Whether Rodney Berget was arbitrarily deprived of conflict-free counsel in violation of the Fourteenth Amendment when his counsel determined not to file an otherwise meritorious appeal because he decided that doing so would be contrary to his spiritual duties

QUESTIONS PRESENTED FOR REVIEW Petitioner Juliet Yackel respectfully requests a stay of Mr. Rodney Berget’s execution, presently scheduled for 2:30 p.m. ET on October 29, 2018. This stay is requested pending this Court’s resolution of his petition for writ of certiorari, filed today, October 29, 2018. According to two of the nation’s leading experts on intellectual disability, Mr. Berget is intellectually disabled under current medical definitions and as demonstrated by a wealth of evidence, including special education placement, childhood IQ tests, and participation in the Special Olympics. Nonetheless, a South Dakota hearing court found he was, in fact, eligible for execution. In so holding, that court relied on screening tests that are not properly considered for diagnosing (or ruling out) intellectual disability, court-derived factors akin to those rejected by this Court in Moore v. Texas, 137 S. Ct. 1039 (2017), as well as false testimony from the state’s expert. At Mr. Berget’s insistence (and on the advice of a spiritual advisor), post-conviction counsel refused to enter a notice of appeal from this ruling, although counsel believes that the lower court’s disposition of the claim of intellectual disability is wrong. Yet postconviction counsel did not appeal it because he believes Mr. Berget should be able to obtain what will — if he is correct that Mr. Berget is intellectually disabled — be an unconstitutional execution. Ms. Yackel petitioned the South Dakota Supreme Court, requesting that court to appoint her as a guardian ad litem to protect Mr. Berget’s interests. The South Dakota Supreme Court denied the peti tion solely on the basis of an intellectual disabilities proceeding that failed to comply with Atkins v. Virginia, Hall v. Florida, and Moore v. Texas and Mr. Berget’s present representation counsel who are conflicted and have abandoned him. That decision gives rise to the questions presented: 1. Was Rodney Berget arbitrarily deprived of his entitlement to conflict free counsel in violation of the Fourteenth Amendment when his counsel determined not to file an otherwise meritorious appeal because he decided that doing so would be contrary to his spiritual duties? 2. Can a prisoner who has made a substantial threshold showing that he is intellectually disabled waive the claim that the Eighth Amendment as interpreted in Atkins v. Virginia, 536 U.S. 304 (2002) precludes his execution?