NEWYORK 6392191 (2K) 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA 

WILLIE MCNAIR, ) 

 ) 

Plaintiff/Counter-Defendant, ) 

) 

v. ) Case No. 2:06-cv-695-WKW 

 ) 

RICHARD ALLEN, et al., ) 

) 

Defendants/Counter-Plaintiffs. ) 

___________________________________ 

 ) 

JAMES CALLAHAN, ) 

 ) 

Plaintiff/Counter-Defendant, ) 

 ) 

v. ) Case No. 2:06-cv-919-WKW 

 ) 

RICHARD ALLEN, et al., ) 

) 

Defendants/Counter-Plaintiffs. ) 

 

PLAINTIFF CALLAHAN’S SUPPLEMENTAL MEMORANDUM OF LAW 

IN SUPPORT OF HIS MOTION FOR STAY OF EXECUTION

 In further support of his Motion for Stay of Execution (Doc. 147), Plaintiff JAMES 

HARVEY CALLAHAN submits the following: 

 On December 5, 2007, the United States Supreme Court stayed Alabama’s execution of 

Tommy Arthur, pending the disposition of his petition for a writ of certiorari to the Eleventh 

Circuit Court of Appeals decision affirming, on grounds of laches, the dismissal of his action 

under 42 U.S.C. § 1983 challenging Alabama’s method of execution by lethal injection. Arthur 

v. Allen, No. 07-0342-WS-C, 2007 WL 2320069 (S.D. Ala. Aug. 10, 2007), aff’d No. 07-13929, 

2007 WL 2709942 (11th Cir. Sept. 17, 2007), stay granted pending disposition of petition for 

writ of certiorari ___ S. Ct. ___, No. 07395, 2007 WL 4248619 (Dec. 5, 2007). The Supreme 

Court granted Arthur a stay of execution even though the Eleventh Circuit held that Arthur had 

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unreasonably delayed in filing his action by waiting nine months after the Eleventh Circuit 

denied relief in his federal habeas action. Arthur, 2007 WL 2709942, at *4. 

Arthur’s stay of execution is the latest reprieve granted by the Supreme Court since 

granting certiorari in Baze v. Rees, 128 S. Ct. 34 (2007). As this Court is aware, Baze concerns a 

challenge to Kentucky’s lethal injection protocol, which uses the same three-drug cocktail for 

lethal injection as Alabama. The Supreme Court’s order in Arthur affirms a post-Baze practice 

of granting stays of execution by lethal injection. In every lethal injection case that has come 

before it post-Baze, except one where the execution was scheduled for the same day that Baze

was issued, the Court has either granted, or refused to vacate, a stay of execution. See Motion 

for Stay of Execution, Doc. 147 at 2. Since Baze, there have been no executions by lethal 

injection in the United States.

 The Supreme Court’s message to lower courts is unambiguous: executions should be 

postponed until Baze is resolved. Indeed, now that the Court has stayed the execution of an 

Alabama inmate challenging the same Execution Procedures as Mr. Callahan, there can be no 

lingering doubt that Mr. Callahan’s execution should be stayed until Baze is decided and 

subsequent proceedings, guided by the decision in Baze, are completed. 

For the foregoing reasons and the reasons detailed in Mr. Callahan’s Motion for Stay of 

Execution, plaintiff respectfully requests that this Court grant (i) injunctive relief and stay Mr. 

Callahan’s execution, and (ii) such further other relief as the Court deems warranted. If for any 

reason a stay is denied, Mr. Callahan requests an expedited evidentiary hearing, though he 

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contends that such a procedure would deprive him of due process under the circumstances. 

Date: December 10, 2007 /s/ Vincent R. FitzPatrick, Jr. 

 VINCENT R. FITZPATRICK, JR. 

 HEATHER K. MCDEVITT 

 STEPHANIE COHEN 

 Bar Numbers (SDNY): VF2907; HM9973; SM7006 

 

 White & Case LLP 

 1155 Avenue of the Americas 

 New York, NY 10036 

 Telephone: (212) 819-8200 

 Facsimile: (212) 354-8113 

 vfitzpatrick@whitecase.com 

 hmcdevitt@whitecase.com 

 stephcohen@whitecase.com 

 

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NEWYORK 6392191 (2K) 

CERTIFICATE OF SERVICE

I certify that on December 10, 2007, a copy of the foregoing was filed electronically with 

the Clerk of the Court using the CM/ECF system which will send notification of such filing to 

the following: J. Clayton Crenshaw, James W. Davis, Jasper B. Roberts and Corey L. Maze. 

/s/ Stephanie Cohen___________ 

STEPHANIE COHEN 

Bar Number (SDNY): SM7006 

White & Case LLP 

1155 Avenue of the Americas 

New York, NY 10036 

Telephone: (212) 819-8200 

Facsimile: (212) 354-8113 

stephcohen@whitecase.com 

Counsel for Plaintiffs 

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