E-Filed

01/18/2017 @ 11:33:53 AM
Honorable Julia Jordan Weller
Clerk Of The Court

IN THE SUPREME COURT OF ALABAMA

EX PARTE ROBERT BRYANT MELSON

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) No. 1981463
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In re: State of Alabama,

Petitioner,
v.
Robert Bryant Melson,
Respondent.

States Second Motion to Set an Execution Date

Pursuant
Appellate

to

Rule

Procedure,

8(d)(1)
the

State

of
of

the

Alabama

Alabama

Rules

of

respectfully

requests this Honorable Court to set an execution date for

carrying out Robert Bryant Melsons duly-adjudicated sentence
of death.

The State previously moved this Court to set an

execution date for Melson in February 2016, but this Court

has not ruled on that motion.

Melson committed his horrific

crime many years ago, and his conventional appeals have been
completed for several years.

Thus, the State respectfully

submits this renewed motion to set Melsons execution date.

In support of its motion, the State asserts the following.
Robert Bryant Melson currently resides on Alabamas death
row, where he has spent the past twenty-two years.

In April

1994, Melson fatally shot three employees and wounded another

1

while robbing a Popeyes restaurant in Gadsden with his

accomplice, Cuhuatemoc Peraita.

Melson was found guilty and

sentenced to death for three robbery-murder convictions, life

imprisonment without the possibility of parole on a fourth
capital murder conviction, and forty years in prison on a
first-degree robbery conviction.

The jury recommended by a

vote of 10-2 that Melson be sentenced to death for his three

convictions of capital robbery-murder.
As set forth more fully below, Melsons conviction and
sentence are final because he has completed his direct appeal,
state

post-conviction

review,

and

federal

habeas

Melsons federal habeas proceedings ended in 2014.

Thomas,

134

S.

Ct.

905

(2014).

There

is

review.

Melson v.

currently

no

impediment to Melsons conviction and sentence.1 Accordingly,

the time has come for this Court to enter an appropriate order

After the State moved to set his execution date in February

2016, Melson filed a 1983 lawsuit in the Middle District of
Alabama alleging that Alabamas method of execution was
unconstitutional. The fact that this federal lawsuit remains
pending does not prevent this Court from setting Melsons
long-overdue execution date.
In fact, the Middle District
recently dismissed an identical lawsuit filed by one of
Melsons co-plaintiffs, and the Eleventh Circuit held that
his claims were both time-barred and unlikely to succeed on
the merits. Grayson v. Warden, No. 16-17167, 2016 WL 7118393,
at *4-7 (11th Cir. Dec. 7, 2016).
2

upon disposition of the appeal or other review in Melsons

case.

Ala. R. App. P. 8(d)(1).

The State seeks execution of Melsons duly-adjudicated

death sentence and requests this Court set a date for his
lawfully ordered sentence of death to be carried out.
I.

The procedural history indicates that Melson has fully

exhausted his appeals.
Melsons conviction and death sentence have been fully

reviewed

through

direct

appeal,

state

post-conviction

petition, and application for a federal writ of habeas corpus.

A.

Trial and direct appeal proceedings

Melson was indicted for four counts of capital murder

stemming from his participation in the robbery of a Popeyes
restaurant in Gadsden, Alabama, that resulted in the murders
of three people and the attempted murder of a fourth.
1, C. 37-39.2

On the night of April 15, 1994, seventeen-year-

old Bryant Archer was working at Popeyes.

72.

Vol.

Vol. 12, R. 1171-

Archer, along with three other employees Nathaniel

Baker, Tamika Collins, and Darrell Collier remained in the

restaurant

after

it

closed

at

11:00

p.m.,

cleaning

and

References to the record are from the state court record

that was filed in the United States District Court for the
Northern District of Alabama.
3

preparing for the next day.

Upon unlocking the back door to

take out the trash, Archer said that the door swung open and
a Mexican and a black male came in.

Id. at 1163.

Archer

recognized the person he identified as a Mexican as a former

Popeyes employee named Cuhuatemoc Tepoc Peraita. Id. Both
robbers had bandanas that covered their faces.

Id. at 1166.

Holding a weapon, the black male told Darrell Collier to

open the office and told the employees to get inside, then
told Collier to open the office safe.

Id. at 1166-67.

Collier complied, and the robbers took money from the safe.
Id. at 1167.

The black male then told the four employees to

go into the restaurants cooler, and he closed the door behind

them.

Id. at 1168.

The cooler door opened again almost

immediately, however, and the black male began shooting.

All four employees were shot.

Id.

Baker, Collier, and Collins

were killed; Bryant Archer was shot multiple times and blacked
out.

Id. at 1169.

When Archer awoke, he crawled over the

bodies of his fellow employees and called for emergency

assistance.
After

Id. at 1169.
the

police

arrived

at

the

restaurant,

identified one of the robbers as Peraita.

Archer could not identify the black male.

Archer

Id. at 1170.3

He

Vol. 12, R. 1170.

4

gave the police a physical description of both robbers and

told them that Peraitas car was an older-model Monte Carlo.
Vol.

13,

R.

1214.

One

of

the

officers

recognized

the

description of the robbers and the car, then went to Peraitas

residence, where he saw an older-model Monte Carlo parked in
front.

Id. at 1238. Soon thereafter, the Monte Carlo left

the residence, and several officers followed the car and

pulled it over.

Id. at 1240.

Melson was driving the car,

and Peraita was in the front passenger seat.

Id.

The police

took Melson and Peraita into custody at 1:20 a.m., placed

them in separate cars, and transported them to the Gadsden
Police Department for questioning.

Id. at 1242-43.

During questioning, Melson said that he and Peraita had

been together the entire evening and were separated only when
they were pulled over by the police.

Vol. 14, R. 1510-17.

He also said that he and Peraita had been the only occupants
of the Monte Carlo that evening.

Id. at 1516-17.

Melsons

statement remained unchanged throughout the two-and-a-halfhour interview.

Id. at 1517.

Two days after giving his initial statement, Melson asked

to speak to Officer Ragan.

Id. at 1525-26.

At that time,

Melson told Officer Ragan that Peraita picked him up around

5

4:00 p.m. on April 15th and that they stayed together until
about 11:40 p.m., when Peraita told Melson he wanted to see
his girlfriend, Tamika, at Popeyes.

Id.

Melson stated that

he told Peraita to let him out at a subdivision called Green

Pastures, where he said that he walked around until around
1:00 a.m., when Peraita picked him up.

Id.

Melson asked to

drive, then drove past Popeyes, where they saw police cars
and ambulances.

Id.

When Peraita started to tell him what

he had done, Melson said that he did not want to know.

Id.

According to Melson, the two drove to Peraitas house and

changed clothes because they were wet.

Id.

Laura Laverty, who was involved in a relationship with

Melson, said that Melson left her house with Peraita around
4:00 p.m.

They returned to her house around 11:00 p.m. and

left again around 11:30.

Vol. 12, R. 1143.

Prior to that

evening, Peraita stated that he needed money and was thinking

about robbing Popeyes.

Id.

Two weeks before, Peraita told

Laverty that he had broken into a truck and stolen a gun.

Id. at 1146-47.

Laverty also testified that after Melsons

arrest, she visited Melson in prison.

During one of those

visits, Melson asked her to speak to Melissa [Patterson] and

a guy named Big Dirt to see if they would tell Melsons
6

defense counsel they had seen Melson somewhere else when the
robbery and murders were occurring.

Id. at 1148.

Melissa Patterson testified that she had known Melson

for three years and had lived with him for about three months,
breaking off the relationship in February 1994.
1537.

Vol. 14, R.

Patterson testified that following his arrest, Melson

wrote her three letters from jail asking her to go to the

police and to his defense counsel, and to provide him with an
alibi for the night of the crime.

Id.

Specifically, he

asked her to say she had seen him at Frankies on the night
of the crime.

Id. at 1539-40, 1542, 1543-44.

Patterson

refused to provide Melson with an alibi, and she took the

three letters to Officer Ragan after receiving them.

Id. at

1541.
Evidence linking Melson to the murders included testimony
concerning items found during a search of Peraitas house.
The police found a bag filled with money, a University of
Alabama sweatshirt, two pairs of blue jeans, one pair of
tennis shoes, and one green bandana.

Id. at 1430-62.

In

Peraitas front yard, the police found six shell casings.

Id. at 1441.

These casings were positively identified as

having been fired from the murder weapon, which was recovered
7

from the Coosa River.

thrown

into

the

Peraitas brother.

Id. at 1450-51.4

river

by

Edmundo

The gun had been

Peraita,

Cuhuatemoc

Id.

John Case, an expert in trace evidence and fingerprints,

testified that he compared the British Knight shoes belonging
to Peraita and the FILA shoes belonging to Melson with plaster
casts made from shoeprints that were located in a ditch behind
Popeyes.

Vol. 15, R. 1618, 1623-28.

Case testified that in

one of those plaster casts, he found imprints of two pebbles

and a seed that were imbedded in the tread of the shoe.
at 1632-33.

Id.

Upon comparing that plaster cast to Melsons

left tennis shoe, Case concluded that the two matched.

He

further testified that in his opinion, to find by chance

another shoe that would be the same size, the same brand, and
have the same degree of wear or lack of wear and also have
those inclusions in the same spot on the same shoe and on the
cast would be very remote such as to make it impractical to
consider another shoe.

Id. at 1637.

After the gun was recovered, a ballistics expert determined

that the expended bullets taken from the restaurant cooler
and from the bodies of Nathaniel Baker and Darrell Collier
were fired from the submitted gun. Vol. 14, R. 1564.

Melson was convicted of three counts of murder made

capital because the killings were committed during the course
of a robbery in the first degree, see Ala. Code 13A-540(a)(2) (1975), one count of murder made capital because it
involved the murder of two or more persons, see id. 13A-540(a) (10), one count of attempted murder, see id. 13A-62, 13A-4-2, and one count of robbery in the first degree, see
id. 13A-8-41.

Vol. 2, C. 289, 294, 299, 304, 307, 310;

Vol. 16, R. 1922-1923.

the

three

counts

of

By virtue of their guilty verdict for

capital

murder

during

the

course

robbery, the jury unanimously found that the existence of the

aggravating

circumstance

that

the

capital

offense

was

committed during the commission of a robbery (Section 13A-549(4)) was proven beyond a reasonable doubt.

See Ala. Code

13A-5-45(e). The jury recommended by a vote of 10-2 that

Melson be sentenced to death for his three convictions for
capital robbery-murder, and the trial court sentenced him to
death, in accordance with the jurys recommendation.
C. 476-87, 480-82, 484, 486; Vol. 17, R. 2195.

Vol. 3,

Melson was

also sentenced to life imprisonment without the possibility

of parole for his capital conviction for the murder of two or
more persons pursuant to a single scheme or course of conduct,
9

Vol. 3, C. 488, Vol. 17, R. 2196, forty years imprisonment

for his conviction for attempted murder, Vol. 3, C. 490, Vol.
17, R. 2197, and forty years imprisonment for his conviction
for robbery in the first degree, Vol. 3, C. 492, Vol. 17, R.
2198.
The Alabama Court of Criminal Appeals and this Court
affirmed

Melsons

convictions

and

sentences.

Melson

v.

State, 775 So. 2d 857 (Ala. Crim. App. 1999), affd, Ex parte
Melson, 775 So. 2d 904 (Ala. 2000).

On March 5, 2001, the

United States Supreme Court denied Melsons petition for writ

of certiorari.
B.

Melson v. Alabama, 532 U.S. 907 (2001).

State post-conviction proceedings

On March 4, 2002, Melson filed an unverified petition

for post-conviction relief pursuant to Rule 32 of the Alabama
Rules of Criminal Procedure in the Etowah County Circuit
Court.5

Vol. 21, C. 4-20.

His petition failed to comply with

Rule 32.6(a) of the Alabama Rules of Criminal Procedure, which

provides that a Rule 32 petition must be verified by either
the petitioner or the petitioners counsel.

Because neither

Melson nor his counsel verified his petition, the circuit

5

When Melson filed his unverified Rule 32 petition in the

state circuit court on March 4, 2002, there were only two
days remaining on his 28 U.S.C. 2244(d) limitation period.
10

court dismissed it as not properly filed.

Vol. 21, C. 24-

25.
Melson did not properly file a verified Rule 32 petition
until March 25, 2002, more than a year (384 days) after his
conviction became final.

Vol. 21, C. 27-45.

On October 17,

the Etowah County Circuit Court dismissed Melsons verified

petition, holding that it failed to raise a material issue of
fact or law, that it failed to state a claim for which relief
may be granted, and, that Melsons claims were insufficiently
pleaded and/or precluded from relief.

Vol. 21, C. 170-212.

Melsons notice of appeal was due to be filed in the

Etowah County Circuit Court by November 28, 2002.

See Ala.

R. App. P. 4(a)(1) ([T]he notice of appeal required by Rule

3 shall be filed with the clerk of the trial court within 42
days of the date of the entry of the judgment or order
appealed from) (emphasis added).

Melson improperly and

belatedly, in any regard attempted to file his notice of

appeal in the Court of Criminal Appeals on December 2, 2002.
He eventually filed his notice of appeal in the appropriate
court, the Etowah County Circuit Court, eight days after the
forty-two-day time period lapsed.
December

16,

the

Court

of

Vol. 22, C. 213-24.

Criminal

Appeals

issued

On
a
11

certificate

of

judgment

dismissing

Melsons

appeal

for

failure to file his notice of appeal within the prescribed

time period.

Vol. 22, C. 225.

Two months later, on February 11, 2003, the Alabama

Attorney Generals Office sent a letter to Melsons counsel,
and also served Melson with a copy of the letter, referencing
Melsons failure to properly file a notice of appeal and
setting forth the States understanding that he had not made
a subsequent attempt to challenge the dismissal of his Rule
32 petition.

Vol. 22, C. 248-49.

In that letter, the State

encouraged Melsons counsel to pursue federal habeas relief

but noted that a federal habeas petition would be barred by
the statute of limitations.

Id.

On March 6, some three months after the Court of Criminal

Appeals dismissed his appeal, Melson, through counsel, filed
a verified petition in the Etowah County Circuit Court
requesting an out-of-time appeal pursuant to Rule 32.1(f) of
the Alabama Rules of Criminal Procedure.

Vol. 22, C. 226-

32. The only ground asserted in support of this extraordinary

request was that the failure to timely perfect his appeal was
not

Melsons

fault,

but

instead,

was

due

solely

to

the

12

ineffective assistance of Rule 32 counsel.

229-31.

Vol. 22, C.

Specifically, Melson alleged:

Upon receipt [of the trial courts order denying

relief], local counsel attempted to file the Notice
of Appeal and Docketing Statement with the Clerk of
the Court for Etowah County and was told that the
Notice of Appeal must be filed in the Court of
Appeals, rather than in the trial court, and that
it could be filed by mailing.
Vol. 22, C. 230.
On March 27, the State filed an answer to Melsons
verified petition and moved to dismiss the petition on the
ground that Melsons allegations were legally and factually
baseless.

Vol. 22, C. 235-39.

Along with its motion to

dismiss, the State submitted affidavits from both the circuit

clerk and the appeals clerk of the Etowah County Circuit
Court.

Vol. 22, C. 237-38, 242-43, 245-46.

refuted

Melsons

assertions

that

someone

These affidavits
in

the

clerks

office told Loretta Collins, Melsons local counsel, to file

the notice of appeal in the Court of Criminal Appeals.

Id.

They also established that anyone seeking assistance with

filing a notice of appeal in the Etowah County Circuit Clerks
office would speak to either the circuit clerk, Billy S.
Yates, or to the appeals clerk, Kay McClendon.
242.

Vol. 22, C.

Both Mr. Yates and Ms. McClendon knew that Loretta D.

13

Collins served as local counsel for Melson, and at the time

of the filing of their affidavits neither had met much less
spoken to Ms. Collins.

Vol. 22, C. 242, 245.

Further, Mr.

Yates and Ms. McClendon, as well as the entire staff of the

circuit clerks office, were well aware that a notice of
appeal from a denial of a Rule 32 petition must be filed in
the trial court, and they had not advised anyone otherwise.
Id. After examining all the evidence, the circuit court found
that Melsons factual contentions regarding being misled into
filing the notice of appeal in the wrong court to be without
merit.

Vol. 22, C. 250.

Accordingly, on April 3, 2003, it

dismissed Melsons successive Rule 32 petition.

Melson timely filed a notice of appeal.

Vol. 22, C. 251-

52. The Court of Criminal Appeals affirmed. Melson v. State,

902 So. 2d 715 (Ala. Crim. App. 2004), and this Court denied
certiorari review.

Ex parte Melson, No. 1030777 (Ala. Dec.

10, 2004).
C.

Federal habeas corpus proceedings

Having failed to obtain relief in the state courts, on

December 13, 2004, Melson, through counsel, filed a petition
for writ of habeas corpus pursuant to 28 U.S.C. 2254.

See

14

Doc. 1.6
2005.

He filed an amended habeas petition on January 19,

See Doc. 9.

The State moved to dismiss Melsons

petition because it was filed outside the one-year statute of

limitations applicable to habeas petitions.

See Doc. 13.

In

its memorandum opinion, the federal district court addressed

the following questions: (1) was Melsons federal habeas
petition filed within the statutory time limitations set out
in 28 U.S.C. 2244(d) (1)(A), and if not, was equitable
tolling warranted, and (2) did Melson timely file his petition
pursuant to 28 U.S.C. 2244(d)(1)(D).

Doc. 27 at 11-35.

The court ultimately resolved those questions against Melson

and dismissed his petition as time-barred.
The

State

unverified

asserted

Rule

32

that

petition

because
was

not

Docs. 27, 28.

Melsons
properly

initial,
filed

in

accordance with Alabama procedural rules, that petition did

not toll Melsons time for filing a federal habeas corpus
petition.
initial

Doc. 13 at 4-5.
Rule

32

petition

As the State noted, Melsons

was

not

verified,

filing

requirement mandated by Rule 32.6(a) of the Alabama Rules of

Criminal Procedure.

Id. at 4.

Melson did not file a verified

References to numbered documents are from the federal habeas

proceedings in the Northern District of Alabama.

15

Rule 32 petition until March 25, 2002, more than a year (384
days to be exact) after his conviction became final and after
the one-year limitations period of 2244(d) had lapsed.
at 4-5.

Id.

The federal district court ruled that Melsons

unverified Rule 32 petition filed on March 4, 2002, was not

properly filed pursuant to 28 U.S.C. 2244(d) (2) and,
therefore, did not toll his time for filing a federal habeas
petition.

The court held: Since Melsons March 4, 2002,

Rule 32 application did not trigger the tolling requirements

of 28 U.S.C. 2244(d)(2), and his March 25, 2002, amended
complaint

cannot

relate

back

to

the

filing

date

of

his

original application, Melsons petition for writ of habeas

corpus is untimely as per the statutory requirements of 28
U.S.C. 2244(d)(1)(A).

Doc. 27 at 18.

In addition, the

court ruled that any attorney error regarding the filing of

the unverified Rule 32 petition did not establish sufficient
grounds to warrant equitable tolling.

Id.

The district court also rejected Melsons claim that his

petition

was

2244(d)(1)(D).

timely

filed

pursuant

Doc. 27 at 19-27.

to

28

U.S.C.

Melson contended that

because his habeas petition was based upon newly discovered

evidence of innocence that was discovered in the fall of
16

2004, his habeas petition was timely.

Id. at 19.

In

addition, Melson claimed that the prosecutors suppression

of evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963), prevented him from discovering certain evidence until
the fall of 2004.

Id. (citing Doc. 19 at 29-38).

The district court conducted an extensive analysis to

determine

whether

Melson

had

made

showing

of

factual

innocence under the standard enunciated in Schlup v. Delo,

513 U.S. 298 (1995).
examined

the

In evaluating this claim, the court

affidavits

provided

by

Melson

to

determine

whether he had established sufficient actual innocence to

overcome his procedurally defaulted claims.

Doc. 27 at 26.

The district court ultimately concluded that Melson failed to

demonstrate

sufficient

evidence

dismissed the untimely petition.

of

factual

innocence

and

Doc. 27 at 27-35.

The Eleventh Circuit Court of Appeals affirmed.

v. Allen, 548 F.3d 993 (11th Cir. 2008).

Melson

Melson filed a

petition for writ of certiorari in the United States Supreme

Court, which was denied.
(2009).

Melson v. Allen, 130 S. Ct. 254

He later petitioned for rehearing, and the Supreme

Court granted his petition, vacated the earlier denial, and

17

remanded the case for further consideration in light of

Holland v. Florida. Melson v. Allen, 130 S. Ct. 3491 (2010).
The Eleventh Circuit remanded the case to the district
court so that it may conduct the necessary fact-finding in
the first instance in accordance with the principles set forth
in Holland. Melson v. Allen, 611 F.3d 1380 (11th Cir. 2010).
After conducting an evidentiary hearing, Magistrate Judge
Harwell Davis issued a report and recommendation holding:
The habeas petition is procedurally barred because
Melson failed to properly file his state court Rule
32
petition
before
the
federal
statute
of
limitations ran out, and Melson has not shown that
the facts and circumstances surrounding the filing
of the Rule 32 petition warrant equitable tolling
of the statute of limitations.
Doc. 87 at 29.

Based on the evidence presented at the

hearing, the magistrate judge found that Melsons state postconviction counsel, Ingrid DeFranco, perform[ed] competent
legal work, maintained an open line of communication with
Melson, kept Melson truthfully informed of key developments
in his case as per their agreement, always acted in Melsons
interest, and never abandoned him or was disloyal to him.
Doc.

87

at

DeFrancos

21-22.
failure

The
to

magistrate

verify

judge

Melsons

petition as a garden variety mistake.

characterized

initial

Rule

32

Doc. 87 at 24.
18

Accordingly,

he

held

that

DeFrancos

actions

have

no

resemblance to the type of egregious, professional misconduct

necessary

to

circumstances.
held

that

exercise
case.

justify

Doc. 87 at 21.

[t]he

record

reasonable

also

diligence

finding

of

extraordinary

The magistrate judge further

shows
in

that

Melson

prosecuting

did

his

not

habeas

Doc. 87 at 25.

After considering Melsons objections to the report and

recommendation, the district court adopted and approved the
findings and recommendation of the magistrate judge. Melsons
petition was, therefore, dismissed with prejudice.
91.

See Doc.

The district court subsequently denied Melsons Rule 59

motion to set aside the judgment.

See Doc. 93.

appealed to the Eleventh Circuit, which affirmed.

Melson

Melson v.

Commr, Alabama Dept. of Corrs., 713 F.3d 1086 (11th Cir.

2013).

Melson then filed a petition for writ of certiorari

with the United States Supreme Court, which was denied.

Melson v. Thomas, 134 S. Ct. 905 (2014).
II. This Court should set an execution date even though
Melson has filed a federal challenge to Alabamas method
of execution.
Although there are no pending challenges to the validity
of Melsons conviction and sentence, Melson recently joined
19

a pending lawsuit in federal court challenging Alabamas

method of execution.

Melson, however, does not raise any new

claims, but merely raised allegations that have already been

rejected by the Eleventh Circuit and the Middle District of
Alabama.

See Grayson, 2016 WL 7118393, at *4-7.

The fact

that this lawsuit is pending should not deter this Court from
setting Melsons execution date.
The question of whether any further delay is warranted
in Melsons case is not a state-law question under Rule
8(d)(1) of the Alabama Rules of Appellate Procedure, but,
rather, is best determined by the Middle District of Alabama
the federal district court in which Melsons lawsuit is
pending.

As noted by the United States Supreme Court in Hill

v. McDonough the case that first recognized the availability

of

1983

as

vehicle

for

asserting

lethal

injection

challenges the equitable remedy of a stay of execution in

these cases must be balanced against the States strong
interest in enforcing its criminal judgments without undue
interference from the federal courts.

126 S. Ct. 2096, 2104

(2006) (citing Nelson v. Campbell, 541 U.S. 647, 649-50

(2004)).

The only voice the residents of Alabama have to

represent their strong interest in enforcing the States

20

lawful criminal judgments without undue interference from the

federal

courts

is

through

this

Courts

issuance

of

the

requested order setting an execution date.

Further, the federal courts are in the best position to
balance the equities in determining whether a lethal injection
challenge warrants further delay of Melsons execution.

The

United States Supreme Court has held that any federal court
that is petitioned for a stay of execution so as to allow
litigation of a 1983 lethal injection challenge must balance
the equities with 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

requiring entry of a stay.

of

the

merits

without

Id. at 2104 (citing Nelson, 541

U.S. at 650). The stay determination further turns on whether

the lawsuit is viewed as speculative, dilatory, or abusive.
Id.

As the Hill Court recognized, it is the responsibility

of the federal courts to protect the States from such abusive

lawsuits.

Id.

Melsons method-of-execution lawsuit has no relation to

the States lawful criminal judgment.

Indeed, the entire

theory of permitting such lawsuits under 1983 is that they

do not bear on the underlying criminal proceedings.

Id. at
21

2096.

By the Supreme Courts own decree, the federal courts

are the appropriate venues for balancing the equities, and it

is their duty to respect any decision of this Court setting
an execution date and to protect such an order against any
abusive or dilatory suit.

Hill v. McDonough, 464 F.3d 1256,

1259 (11th Cir. 2006) (quoting Hill, 126 S. Ct. at 2104).

This Court should set an execution date despite the fact that
Melson has filed a lawsuit challenging Alabamas method of
execution in federal court.
III. CONCLUSION
There currently are no pending challenges to the validity
of Melsons duly-adjudicated conviction and death sentence.
Melson has exhausted his direct appeal, his state postconviction remedies, and his federal habeas remedies.

As

such, it is time for his death sentence to be carried out.

Pursuant to Rule 8(d)(1) of the Alabama Rules of Appellate
Procedure, the State respectfully requests this Court enter
an order fixing a date of execution for Robert Melson.
Respectfully submitted,
Luther Strange
Attorney General
s/ J. Clayton Crenshaw
J. Clayton Crenshaw
Assistant Attorney General
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s/ Thomas R. Govan, Jr.

Thomas R. Govan, Jr.
Deputy Attorney General

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CERTIFICATE OF SERVICE
I hereby certify that on the 18th day of January, 2017,
the foregoing was served by United States mail, first class,
postage

prepaid,

and

addressed

to

the

attorneys

for

petitioner as follows:

John Anthony Palombi

Christine A. Freeman
James T. Lawley
Federal Defenders
Middle District of Alabama
Federal Defenders Program, Inc.
817 South Court Street
Montgomery, AL 36104-4905

s/ Thomas R. Govan, Jr.

Thomas R. Govan, Jr.
Deputy Attorney General

ADDRESS OF COUNSEL
Office of the Attorney General
Capital Litigation Division
501 Washington Avenue
Montgomery, AL 36130
(334) 242-7300
tgovan@ago.state.al.us

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