If repeated with Mr. Ringo, these actions would render him
unaware of the reason he is being executed before the execution is scheduled to begin.
See Ford. Moreover, it will violate his due process right to assist his counsel in the final
moments leading up to the schedule execution.
As discussed supra, the state recently disclosed that in several recent executions, it
placed IVs and administered intravenous midazolam prior to the date of execution. Dr.
J onathan Groner, a professor of surgery at Ohio State University, said that administering
midazolam in this manner may render an inmate unable to explain that he is in pain. Ex.
23. Dr. Karen Sibert noted that an inmate who had been recently injected with between
two and six milligrams of midazolam, as Missouri has done in all ten of its most recent
executions, would render an inmate difficult to arouse. Ex. 14. According to Dr.
Sibert, administering six milligrams would create a risk of death from obstruction of the
inmates airway.
Until the recent disclosures, it was not clear (1) when midazolam was being
administered, (2) how it was being administered, (3) how much was being administered,
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and (4) how often it was being administered. Representatives of the Department of
Corrections had offered sworn testimony that a sedative was offered to the inmate,
generally hours before the execution, which was in keeping with past practice. In
depositions, they led counsel to believe that versed was merely such a sedative. Their
account differs significantly from the recent disclosures, establishing that the Department
of Corrections before the legally scheduled time of execution injects the inmate, with or
without his consent, with a dose sufficient to render the inmate difficult to arouse, unable
to articulate pain, and, potentially, dead.
This claim ripened, at the earliest, when Mr. Ringos execution date was
scheduled a few weeks ago. Because Missouri only recently released documents
demonstrating its pattern of administering execution drugs at a time when the department
does not have the authority to perform the execution and revealing the incredibly high
dosages of Midazalom being utilized, the basis for this claim has only recently been
available to Mr. Ringo. A petition filed after the denial of a first petition but concerning
a subsequently ripened competency question is second-in-time, rather than successive
under subsection (b)(1) of section 2244 of title 28 of the United States Code. See
Morgan v. Javois, 744 F.3d 535, 538 (8th Cir. 2013). Mr. Ringos claim is properly
before this court.
Due process applies to inmates under a warrant of execution. The United States
Supreme Court has made it clear that an inmate is entitled to procedural protections
leading up to his execution. See Panetti v. Quarterman, 551 U.S. 930, 949 (2007)
(quoting Ford v. Wainwright, 477 U.S. 399, 424, 426 (1986)). Due process applies to
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competency determinations as well as clemency proceedings, two of the most common
procedures still underway during an inmates final hours. Ohio Adult Parole Authority v.
Woodard, 523 U.S. 272, 288-90 (1998) (OConnor, J ., concurring) (offering narrowest
holding; some process is due in clemency procedures); see also Marks v. United States,
430 U.S. 188, 193 (1977) (in cases without a majority, the narrowest decision controls);
Winfield v. Steele, 755 F.3d 629, 630 (8th Cir. 2014) (applying J ustice OConnors
concurrence as the controlling opinion). Due process requires some minimum
protections leading up to an execution.
The Eighth Amendment bars executing persons who are unaware of the
punishment they are about to suffer and why they are about to suffer it. Ford, 477 U.S.
at 422 (Powell, J . concurring); Panetti, 551 U.S. at 949 (explaining that J ustice Powells
concurrence is controlling decision in Ford). Executing a person who is unaware of the
execution serves no retributive purpose. Ford, 477 U.S. at 408. Where an inmate is
unaware of the crime and punishment at the time of the execution, the central purposes of
the execution are fatally undermined. See Panetti, 551 U.S. at 958-59. The Eighth
Amendment requires than an inmate be aware of the execution.
Upon a substantial threshold showing that an inmate may not be competent at
the time of execution, the inmate is entitled to a fair hearing consistent with
fundamental fairness. Ford, 477 U.S. at 424, 426. The fair hearing must include an
opportunity to present witnesses and to cross-examine those offered against the inmate.
Here, the states repeated use of high doses of a sedative, prior to the legally
scheduled time of execution, establishes a substantial threshold showing that the states
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execution of Mr. Ringo will violate due process and the Eighth Amendment. First, being
nearly unconscious would render Mr. Ringo unable to communicate with his attorney.
Whether expressing pain, or learning of a last minute reprieve from the governor, Mr.
Ringo has a due process right to be lucid enough to communicate with his counsel up to
the legally scheduled time of execution. The Department of Corrections current practice
violates this right.
Likewise, if Mr. Ringo is sedated prior to the legally scheduled start of his
execution, he will be incompetent to be executed. The retributive ends of capital
punishment will not be served if he is unaware that he is even being executed. The
states recent history of heavily sedating inmates prior to their executions creates a
substantial likelihood that Mr. Ringo will be rendered incompetent at the legally
scheduled start of his execution, violating the Eighth Amendment.
The states recent practice establishes a substantial threshold showing that Mr.
Ringo will be incompetent at the time of his execution. As such, Mr. Ringo is entitled to
discovery about his forthcoming execution as well as an opportunity to present evidence
about his competence.

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To make a claim under the Eighth Amendment, a prisoner must show a
substantial risk of serious harm, an objectively intolerable risk of harm that prevents
prison officials from pleading that they were subjectively blameless for purposes of the
Eighth Amendment. Baze v. Rees, 553 U.S. 35, 50 (2008) (opinion of Roberts, C.J .).
The question of whether the punishment is a violation of the ex post facto clause is one
with regard to whether there is a significant risk of an increased punishment compared
to the former method. Garner v. Jones, 529 U.S. 244, 255 (2000); Williams v. Hobbs, 658
F.3d 842, 848 (8th Cir. 2011).
A. The Use Of Midazalam, Compounded Pentobarbital, and Other Unnamed
And Unknown Drugs In Executions And Dispensing The Drugs Without An
Individualized Assessment Of The Prisoners Medical History And His Needs
Creates An Substantial Risk Of Serious Physical Harm that Is Objectively

The previously cited records reveal that the Department of Corrections personnel
have not only used midazalom on regular basis, but also that they have used various
combinations of drugs including valium and lidocaine in addition to the midazolam. As
established herein, midazalom was the drug that was common in the three botched
executions of Clayton Lockett, Micheal Woods and Dennis McGuire . These were all
executions in which there were reports of the prisoners gasping for breath, choking, and
writhing in pain. Exs. 18, 19. Dr. Karen Sibert, an anesthesiologist, noted that six
milligrams of intravenous midazolam could be enough to obstruct the prisoners airway,
substantially affecting the ability of the recipient to breath. Ex. 14. Additionally, at
various dosages that have been administered in Missouri executions, Dr. Groner has said
that the Midazolam could significantly disable the prisoner that an observer would not be
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able to determine if the inmate were in pain or the degree of pain being experiencing
from the injected drugs. Clearly, based on this evidence, there is a substantial likelihood
that an execution utilizing this drug creates a substantial and objectively intolerable risk
of harm. Nor can prison officials or any state agent, who engaged in a deliberate
campaign to mislead the inmates, the public and the Courts as to their use of this drug in
executions and the extent to which the drug is being used, assert that they are blameless
or ignorant of the possibility of that harm.
The reality that midazalom could serve as an agent to cause the prisoner to mask
the pain he is experiencing calls into question the departments continuous claims in
pleadings over the past year that the prisoners were not experiencing pain prior to their
deaths and yet again raises the very disturbing issues that surround the use of illegally
produced compounded pentobarbital that were raised in prior proceedings. See Exh. 24
(Second Amended Complaint in Zink v. Lombardi, Case No. 2:12-cv-04209)
As established in the pleadings in Zink v. Lombardi , the use of the compounded
pentobarbital itself creates a substantial risk of serious bodily harm. Defendants new
protocol creates a significant risk of a more painful execution in two distinct ways. First,
it abandons the use of FDA-approved pharmaceuticals in favor of unregulated and
unreliable compounded drugs from a secret source. Dr. Sasich explains that
pentobarbital injection compounded from unverified ingredients poses a substantial risk
of harm from the ingredients alone, including the dangers of sub-potency, super-
potency, contamination that would lead to excruciating pain, or even the administration
of an entirely different drug. Ex. 25, 28. These risks are new to Respondents current
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protocol. Second, the new method is more painful than previous protocols in a global
sense. According to the Eighth Circuit, the previous protocol as carried out by
Respondents predecessors did not even remotely pose a substantial risk of serious
harm. Clemons v. Crawford, 585 F.3d 1119, 1127-28 (8th Cir. 2009). That is no longer
true of the newly revealed secret protocol. See Ex. 25 28, 30-35, 46; Ex. 26 6, 17.
What the Court said in Zink over a year ago remains true today: If Plaintiffs allegations
are true, the new protocol would violate the ex post facto clause regardless of the fact that
it was subject to Defendants discretion because it would violate their vested rights to be
free from cruel and unusual punishment and retroactive increases in punishment. Zink v.
Lombardi, Case No.2:12-cv-4209, Doc. 61, at 7-8. Therefore, Plaintiffs have stated a
viable ex post facto claim. Id. at 8.
Plaintiffs have documented numerous risks that derive from the use of
compounded pentobarbital in executions, which create the substantial risk of serious,
unnecessary and substantial harm and mental anguish. Ex. 25 (Sasich Aff.) 46. Those
risks are essentially four-fold:
First, explains Dr. Sasich, there is a substantial risk that the drug may be sub-
potent or super-potent, either from: (a) the fact that Missouris protocol specifies no
means of adjusting the measurements of the chemical to account for the drugs
hygroscopic (water-absorbing) nature, (b) chemical degradation caused by impurities or
contamination, (c) a compounding error, or (d) the possibility that Defendants drug is
not actually pentobarbital. Id. 22, 32-35. Sub-potent pentobarbital risks acute
intoxication, life-threatening but not fatal respiratory depression, and/or paradoxical
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stimulation. Id. 34. Super-potent pentobarbital, meanwhile, may result in suffocation
and gasping for breath, before the loss of consciousness. Id. 35.
Second, Dr. Sasich identifies the danger that compounded pentobarbital will be
contaminated with dangerous allergens, toxins, bacteria, or fungusany of which could
induce severe allergic or blood reactions that are highly unpredictable, rapidly evolving
and potentially painful and agonizing. Id. 28-30.
Third, the compounded pentobarbital may contain foreign particles that will
either contaminate the solution or precipitate out of it, creating a substantial risk of pain
and suffering on injection, as well as a risk of pulmonary embolism. Id. 30, 33.
Fourth, the dosage form of the drug may fail to reach or maintain the proper pH,
which causes burning on injection, the precipitation of solid particles that could cause a
pulmonary embolism, or the multiplication of bacteria and fungus that may create
instability and/or incompatibility with human blood. Id. 33.
Defendants will not be able to cite to any evidence to the contrary. While in prior
litigation, they have relied on affidavits from Dr. Mark Derschwitz, the doctor has
recently announced that he will no longer serve as the states expert in lethal injection
cases. Exh. 27. Should Defendants seek to use a prior affidavit from Dr. Derschwitz,
further discovery and depositions are necessary, especially in light of the new revelations
concerning the probable injection of Midazolam as part of the execution protocol, before
that stale and outdated evidence can be considered credible in this or any court.
Finally, the chemical logs suggestion that the DOC has used multiple drugs
including valium and lidocaine, in addition to the Midazolam that are not named in the
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execution protocol and that vary in use and dosage from execution to execution. No
notice is given to the prisoner as to what drugs will be used. This provides evidence that
if Mr. Ringos execution is carried out under the existing system of execution it is
impossible to accurately and fully be predicted what drugs the DOC will choose to use,
the source of the drugs, the amount of drugs that will be used, and how those drugs will
be administered, thus creating an undue and intolerable risk that the compounded
pentobarbital, combined with midazolam and the various mixtures of lidocaine, valium
and innumberable other possible unknown, unnamed and unpredictable drugs
administered to the prisoner will interact with each other and cause undo pain or adverse
allergic reactions will react in such a way that will cause Mr. Ringo substantial pain.
This as well constitutes an undue and intolerable risk of substantial bodily harm.
B. The DOCs failure to follow consistently any kind of execution protocol
inevitably results in psychological pain and torture that is a violation of
the Eighth Amendment, the Ex Post Facto Clause, and due process of

A capitally sentenced inmate has the constitutional right to know the means,
method, and time of his pending execution. In other words, he should know when it is to
happen and how. Since the nineteenth century the Supreme Court has recognized that
mental anxiety is a cognizable claim under the ex post facto clause. See In re Medley,
134 U.S. 160, 10 S.Ct. 384, (1890). Medley was a habeas case involving a statute enacted
after the prisoner committed his offense. That statute prohibited the warden from
communicating to the prisoner the date and time of execution, and the Supreme Court
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held that it violated the ex post facto clause because it created an immense mental
anxiety amounting to a great increase of the offenders punishment. Id. at 172.
In Williams v. Hobbs, supra the Eighth Circuit rejected the inmates claims
regarding undue anxiety about the chemicals to be used in the execution protocol as
speculative. This result was supported by the fact that the protocol had been in place for
two years and the warden had made no attempt to change it and the fact that the statute
contained specific FOIA provisions that enabled the inmates to learn of the wardens
choice of chemical or chemicals that may be injected, including the quantity, method,
and order of the administration of the chemical or chemicals. Ark.Code Ann. 5-4-
617(a)(5)(B). Id. at 850.
What distinguishes this case from Hobbs is nose-face plain. In Hobbs, the warden
told the truth and stuck to his words for two years. In this case, the same state actors lied
to the court and have not kept their word instead changing the drugs to be administered
and the method of their administration at the whim and caprice of the Director and his
cronies. The mental anxiety from these shifty eyes and shifting sands is apparent and a
solid basis for the requested relief.
The records previously cited reveal a pattern of using different drugs in different
doses at each execution and a deliberate disregard of the claimed execution protocol. The
unpredictability of what combination of drugs will be used and what will happen at Mr.
Ringos execution creates a psychological anguish and anxiety that is intolerable under
the Eighth Amendment and that did not exist previously, when the DOC was actually
following a written protocol. This psychological anguish subjects Mr. Ringo to a anxiety
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and psychological torture that exponentially increases his original punishment and thus
violates his rights against cruel and unusual punishment under the Eighth Amendment,
the ex post facto clause and due process of law.

The right of the citizen, even if he is a prisoner, to access to the courts is hardly
worth debating. This fundamental right resides comfortably in the First Amendment and
the Due Process Clause of the Fifth Amendment. Bill Johnsons Restaurants, Inc. v.
NLRB 461 U.S. 731, 743 (1983) ([T]he right of access to the courts is an aspect of the
First Amendment right to petition the Government for redress of grievances.); Wolff v.
McDonnell, 418 U.S. 539, 579 (1974). (The right of access to the courts is founded in the
Due Process Clause and assures that no person will be denied the opportunity to present
to the judiciary allegations concerning violations of fundamental constitutional rights.)
In all respects, Mr. Ringo deserves that constitutional guarantee up to the moment
he draws his last breath. The citizen's right to access to an impartial tribunal to seek
redress for official grievances is so fundamental and so well established that it is
sometimes taken for granted. Woodford v. Ngo, 578 U.S. 81 (2006) (Stevens, J .
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By hampering legitimate discovery requests, lying under oath in the context of
discovery reluctantly provided, and deliberately misleading Mr. Ringo and his co-
plaintiffs in the Zink action, as well as the general public and the courts as to what drugs
they are using, and how they intend to execute Mr. Ringo, the state actors i.e. the
department of corrections officials and their lawyers have effectively prevented Mr.
Ringo from having any meaningful access to the court system for purposes of redressing
his Eighth Amendment and other legitimate legal claims. Court processes contemplate
compliance with certain procedures. These procedures are aimed at allowing the parties
to discover the truth and thus allow courts to make correct decisions as to the issues
before them. Statements given under oath must be truthful if the system is to function.
This is especially true of those acting upon behalf of the federal or state governments.
Lawyers are bound by an ethical duty of honesty and candor to the tribunal. Mo. S. Ct.
Rule 4-3.3, 4-3.4 and 4-4.1. Where parties to a proceeding violate these legal and ethical
duties, they undermine the integrity of the entire process and strip the court of its
essential function as a truth-finding mechanism. The entire judicial process becomes
meaningless. Where these violations are conducted on the parts of individual citizens,
they can face perjury charges or, if lawyers, disciplinary proceedings by their bar
associations. Where these violations occur on the part of state actors, embued with an
understood authority to act on behalf of the citizens of the state, they also become grave
constitutional violations.
In addition to the deception previously discussed with regard to lies regarding
the use of midazolam in executions and misrepresentations made to courts with regard to
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its use by DOC attorneys, David Dormire also swore in his answers to propounded
interrogatories that medical personnel did not administer or have any responsibilities
concerning the administration of versed or midazolam. Ex. 28. This also rings false
because the only Midazalom in the DOCs drug stockpile must be administered via an
IV. Ex.12. Moreover, because Mr. Dormire claims to be familiar with protocols and
procedures surrounding every execution, he cannot claim ignorance.
These lies and misrepresentations in combination with the DOCs continuous
effort to do everything possible to deny Mr. Ringo access to information he needs to
raise his claims require immediate court intervention. In addition the general publics
right to access of truthful information is vital if they are to have a full understanding of
the actions taken on their behalf by the agents of of the government, after all that is the
democratic process. The DOCs efforts to obstruct access to information and to the court
systems has been a persistent theme throughout the Zink litigation. See e.g. Ex. 29
(Motion for Sanctions filed in Zink v. Lombardi, 2:12-cv-4209). These general actions
have also given rise to numerous lawsuits by the ACLU and entities representing the
press and the general public.
Mr. Ringo has a right to fair and honest dealings with state officials who are his
opponents in any litigation. Their failure to observe their oaths and the rules of a judicial
system that relies on honesty and candor violates the trust by the tribunals before which
they appear and the implied trust that every citizen is entitled to, that those who are
charged with enforcing the law will also willingly follow it. To willingly mislead,
misrepresent and bear false witness, the state actors in the Zink litigation and by
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extension the plaintiffs in that action of the belief that they can rely on the courts ability
to perform its fundamental truth-seeking function. If the courts cannot perform as they
are expected to, the citizen is denied any meaningful ability to access the courts and to
have his grievances redressed and resolved. This is an independent and free-standing
constitutional violation.
Wherefore, Mr. prays the Court:
1. To grant and issue the writ of habeas corpus, and
2. To conduct such hearing as may be necessary to determine the issues, and
3. To order that Mr. Ringos execution be stayed so that evidence may be
adduced as to the issues herein stated, and
4. For such other and further relief to which Mr. Ringo may show himself justly

Respectfully submitted,

/s/ Kathryn B. Parish
8000 Maryland Ave., Suite 350
Clayton, Missouri 63105
Missouri Bar No. 23406
(314) 721-6040
Fax: (314) 721-8545
Case 4:03-cv-08002-BCW Document 101 Filed 09/04/14 Page 27 of 28

Constitutional Advocacy, LLC
7201 Delmar Blvd. #201
St. Louis, Missouri 63130-4106
(314) 604-6982
Fax: (314) 754-9083
E-mail: simonjw1@yahoo.com

Attorneys for Petitioner

Certificate of Service
I hereby certify a true and correct copy of the foregoing was forwarded for
transmission via Electronic Case Filing (ECF) this 4
day of September, 2014 to the
offices of all counsel of record.
/s/Kathryn B. Parish
Attorney for Petitioner

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