Whether the Equal Protection Clause permits disparate treatment of capital defendants by state prosecutors in seeking execution dates without a meaningful judicial review of constitutional claims

No question identified. : APPLICATION FOR STAY OF EXECUTION PENDING DISPOSITION OF PETITION FOR WRIT OF CERTIORARI To the Honorable Samuel Alito, Associate Justice, and Circuit Justice for the United States Court of Appeals for the Fifth Circuit: INTRODUCTION David Renteria is due to be executed by Texas in about 24 hours— despite the fact that no court has reviewed his meritorious claim that his federal right to equal protection of the law was violated when the prosecution refused to allow him to review its trial file, although it had allowed similarly situated capital prisoners facing execution to do so. Texas law gives convicting courts discretion in deciding when to order execution of a capital judgment. In May 2023, Texas prosecutors chose to seek an execution date for Mr. Renteria and not to seek one for a similarly situated defendant who had been on death row longer, had more post-conviction review, and sought to litigate the same claim as Mr. Renteria. Mr. Renteria asked the trial court to give him a hearing on the State’s motion—the same type of hearing another trial court in El Paso County held for the other defendant when the State sought an execution date for him in 2020. The trial court denied Mr. Renteria a hearing and rubber-stamped the State’s proposed execution order. Then the State moved to vacate the order. Twenty-four hours after the court granted that request, the State moved to reset the execution. Again, the court rubber-stamped the State’s proposed order. Mr. Renteria moved for reconsideration. He argued the State’s disparate treatment of him, including its refusal to let him inspect the prosecution’s files after it gave the same opportunity to the other defendant. The convicting court agree that he had been denied equal protection of the laws, and that the prosecution’s delays prejudiced him. The court therefore vacated the execution order and withdrew the warrant. The Texas Court of Criminal Appeals (TCCA) granted the State’s mandamus petition from this ruling, reversing the vacation of the execution date and the discovery order. In doing so, the TCCA essentially declared that for prisoners in Mr. Renteria’s shoes, the convicting court is a constitution-free zone. In the Court’s words, there is “no freewheeling jurisdiction to seek to safeguard Renteria’s Fourteenth Amendment rights,” including his rights under the Equal Protection Clause. Adding insult to injury, the Court failed to abide its own rules and granted mandamus without calling for a responsive pleading from Mr. Renteria. Faced with the deprivation of his constitutional right to equal protection of the law and the inability to vindicate this right in state court, Mr. Renteria filed a notice of removal in the appropriate federal district court. That court granted a hearing on removal petition, but then reversed itself and remanded the matter to state court. Mr. Renteria unsuccessfully appealed this decision to the Court of Appeals for the Fifth Circuit. He is preparing to file with this Court a Petition for Certiorari. Mr. Renteria respectfully requests a stay of his execution, currently scheduled for tomorrow, November 16, 2023, at 6.p.m. Central Standard Time, pending its disposition of his petition for writ of certiorari. As set out below, this case satisfies each consideration relevant to that determination. MR. RENTERIA IS ENTITLED TO A STAY The standard for granting a stay of execution is well-established. This Court will consider the prisoner’s likelihood of success on the merits, the relative harm to the parties, and the extent to which the prisoner has unnecessarily delayed his or her claims. Hill v. McDonough, 547 U.S. 573, 584 (2006); Nelson v. Campbell, 541 U.S. 637, 649-50 (2004). There must be “a reasonable probability that four members of the Court would consider the underlying issue sufficiently meritorious for the grant of certiorari” and “a significant possibility of reversal of the lower court’s decision,” in addition