**CAPITAL CASE**

EXECUTION OF JACK JONES SCHEDULED FOR APRIL 24, 2017

Nos. 16-8814 and 16A1027

In the
Supreme Court of The United States

JACK JONES,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

OPPOSITION TO APPLICATION FOR STAY OF EXECUTION

AND CERTIORARI

LESLIE RUTLEDGE
Attorney General

LEE RUDOFSKY*
Solicitor General

NICHOLAS J. BRONNI
Deputy Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
lee.rudofsky@arkansasag.gov
Counsel for Respondents *Counsel of Record
 To the Honorable Samuel Alito, Associate Justice of the Supreme Court of the

United States and Circuit Justice for the Eighth Circuit:1

Introduction

As previously explained in responses to various petitions recently filed by

condemned Arkansas inmates, this Motion and Petition by Petitioner Jack Jones,

represents another dilatory and piecemeal-litigation tactic designed to delay his

lawful execution. Petitioner has done all he can to manipulate the judicial process

and prevent Arkansas from carrying out his just and lawful executions. Petitioners

decision to wait until yesterday April 23, 2017in which to seek relief from the

Arkansas Supreme Court constitutes reason enough to deny his Motion and

Petition. Moreover, this Court has already received notice of this very claim and

denied it. Jones v. Norris, U.S.D.C. No. 5:00CV00401 GH, Order Denying

Certificate of Appealability (April 13, 2006); Jones v. Norris, No. 06-2101, Judgment

(June 14, 2006), cert. denied, Jones v. Norris, 549 U.S. 1035 (2006).

Petitioner wrongly suggests that this Court should stay his imminent

execution to resolve his claim that the verdict form completed by jurors during the

penalty phase of his criminal trial reflected inconsistencies. Petitioner has had

many years in which to litigate this issue, and he has in fact done so on this very

issue without success. Moreover, Petitioner does not seriously suggest a split of

1 Due to time constraints, Respondent submits this document in opposition to the

application for a stay, and if the Court decides to immediately review Petitioners
petition for a writ of certiorari, Respondent submits the arguments contained herein
in opposition to certiorari.
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authority. And his claim that the Arkansas Supreme Courts decision is

inconsistent with other Arkansas Supreme Court decisions is wrong and in any

event not cognizable for federal review. For each of these reasons, he lacks any

likelihood of success on the merits of his claims. Both the writ and the stay

application should be denied.

Jurisdiction

The jurisdiction of this Court is invoked under 28 U.S.C. 2101(f), 28 U.S.C.

1257(a), and Supreme Court Rule 23.

Background

A. Petitioner

Petitioner is a convicted capital murderer who has enjoyed multiple

opportunities to challenge his conviction, sentence, andcriticallythe method by

which he will be lawfully executed. His guilt and the justness of his sentence is

beyond any dispute.

On April 17, 1996, Petitioner Jack Jones was convicted of the capital murder

and rape of Mary Phillips, and the attempted capital murder of Marys eleven-year-

old daughter, Lacy, at the accounting office where Mary worked. On June 6, 1995, a

man who had come into the business earlier that day and borrowed a book entered

the business again. He then told Lacy and her mother that he was sorry, but that

he was going to have to rob (them). He ordered Mary to lay down on her stomach,

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and then made Lacy lay down on top of her mother. After retrieving the cash out of

the register, he took them into a small break room. The man took Lacy into a

bathroom off of the break room, tied her to a chair, then left. When he returned,

Lacy, now crying, asked the man not to hurt her mother, to which he replied, I'm

not. Im going to hurt you. He began to choke Lacy until she passed out. After Lacy

lost consciousness, Jones struck her at least eight times in the head with the barrel

of a BB gun, causing severe lacerations and multiple skull fractures. When Lacy

woke up, she saw blood and began to vomit. She went back to sleep and awakened

later when police, seeing her bloodied body and thinking she was dead, were taking

photographs of her.

Police found Marys body nude from the waist down. A cord from a nearby

Mr. Coffee pot was wrapped around her neck and wire was tied around her hands,

which were positioned behind her back. Bruises on her arms and back indicated

that she had struggled with her attacker prior to her death. According to autopsy

results, Mary died from strangulation and blunt-force head injuries. Rectal swabs

indicated that she had been anally raped before she was killed. Jones admitted to

the police that he had committed the crimes because he wanted to get revenge

against the police. He reasoned that his wife had been raped, and that the police

had done nothing about it. A White County jury convicted him and sentenced him

to death, life imprisonment, and thirty years imprisonment, respectively. The

Arkansas Supreme Court affirmed his convictions and sentences. Jones v. State,

329 Ark. 62, 947 S.W.2d 339, cert. denied, 522 U.S. 1002 (1997). Subsequently, the

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Arkansas Supreme Court affirmed the denial of Joness post-conviction Rule 37

petition. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000). The federal courts

subsequently rejected his claims for federal collateral relief and the Supreme Court

denied review. Jones v. Norris, U.S.D.C. No. 5:00CV00401 GH, Order Denying

Certificate of Appealability (April 13, 2006); Jones v. Norris, No. 06-2101, Judgment

(June 14, 2006), cert. denied, Jones v. Norris, 549 U.S. 1035 (2006). Jones has

previously avoided execution dates set in 2007, 2010, and 2015.

B. Procedural History

On February 27, 2017, Arkansas Governor Asa Hutchinson set execution

dates for eight Arkansas death row inmates, including Petitioner Jack Jones whose

execution date was set for April 24, 2017. Knowing that Arkansass supply of

midazolam expires at the end of April, Petitioner and multiple other condemned

inmates waited a month to launch a legal avalanche designed to obtain stays of

execution. As part of that effort, Petitioner and other inmates have filed numerous

cases in multiple forums and successfully halted three executions already.

In the Arkansas Supreme Court, Petitioner Jones raised two points in his

direct appeal. 329 Ark. at 65, 67, 947 S.W.2d at 340-41. He argued that the trial

court erred by: (1) admitting a photograph of Lacys skull, taken prior to her

surgery, (CR-96-541 R. 1793); and (2) denying his motion for a new sentencing trial

based upon what he claimed were the jurys inconsistent mitigating circumstance

findings. Id. The Arkansas Supreme Court disagreed with both claims. Most

relevant here, in addressing Jones mitigation claim, the Arkansas Supreme Court

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concluded that any purported jury error in assessing mitigation was harmless

beyond a reasonable doubt, holding as follows:

In this case, the jury made inconsistent findings with

regard to the following factors: (1) Jones suffered from
the mental disease or defect of attention-deficit
hyperactivity disorder; (2) despite his efforts, Jones was
repeatedly misdiagnosed and treated with inappropriate
medications; and (3) Joness parents were often
inconsistent in disciplining their children. It is unclear
whether some or none of the jurors determined that these
factors constituted mitigating circumstances. However,
even if we were to resolve the confusion in Joness favor
and assume that some of the jurors did conclude that these
factors constituted mitigating circumstances, it is clear
that the jury unanimously concluded that five aggravating
circumstances existed, and that these aggravators
outweighed beyond a reasonable doubt any mitigating
circumstances found by any juror to exist. To be sure,
nothing in the forms indicated to the jury that a
mitigating circumstance must have been found
unanimously before it could be considered in the weighing
process. (Emphasis added). (Internal citations omitted).
The jury further found that the aggravating
circumstances justified beyond a reasonable doubt a
sentence of death. Moreover, the jury was instructed
that, if it made these three statutory findings, it may
sentence Jones to death. Each juror signed a verdict form
sentencing Jones to death, and each juror indicated orally
that he or she had voted for the death penalty.

Because the jury specifically found that five

aggravators outweighed beyond a reasonable doubt any
mitigating circumstances found by any juror to exist, we
conclude that any inconsistencies by the jury in the
completing of subsections (b) and (c) of Form Two were
harmless error. See Wainwright v. State, supra.

Jones v. State, 329 Ark. 62, 70-73, 947 S.W.2d 339, 343-344 (1997) (emphasis

added).

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 Jones subsequently sought post-conviction relief in the trial court pursuant to

Rule 37 of the Arkansas Rules of Criminal Procedure. He raised more than ten

claims for relief. The trial court denied the petition, and the Arkansas Supreme

Court affirmed. Jones v. State, 340 Ark. 1, 8 S.W.3d 482 (2000).

On October 31, 2000, Jones filed a petition for federal habeas corpus relief

pursuant to 28 U.S.C. 2254, where he claimed, among other things, that the

Arkansas Supreme Court wrongly applied the harmless-error rule to the

inconsistent jury findings of mitigating evidence. Jones v. Norris, 5:00-CV-401, DN.

1. On November 8, 2004, the federal district court denied relief and dismissed

Joness petition. Jones, 5:00-CV-401, DN. 28. The district court subsequently

permitted Jones to reopen his case to raise additional claims, but, on April 13, 2006,

the district court denied Jones habeas relief and denied a certificate of

appealability. Jones, 5:00-cv-401, DN. 56, 60.

Jones nevertheless sought a certificate of appealability from the United

States Court of Appeals for the Eighth Circuit on two issues, including the issue

that he purports to raise herenamely, his claim that the Arkansas Supreme Court

violated his constitutional rights by treating him differently from other death

sentenced persons. Jones v. Norris, No. 06-2101 (8th Cir. 2006). The Eighth Circuit

denied Jones a certificate of appealability and dismissed his appeal on June 14,

2006, and the United States Supreme Court denied his petition for a writ of

certiorari on November 13, 2006. Jones v. Norris, 549 U.S. 1035 (2006).

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 Additionally, in the years since his conviction and sentence became final,

Petitioner Jones has been a participant in multiple litigations whereby he and his

fellow death-row plaintiffs have, with some degree of success, manipulated the court

system by strategically filing and nonsuiting lawsuits challenging Arkansass

lethal-injection protocol. See Kelley v. Johnson, 2016 Ark. 268, 496 S.W.3d 346, 352

(holding, inter alia, that Arkansass lethal-injection is constitutional under Glossip

v. Gross, 135 S.Ct. 2726 (2015)); see also McGehee v. Hutchinson, No. 17-1804 (8th

Cir. ) (en banc) (Apr. 17, 2016) (reversing stays of execution granted by the Eastern

District of Arkansas in lethal-injection suit filed in wake of the U.S. Supreme

Courts decision in Kelley).

Reasons for Denying a Stay and Writ of Certiorari

A stay of execution is not justified because Petitioner has not demonstrated

that his claim warrants this Courts review, much less that there is a significant

possibility that this Court would reverse the Arkansas Supreme Court. The Petition

should be denied because: (1) Petitioner has been dilatory in waiting until nearly

twenty-four hours before his execution in order to challenge this issue, review of

which has already been declined by this Court; (2) Petitioners claim lacks any merit

because the Arkansas Supreme Court rightly determined that the jurors in

Petitioners criminal sentencing did not make any contradictory findings; and (3)

this Court lacks jurisdiction as the Arkansas Supreme Court determined that

Petitioners claim lacked any merit on an independent and adequate state law

ground.

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 I. Petitioner Jones has been dilatory in waiting until yesterday
April 23, 2017in which to challenge his lawful conviction

Petitioner Jones has demonstrated extreme and unreasonable delay in

reasserting his long rejected mitigation claim. One of the realities of capital

litigation is that inmates deliberately engage in dilatory tactics to prolong their

incarceration and avoid execution of the sentence of death, Rhines v. Weber, 544

U.S. 269, 277-278 (2005), and Jones is no exception. Obviously, Jones was aware of

(and could have re-raised) his claim at any point in the last twenty years. Indeed,

he raised this exact same claim in his state court direct appeal and again in his

2000 federal habeas proceedings. Jones v. Norris, 5:00-CV-401, Docket No. (DN) 1.

And his eleventh-hour, last-ditch attempt run at a claim that the Arkansas

Supreme Court has long ago put to rest should not be rewarded with a stay or recall

of the mandate.

Moreover, as noted above courts apply a strong equitable presumption

against the grant of a stay where a claim could have been brought at such a time as

to allow consideration of the merits without requiring an entry of a stay. Hill, 547

U.S. at 584 (citation and quotation omitted); accord, e.g., Kelley v. Griffen, 2015 Ark.

375, at 4 (for a stay, petitioners claim must have only recently ripened[.]).

Applying that standard, Jones stay request should be denied because he waited

until the day before his execution to file his claim (and request a stay) all in the

hopes of manipulating the judicial system into shielding him from justice.

Accordingly, Petitioners Motion to Stay and Petition for Writ of Certiorari

should be denied.

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 II. The jurors in Petitioner Joness criminal sentencing did not
render inconsistent verdicts

Jones argues that the Arkansas Supreme Court erred in failing to

consistently adhere to its own precedents. Jones acknowledges that the Arkansas

Supreme Courts earlier decision in this case, as well as its related decision in

Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), held that inconsistent

mitigating findings do not merit reversal where the jury unanimously found

aggravating circumstances that outweighed beyond a reasonable doubt all

mitigating circumstances. Jones nevertheless argues that the Arkansas Supreme

Court should have reversed itself based on other cases. In particular, Jones points

to Willett v. State, 322 Ark. 613, 911 S.W.2d 937 (1995), and Camargo v. State, 327

Ark. 631, 940 S.W.2d 464 (1997. But in deciding Jones direct appeal, the Arkansas

Supreme Court specifically found those case factually distinguishable. Jones, 329

Ark. at 69 (holding the facts in those cases are distinguishable from those presently

before us).

For instance, in resolving Jones direct appeal, the Arkansas Supreme Court

found that Willett erroneously extended Skipper v. South Carolina, 476 U.S. 1

(1986) to establish a rule that all errors relating to mitigating circumstances are

prejudicial. Jones, 329 Ark. at 70, 947 S.W.2d at 343. But Skipper only held that in

a capital sentencing hearing, the exclusion of mitigating evidence violates the

defendants right to present all relevant evidence in mitigation. Thus, as the

Arkansas Supreme Court found in resolving Jones direct appeal, Skippercontrary

to Willett suggestiononly required automatic reversal where mitigating evidence

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was erroneously excluded. No mitigating evidence was erroneously excluded in

Joness case.

Additionally, the Arkansas Supreme Courts prior decision in Petitioner

Joness case is likewise consistent with the remaining cases that Jones now cites.

The error in Greene v. State was the trial courts erroneous exclusion of relevant

mitigating-circumstance evidence. Id., 317 Ark. 350, 358, 878 S.W.2d 384, 389

(1994). Because the evidence should have been admitted, the Court correctly

applied Skipper and did not attempt to determine the impact that evidence would

have had on the jury. Id. (citing Skipper v. South Carolina, 476 U.S. 1, at 8 (1986)).

Similarly, in Kemp v. State, 324 Ark. 178, 203, 919 S.W.2d 943, 955 (1996) and

Greene v. State, 335 Ark. 1, 23, 977 S.W.2d 192, 202 (1998), the Court found that

because evidence of an aggravating circumstance was erroneously admitted a

harmless error analysis did not apply.

By contrast, in the other cases that Jones cites, a harmless error analysis

applied because the issue was not whether evidence had been improperly admitted

or excluded but how it was considered. See Hill v. State, 331 Ark. 312, 318-19, 962

S.W.2d 762, 765 (harmless error analysis applied because the issue was whether the

jury erred in its consideration of the mitigating evidence); Larry Jones v. State, 340

Ark. 390, 400, 10 S.W.3d 449, 455 (2000) (any error harmless where appellant

claimed that there was insufficient evidence to support the submission of an

aggravating circumstance to a jury). And applying that rule here, as the Arkansas

Supreme Court has previously concluded, because the jury found that aggravating

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circumstances existed beyond a reasonable doubt and that the aggravating

circumstances outweighed the mitigating factors, any inconsistencies in assessing

the mitigating circumstances would not warrant reversal.

The Arkansas Supreme Court properly relied on its prior decision in

Wainwright v. State, 302 Ark. 371, 790 S.W.2d 420 (1990), in reviewing Jones

claims. Indeed, as the Eighth Circuit concluded in reviewing that case on federal

habeas in Wainwright v. Lockhart, 80 F.3d 1226 (8th Cir. 1996), the Wainwright

jurys inconsistent conduct in indicating that it had found the lack of resistance

mitigating circumstance on one special verdict form while indicating on the other

verdict form that it had not found the same circumstance did not rise to a

constitutional violation because the jury had specifically found three aggravating

circumstances outweighed beyond a reasonable doubt all mitigating circumstances.

Wainwright was executed on January 8, 1997.

Joness reliance on Hicks v. Oklahoma, 447 U.S. 343 (1980), for the

proposition that state law entitlements must be treated consistently is

misplaced. Hicks was sentenced to imprisonment in accordance with the habitual

offender statute in effect in Oklahoma at the time of his conviction. Following his

conviction, the statutory provision under which he was sentenced was declared

unconstitutional by the Oklahoma Court of Criminal Appeals. As a result, the

Supreme Court determined that Hicks was entitled to have his sentence set aside in

light of the unconstitutionality of the statutory sentencing provision. Hicks, 447

U.S. at 345. But unlike in Hicks, the Arkansas Supreme Court found no

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constitutional error that could upset Joness death sentence. In fact, during its

earlier review of Jones cases, the Arkansas Supreme Court noted that, [t]he

Eighth Circuit Court of Appeals held that the jurys inconsistent findings [in

Wainwright] did not rise to an Eighth or Fourteenth Amendment violation where

the jury specifically found that three aggravators outweighed beyond a reasonable

doubt all mitigating circumstances. Jones 329 Ark. at 72 (citing Wainwright v.

Lockhart, 80 F.3d 1226 (8th Cir. 1996), cert. denied, 519 U.S. 968 (1996)). Thus,

recall of the mandates was not warranted.

The Petitioners Motion to Stay and Petition for Writ of Certiorari should be

denied.

III. This Court lacks jurisdiction as the Arkansas Supreme Courts

decision affirming Petitioners sentencing was based upon
independent and adequate state grounds

Because the Arkansas Supreme Court decided the issue presented by

Petitioner entirely based upon state law, the decision rests on a state law ground

that is independent of that question and is adequate to support the judgment. It is

a well established principle of this Court that before [it] will review a decision of a

state court it must affirmatively appear from the record that the federal question

was presented to the highest court of the State having jurisdiction and that its

decision of the federal question was necessary to its determination of the cause.

Williams v. Kaiser, 323 U.S. 471, 477 (1945). This Court will not review a question

of federal law decided by a state court if the decision of that court rests on a state

law ground that is independent of the federal question and adequate to support the

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judgment. Coleman v. Thompson, 501 U.S. 722, 729 (1991), rehg denied, 501 U.S.

1277 (1991).

In this case, under Arkansas state law, the Arkansas Supreme Court

determined that the jurors in Petitioner Joness criminal sentencing did not arrive

at conflicting or inconsistent verdicts. The Petitioner, therefore, has failed to

establish this Courts jurisdiction to decide the federal issue that he wishes to press.

See Coleman, 501 U.S. at 729 (stating that, in the context of direct review of a state

court judgment, the independent and adequate state ground doctrine is

jurisdictional).

Moreover, Jones argues nothing more than that the Arkansas Supreme Court

erred by refusing to grant the extraordinary remedy of recalling its nearly twenty-

year-old appellate mandate in this case on the ground that it misapplied its

harmless-error analysis to the jurys lack of precision about whether some, but not

all, of them found certain mitigating circumstances. As Jones concedes, the verdict-

form issue was resolved against him not only by the state appellate court, but also

by the federal habeas courts, both of which denied him a certificate of appealability

on this issueand after which this Court denied review on certiorari. To the extent

one might assume arguendo that the petition advances a federal question that was

decided in relation to this issue at all (it does not), the petition nevertheless

identifies no split of authority or confusion among the lower courts as to the issue; it

alleges merely that the state appellate court was wrong in its mandate-recall

decision, or in its original harmless-error decision. Joness argument is no more

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than an invitation to this Court to review every single capital case on tenuous

Eighth and Fourteenth Amendment grounds. This Court should not accept such an

invitation.

The Petitioners Motion to Stay and Petition for Writ of Certiorari should be

denied.

Conclusion

For the foregoing reasons, the application for a stay and the petition for a

writ of certiorari should be denied.

Respectfully submitted,

_/s/ Lee Rudofsky___________

LESLIE RUTLEDGE
Attorney General

LEE RUDOFSKY
Solicitor General

NICHOLAS J. BRONNI*
Deputy Solicitor General

OFFICE OF THE ARKANSAS

ATTORNEY GENERAL
323 Center St., Suite 200
Little Rock, AR 72201
(501) 682-6302
lee.rudofsky@arkansasag.gov

*Counsel of Record for Respondent

April 24, 2017

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 Nos. 16-8814 and 16A1027

JACK JONES,

Petitioner,

v.

STATE OF ARKANSAS,

Respondent.

CERTIFICATE OF SERVICE

I hereby certify that I did on the 24th day of April, 2017, send electronically
from Little Rock, Arkansas, a copy of the foregoing. All parties required to be
served have been served electronically.

/s/ Lee Rudofsky