Whether a prisoner who is incompetent to be executed can be executed under the Eighth and Fourteenth Amendments

No question identified. : INTRODUCTION Petitioner Benjamin Cole is in danger of being executed by the State of Oklahoma while incompetent. He is incarcerated at the Oklahoma State Penitentiary under a sentence of death. His execution is imminent and set for Thursday, October 20, 2022, at 10:00 am Central Time. Mr. Cole invokes the original jurisdiction of this Court under Title 28 U.S.C. § 2241. See, e.g., In Re Troy Davis, 557 U.S. 952 (2009). Counsel for Mr. Cole have diligently litigated Mr. Cole’s incompetency to be executed. The Oklahoma state court and the federal district court have denied relief at every turn on procedural grounds—not on the important question of Mr. Cole’s level of rational understanding of his current fate. Cole v. Farris, Case No. MA2022-898 (Okla. Crim. App. Oct. 17, 2022); Cole v. Farris, Case No. 15-CV-0049 (N.D. Okla. Oct. 19, 2022)!. Mr. Cole suffers from severe, diagnosed mental illness and organic brain impairment. He is schizophrenic and has a significant brain lesion that worsens his symptoms making him paranoid and delusional. Mr. Cole has not named anyone from his legal team to witness his execution. Unless this Court grants this original petition and a stay of execution, there will be no one present at Mr. Cole’s execution ' An appeal to the Tenth Circuit Court of Appeals was lodged soon after the denial of the habeas petition by the district court. As of the filing of this Original Writ, the Tenth Circuit has yet to rule. Cole v. Farris, Case No. 22-5093. 2 who will be able to advocate for his Eighth and Fourteenth Amendment rights. Oklahoma has no procedures in place during the hours leading up to the actual execution that would protect his rights. Counsel for Mr. Cole requests that this Court grant a stay of execution and remand to federal district court for a full hearing. RELEVANT PROCEDURAL HISTORY Mr. Cole was convicted of murder and sentenced to death by a Rogers County, Oklahoma jury in 2004. His mental health and adjudicative competency were in question throughout his trial, state post-conviction, and federal habeas proceedings. He was diagnosed with schizophrenia. Once his appeals were exhausted and an execution date set, Mr. Cole in 2015 requested that the warden of Oklahoma State Penitentiary (OSP) refer his case to the Pittsburg County District Attorney’s Office for a jury trial on his competency to be executed, as required under Oklahoma statute when the prima facie burden of “good reason to believe” is satisfied. Okla. Stat. tit. 22, § 1005 (originally enacted 1910, amended 1913). The warden refused, and the trial court as well as the Oklahoma Court of Criminal Appeals (OCCA) denied Mr. Cole’s requests to order the warden to undertake the referral through mandamus proceedings. Mr. Cole’s execution was stayed indefinitely, however, amid investigation and litigation regarding Oklahoma’s lethal injection protocol. In 2022, after the lethal injection plaintiffs lost their case in federal district court, it was clear plaintiffs’ executions were again imminent. Thus, on May 20, 3 2022, counsel for Mr. Cole contacted OSP Warden Jim Farris, who had replaced the warden from 2015, enclosing updated materials relevant to the execution competency issue. These included 2016, 2018, and 2022 reports from psychologist Dr. George Hough, Ph.D., ABPP, detailing Mr. Cole’s severe mental illness, decompensated mental condition, and incompetency for execution, and a 2022 report from neuroradiologist Dr. Travis Snyder, DO, regarding Mr. Cole’s abnormal MRI and brain lesion. Mr. Cole again requested the initiation of competency for execution proceedings per statute. See Attachment A, consisting of attachments that were filed with the state trial court, Exs. 1 (A4-A6), 6 (A23-45), 7 (A46-50), 8 (A51-54), 9 (A55-58), and 12 (A89-98). Counsel sent Warden Farris a supplemental letter on May 25, 2022, with an additional expert report from Dr. Snyder. Ex. 2 (A7) and 13 (A99-104). Warden Farris was t