Whether the Due Process Clause requires that death-sentenced individuals have meaningful access to executive clemency proceedings that afford an opportunity to present newly discovered evidence of disability that would render them ineligible for execution under the Eighth Amendment

No question identified. : STANDARDS FOR A STAY OF EXECUTION The standards for granting a stay of execution are well-established. Barefoot v. Estelle, 463 U.S. 880, 895 (1983). There “must be a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari or the notation of probable jurisdiction; there must be a significant possibility of reversal of the lower court’s decision (here, the denial of Mr. Zack’s motion to stay his execution); and there must be a likelihood that irreparable harm will result if that decision is not stayed.” Jd. (internal quotations omitted). MR. ZACK SHOULD BE GRANTED A STAY OF EXECUTION The underlying issue is sufficiently meritorious The questions raised in Mr. Zack’s petition are sufficiently meritorious for a grant of certiorari. The underlying issue is whether the unenforceable, inconsistent and arbitrary rules governing Florida’s clemency procedures satisfy this Court’s mandate in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 289 (1998) (O'Connor, J., when those rules are subject to change without notice and the actual practices they govern are shrouded in secrecy. The petition thus presents a significant question of constitutional law and is not subject to any procedural impediments. This Court has recognized that the importance of the clemency process in a capital case cannot be understated: “Far from regarding clemency as a matter of mercy alone, we have called it ‘the “fail safe” in our criminal justice system.” Harbison v. Bell, 556 U.S. 180, 192 (2009) (quoting Herrera v. Collins, 506 U.S. 390, 415 (1993)). This “fail safe” is necessary due to the “unalterable fact that our judicial system, like the human beings who administer it, is fallible.” Herrera, 506 U.S. at 415. It is “deeply rooted in our Anglo-American tradition of law, and it is the historic remedy for preventing miscarriages of justice where the judicial process has been exhausted.” Id. at 390; see also Dretke v. Haley, 541 U.S. 386, 399 (2004) (Kennedy, J., dissenting) (“Among its benign if too-often ignored objects, the clemency power can correct injustices that the ordinary criminal process seems unable or unwilling to consider.”). As explained in Mr. Zack’s underlying petition, at the time of his 2013-2014 clemency proceedings, scientific understanding of FAS and its relationship to intellectual disability—which was critical to a clemency determination—did not exist. Nearly a decade later, when that knowledge came into being, there was no longer a meaningful avenue to present it: no more state-allocated resources; no ability for his state postconviction or federal habeas counsel to act as clemency counsel; no opportunity for a clemency interview or hearing, despite the complete Clemency Board turnover; no notice that clemency considerations had resumed; no updates. Every mechanism contemplated by the governing rules had already been concluded. Thus, Mr. Zack’s clemency proceedings deprived him of all meaningful opportunity to present—and thus failed to contemplate—the significant new scientific understanding of Mr. Zack’s disability, which places him in the category of persons exempt from execution. That restriction of meaningful access obviated the “fail safe” purpose of executive clemency. This is a due process violation that cannot be tolerated. See Ohio Adult Parole Authority, et. al v. Woodard, 523 U.S. 272, 28889 (1998). This Court now has the opportunity to enforce its holding in Woodard, and to ensure that death-sentenced individuals have meaningful access to the “fail safe” of clemency. There is a significant likelihood of the lower court’s reversal Should this Court grant Mr. Zack’s request for a stay and grant review of the underlying petition, there is a significant possibility of the lower court’s reversal. The Eleventh Circuit denied Mr. Zack’s motion to stay solely based upon their finding that he could not demonstrat