IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

STATE OF OKLAHOMA,

JOHN M. O’CONNOR, in his official 

capacity as Attorney General of Oklahoma, and

STEVE KUNZWEILER, in his official 

capacity as District Attorney for District 14 of 

Oklahoma (Tulsa County)

Plaintiffs,

v.

HERIBERTO TELLEZ, in both his official 

capacity as Regional Director of the South 

Central Region of the Federal Bureau of Prisons, 

and his individual capacity, 

COLETTE S. PETERS, in both her official 

capacity as Director of the Federal Bureau of 

Prisons, and her individual capacity,

S.R. GRANT, in both his official capacity as 

Acting Complex Warden of FCC Pollock, and 

his individual capacity, and 

FEDERAL BUREAU OF PRISONS,

Defendants.

Civil Action No: 7:22-cv-00108-O

REPLY BRIEF IN SUPPORT OF 

PLAINTIFFS’ MOTION FOR A WRIT OF HABEAS CORPUS OR, IN THE 

ALTERNATIVE, A TEMPORARY RESTRAINING ORDER/PRELIMINARY 

INJUNCTION

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Defendants’ entire response to Plaintiffs’ habeas corpus and ultra vires claims can be boiled 

down to one argument: 18 U.S.C. § 3623 imposes no constraints at all on the federal executive branch.

From beginning to end, their brief is full of erroneous reasons why, in one way or another, the clear

language of that statute can be ignored, put aside, or stripped of any real meaning or effect.

They repeatedly tell this Court, for instance, that what matters here is the old rule of “comity.” 

Defs’ Br. at 2–3, 10, 17, 20. But Congress has spoken; § 3623 is law. And Defendants are clearly 

violating that law by denying the transfer of Hanson to Oklahoma on the spurious ground that his 

execution is not in the public interest. Defendants cannot overcome congressional text by referring to 

comity, or anything else extra-textual. The Supreme Court has long contemplated, after all, that

injunctive relief may be obtained against executive officials if their actions are “not within the officer’s 

statutory powers.” Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 702 (1949) (emphasis added).

At times, Defendants barely hide their view that § 3623 is meaningless. Take § 3263’s emphasis 

on the “public interest.” Defendants claim this often-adjudicated interest has “no objective standards.” 

Defs’ Br. at 13. For support, however, Defendants rely solely upon one “Cf.” case that does not 

mention the public interest. Meanwhile, Defendants ignore the numerous authorities in Plaintiffs’

opening brief showing that the “public interest” is a defined legal term that clearly favors the timely 

completion of a death sentence. See, e.g., Pls’ Br. at 8–10. 

Section 3623 cannot be ignored or downplayed when the federal government decides that it 

wants to shield Mary Bowles’ murderer from justice. Perhaps recognizing the troubling nature of their 

position, Defendants make the brazen claim that “no [Bureau of Prisons (“BOP”)] decisionmaker has 

referenced the death penalty in connection with the requested transfer.” Defs’ Br. at 19. This is false. 

Defendant Tellez expressly stated that Hanson’s “transfer to state authorities for state execution is 

not in the public interest.” Doc. 1-3 (emphasis added). Defendants’ counsel cannot avoid the 

statements of their clients or the obvious import of Defendants’ decision. An injunction is warranted.

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ARGUMENT

I. Plaintiffs will likely succeed on their ultra vires claim, so an injunction should issue.

Defendants are at their weakest in refuting Plaintiffs’ ultra vires claim grounded on § 3623. 

Their eagerness to avoid discussing the public interest at issue is quite telling. See, e.g., Defs’ Br. at 18. 

Buried near the end of the response is Defendants’ only substantive public interest argument, where 

they assert that the public interest disfavors transfer here because of “BOP’s general practice of 

effectuating transfers . . . within the last 90 days of the inmate’s final release.” Id. at 19. They provide 

no citation for why “BOP’s general practice” is a “public interest.” See id. Indeed, they even admit they 

are furthering “BOP’s legitimate interest,” id. (emphasis added), without engaging with the argument 

that BOP’s parochial interests here are not the public’s interests, Pls’ Br. at 14. They also provide no 

response to Plaintiffs’ multiple Fifth and Eleventh Circuit citations explaining that the public interest 

clearly favors the timely completion of a death sentence. Compare Defs’ Br. at 19, with Pls’ Br. at 8–9.

Defendants’ citation-free or self-citing assertions of public interest are hardly an adequate response 

to the consensus of the courts and Congress on the clear public interest at issue here.

Defendants also resort to denying that Defendant Tellez referenced the death penalty in his 

decision statement, Defs’ Br. at 19, when he clearly did, Doc. 1-3. Stated differently, Plaintiffs did not 

mischaracterize Defendants’ position when saying Defendants “decid[ed] that the timely completion 

of the death penalty is not in the public interest,” Defs’ Br. at 18, because Director Tellez said that very 

thing, Doc. 1-3. Indeed, it is undeniable that Defendants have decided on “commuting a death penalty 

sentence to life imprisonment,” Defs’ Br. at 18, because they will only transfer Hanson “within the 

last 90 days of the inmate’s satisfaction of the Federal sentence” of life imprisonment, Doc. 1-3. To 

agree with Defendants is to commute Hanson’s sentence, no matter how Defendants try to spin it.

Rather than defending their “public interest” decision, Defendants resort to asserting that their 

unlawful decision is unreviewable. They advance three primary arguments: (1) that ultra vires does not 

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pierce sovereign immunity in this context; (2) that their acts cannot be ultra vires if Hanson is still in 

their custody; and (3) that the transfer statute is a pure matter of discretion. Each argument fails.

First, Defendants do not and cannot contest that a proper ultra vires action pierces sovereign 

immunity. See Defs’ Br. at 13–14 (noting “the ultra vires exception to sovereign immunity”). They 

correctly observe that ultra vires claims cannot be raised where Congress has foreclosed all judicial 

review. See Defs’ Br at 13. But as the D.C. Circuit has held, congressional foreclosure of APA review 

alone—without foreclosure of all judicial review—indicates that ultra vires claims are the appropriate 

mechanism for relief. See Aid Ass’n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1173, 1178 (D.C. Cir. 

2003); Chamber of Commerce v. Reich, 74 F.3d 1322, 1327–28 (D.C. Cir. 1996). Armstrong simply adds that 

in addition to foreclosing all judicial review, Congress can foreclose ultra vires review either by providing 

an “express provision of one method of enforc[ement] or by using “judicially unadministrable” 

standards. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 328 (2015). Defendants cite the express 

provision rule, but they do not claim there is an express enforcement provision in § 3623, see Defs’ Br 

at 13, because it does not exist. Defendants do claim that the public interest has “no objective 

standards,” Defs’ Br. at 13, but offer no real citation for that argument. They also fail to refute the 

extensive citations in Plaintiffs’ brief showing that the public interest is judicially administrable. See

Pls’ Br. at 8–10. Thus, neither of Armstrong’s avenues for foreclosing relief defeats review here.

Because ultra vires review is available, Defendants fall back on claiming any error here is a 

“routine error” that does not amount to an ultra vires act piercing sovereign immunity. Defs’ Br. at 14. 

But flagrantly exceeding congressional limitations in a way that allows a convicted murderer to escape 

a valid death sentence is hardly a “routine error.” Executive officials are subject to ultra vires review 

when they act “in excess of jurisdiction,” Aid Ass’n for Lutherans, 321 F.3d at 1173, or when the act at 

issue is “not within the officer’s statutory powers.” Larson, 337 U.S. at 702. Defendants do not dispute 

that the “shall order” language in § 3623 indicates a constraint on authority not present in other 

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statutes. Pls’ Br. at 7–8. Indeed, they find the “shall” in the more general statute of 18 U.S.C. § 3621 

informative, Defs’ Br. at 17, but they do not address the “shall” in the more specific statute of § 3623

at all. They also cannot dispute that § 3623 addresses the “public interest.” Thus, Defendants’ 

arguments about routine error are, at their core, another assertion that the statute is no obstacle to

unfettered discretion. If the statute has limits—and it does—then Defendants’ acts here are ultra vires.

Put differently, in a case cited by Defendants, the D.C. Circuit stated that an agency act is ultra 

vires if it transgresses “‘clear and mandatory’ limits that Congress has imposed on [the agency’s] 

authority.” Defs’ Br. at 15 (quoting Changji Esquel Textile Co. v. Raimondo, 40 F. 4th 716, 725 (D.C. Cir. 

2022)). That is exactly what happened here. The public interest in the death penalty is clear, and the 

word “shall” in § 3623 denotes a mandatory duty. See Pls’ Br. at 11. Defendants ignore this and simply 

claim the old comity rule applies without explaining why the statute should not be given effect.

In one of their only textual arguments, Defendants argue that because the Director makes a 

finding regarding public interest, the “entire” decision is within his discretion. See Defs’ Br. at 14. To 

be sure, Plaintiffs acknowledge there may be discretion where the public interest is debatable. But in 

the death penalty context, the public interest is beyond clear. See Pls’ Br. at 11–12. That the Director 

must make a determination of the “public interest” does not mean the term may be freely redefined

to include its opposite—rather, the Director may only recognize what the public interest is. The 

deliberate use of the term “public interest” is, itself, a constraint on agency discretion that is reviewable 

in extraordinary circumstances where the defined term leaves no discretion.

Plaintiffs are not effectively seeking the standards of APA review, contra Defs’ Br at 14–15, 

because there is a very limited universe of cases where the public interest indisputably favors one 

outcome. That view is consistent with legislative materials indicating that the public interest 

determinations would be reviewable in extraordinary circumstances and that Congress’s decision was to 

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foreclose only APA review, not all review. See Pls’ Br. at 2 n.1.1 In contrast, Defendants’ interpretation 

imagines Congress wrote no statute at all. See, e.g., Defs’ Br. at 17 (claiming the statute grants “broad 

discretion” and is “[f]ar from a limitation on the discretion of executive branch officials” (internal 

quotation marks omitted)). For example, Defendants’ argument that § 3623 is only “conceivably” 

violated when a prisoner is actually released, Defs’ Br. at 17, is just another way of saying the executive 

branch’s decision-making is untouchable. Claims are unreviewable before release and moot afterward, 

under this approach. If the statute has any meaning or any application, then it must constrain executive 

action that clearly violates the public interest while the prisoner is still in custody.

Second, contrary to their claims, Defendants can commit an ultra vires violation of § 3623 even 

if Hanson is still in their custody. Contra Defs’ Br. at 16–17. Defendants assert that primary jurisdiction 

entitles them to keep Hanson perpetually because the statute does not say when prior to his release the 

transfer must occur. See Defs’ Br. at 16. Again, this argument is just another attempt to pretend the 

statute does not constrain the agency at all. The reference to primary jurisdiction fails to rebut 

Plaintiffs’ point in the opening brief that no transfer request is even needed unless the federal 

government has primary jurisdiction. See Pls’ Br. at 12. To say primary jurisdiction alone can defeat a 

mandatory transfer under § 3623 is to say that § 3623 is able to be nullified by the federal government 

in every relevant potential application, without exception. This argument proves too much.

Furthermore, because the public interest is timely enforcement of a state’s valid death sentence, 

the public interest test does impose time constraints. Defendants deny that they are deciding the public 

interest favors commuting Hanson’s sentence, Defs’ Br. at 18, but their claim that they can delay 

releasing him until the last 90 days of a life sentence cannot be construed as meaning anything else, 

1 Plaintiffs have argued that Congress recognized the availability of review in extraordinary 

circumstances amounting to abuse of discretion. This is merely a description of ultra vires review pulled 

from Little v. Swenson, 282 F.Supp. 333, 337 (W.D. Mo. 1968), not a claim that the facts of Little

somehow control here. Compare Defs’ Br. at 14, with Pls’ Br. at 2 n.1.

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see Pls’ Br. at 13. Because Congress’s choice to use the term “public interest” imposes a clear constraint 

on executive officials, that constraint must be able to be effectuated in the form of a timely transfer.

Halfheartedly, Defendants assert that the statute still has meaning even if it has no deadline 

and even if the term “public interest” is irrelevant and unknowable because § 3623 “creates an orderly 

procedure for transferring a qualifying prisoner to State custody upon completion of his federal 

sentence.” Defs’ Br. at 18. This argument is easily rejected because there is already a less burdensome 

approach for such transfers: detainers, where a staff member in a state department of corrections 

sends what is effectively a letter to BOP. In Defendants’ view, a request from an executive officer 

attaching a certified judgment under § 3623 requires no more of Defendants than does a detainer 

from a state staff member. Therefore, Defendants’ argument treats the supposed “orderly procedure” 

found in § 3623 as entirely superfluous to the preexisting detainer process based solely on comity.

Such an interpretation nullifies the transfer statute and underscores Defendants’ interpretive error.

Third, § 3623 cannot be read as a grant of pure and untouchable discretion. Defendants rely 

on the statute’s terminology that “if ... the Director finds,” Defs’ Br. at 18, as if that phrasing 

somehow means Congress’s deployment of the term “public interest” was just an afterthought. If 

Congress had wanted to leave total discretion to determine what the public interest is with the 

Director, however, it could have written “if the Director so chooses,” omitted “public interest,” or 

just declined to enact the statute and relied on comity and detainers. Instead, Congress constrained 

the Director’s discretion to the public interest, which is especially clear in the death penalty context.

Defendants ultimately chafe at straightforward statutory constraints on their discretion, and 

their efforts to exceed those constraints are exactly the type of extraordinary behavior that an ultra 

vires claim remedies. Congress stated that the executive “shall order” transfers that are in the “public 

interest,” and Defendants have no authority to evade that interest in ordering transfers. The attempt

here to assert power beyond their statutory authority should be enjoined.

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II. Plaintiffs will likely succeed on their habeas claim, so relief should issue.

Regarding habeas, Defendants raise an interesting venue question, while inadvertently 

explaining exactly why venue lies in the Northern District of Texas in their own brief. Defendants’

central venue argument on Count I is that the habeas claim is subject to territorial jurisdiction limits. 

Defs’ Br. at 6.2 But what Defendants fail to note is that although the Supreme Court has said that 

§ 2241(a) imposes territorial limits on “core” habeas challenges, it does not impose those same 

territorial limits on non-core claims. See Rumsfeld v. Padilla, 542 U.S. 426, 444 (2004); see also id. at 453–

54 (Kennedy, J., concurring). Thus, the question of whether venue for Count I must lie in Louisiana 

depends on whether this is a “core challenge.” It is not, and Plaintiffs’ habeas claim will likely succeed.

Under Padilla, Plaintiffs’ habeas claims fall outside what is traditionally considered the core of 

habeas. As Defendants highlight, no core claim is at issue: “Plaintiffs do not dispute that Hanson was 

lawfully convicted in a federal court (in the Northern District of Oklahoma) and sentenced to spend 

the rest of his life in prison.” Defs’ Br. at 9. “Plaintiffs do not suggest that this conviction has been 

overturned or invalidated.” Id. Plaintiffs do not “claim that Hanson’s federal sentence has expired such 

that he ought to be released.” Id. Defendants’ statements demonstrate precisely why Plaintiffs’ claim 

is not within the “core” of habeas.

Put another way, Plaintiffs’ claim is not a core habeas claim because the inmate will not be 

released from all confinement or custody if the claim succeeds. See Padilla, 542 U.S. at 441 (noting that 

the “traditional core of the Great Writ” is “at bottom a simple challenge to physical custody”). Indeed, 

a good example of a non-core claim is one brought by a sovereign against another sovereign—a 

challenge that is not “simple” or common because it will not result in the release of the prisoner: the 

basis for Padilla’s focus on the immediate custodian. Defendants imply that such claims do not exist

2 Notably, Defendants’ pending venue motion does not involve Count I. See Doc. 10 at 1 

(seeking to “transfer Counts II and III”).

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but admit in a contrary footnote that such claims do exist. Compare Defs’ Br. at 8, with id. at n.4. No 

one contends that sovereign habeas claims under 28 U.S.C. § 2241(c)(5) are subject to any of the usual 

limitations for core prisoner habeas claims because they are not brought on behalf of the prisoner. 

Defendants offer no textual reason that the prisoner limitations that do not apply to a state habeas 

claim under § 2241(c)(5) suddenly attach under § 2241(c)(3). Similarly, Plaintiffs are aware of no reason 

that a § 2241(c)(3) motion is a core habeas motion but a § 2241(c)(5) motion is not, and Defendants 

have offered no explanation for this. Thus, Plaintiffs correctly proceeded without the prisoner venue 

restrictions under § 2241(c)(3) just as they would proceed under § 2241(c)(5).

Indeed, to uniquely single out a § 2241(c)(3) action brought by a sovereign state as a core claim 

here would take the notion of nominal defendants to an extreme. An action in habeas by a state is 

only cognizable where a state has an injury, and one of the few instances where such injury would 

occur are in facts like this case. Plaintiffs take the unremarkable view that because Warden Grant 

indicated their transfer request was denied by the Designation and Sentence Computation Center 

(“DSCC”) in the Northern District of Texas, see Doc. 1-1, and not the Warden in Louisiana, id., the 

proper place to bring the habeas claim is against the relevant official in Texas as opposed to the letterwriter in Louisiana. This interpretation does not open the habeas claim to multiple districts, as the 

relevant decisionmakers are all in one district. If Plaintiffs had actually sued the Warden in Louisiana, 

he could presumably argue that he is not violating a law of the United States because he made no 

determination about the transfer or the public interest. No matter where Plaintiffs filed, the executive 

could play a shell game that would serve no purpose other than to allow the unlawful custody to persist 

without a determination on the merits.

Without the restrictions for core habeas claims, “the question of the proper location for a 

habeas petition is best understood as a question of personal jurisdiction or venue.” Rumsfeld v. Padilla, 

542 U.S. at 451 (Kennedy, J., concurring). Director Tellez cannot dispute that he is subject to personal 

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jurisdiction and venue in the Northern District of Texas because he resides here. Likewise, Warden 

Grant cannot dispute that he is subject to personal jurisdiction or venue here because he stated that 

“[t]he [DSCC] has denied the request for transfer,” not him, Doc. 1-1. Because the DSCC is in Director 

Tellez’s regional office in Texas, Warden Grant cannot deny he has contacts sufficient for personal 

jurisdiction or that there is a proper co-defendant who resides here in the Northern District of Texas.

Beyond the venue argument, Defendants have no real answer to the habeas claim—indeed, 

strangely, their habeas arguments barely acknowledge the law the claim is based on: § 3623. Defendants 

resort to their primary jurisdiction argument without engaging with the opening brief ’s arguments on 

that point at all. See Defs’ Br. at 9–10. As Plaintiffs indicated in their initial brief, Congress restricted 

primary jurisdiction by requiring transfers in the public interest, and indeed the transfer statute only 

applies when primary jurisdiction exists. See Pls’ Br. at 12. By arguing that Plaintiffs are challenging 

primary jurisdiction, Defendants are simply repeating the same errant arguments.

Otherwise, aside from their general position that the transfer statute is meaningless, see supra

Part I, Defendants have no real argument to deny that they have Hanson in custody in violation of 

18 U.S.C. § 3623, a law of the United States. They concede that states can bring habeas claims under 

28 U.S.C. § 2241. Defs’ Br. at 8 n.4. They claim that no case law authorizes suits under § 2241(c)(3), 

id. at 9, but given their concession that case law authorizes suits under § 2241, their failure to point to 

anything in the statute that limits state claims to § 2241(c)(5) is fatal. Presumably, no State plaintiff 

habeas suit has apparently cited that particular subsection of § 2241 because standing would limit such

State claims, but there is no dispute that Plaintiffs have standing here. At bottom, Plaintiffs have 

standing and a statute that authorizes their claim, and Defendants have cited nothing to deny the clear 

application of the statute. Accordingly, in addition to the injunction on the ultra vires claim, an 

injunction or writ is warranted on this non-core habeas claim, too.

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III. Defendants fail to respond to the opening brief on the remaining factors. 

Defendants’ brief is particularly incredible when it reaches the remaining equity factors, as 

Defendants deny that there is any irreparable injury from the delay of a death sentence and further 

assert that Plaintiffs provided no reasons or authority that such delay is an injury. Defs’ Br. at 19–20. 

But the answers and authorities in the opening brief are extensive. See, e.g., Pls’ Br. at 8–9. Indeed, the 

clearest binding answer is found in the Calderon citation on page 9 of Plaintiffs’ opening brief:

A State’s interests in finality are compelling when a federal court of appeals issues a 

mandate denying federal habeas relief. At that point, having in all likelihood borne for 

years “the significant costs of federal habeas review,” the State is entitled to the 

assurance of finality. When lengthy federal proceedings have run their course and a 

mandate denying relief has issued, finality acquires an added moral dimension. Only 

with an assurance of real finality can the State execute its moral judgment in a case. 

Only with real finality can the victims of crime move forward knowing the moral 

judgment will be carried out. To unsettle these expectations is to inflict a profound 

injury to the “powerful and legitimate interest in punishing the guilty,” an 

interest shared by the State and the victims of crime alike. 

Calderon v. Thompson, 523 U.S. 538, 556 (1998) (emphases added) (internal citations omitted). 

Defendants’ argument that the delay for federal habeas review authorizes more delay here, Defs’ Br. 

at 20, is plainly contradicted by Calderon and by the eight other authorities cited in the opening brief, 

Pls’ Br. at 9. The compelling interest attaches after “direct appeal and post-conviction remedies” Id. 

(citing Bowles v. DeSantis, 934 F.3d 1230, 1248 (11th Cir. 2019)). Defendants’ contrary claim is frivolous. 

Defendants’ brazen approach to delaying a death sentence only confirms that their true goal 

here is to harm the state and the public by advancing a political agenda or the inmate’s interests in 

delay or commutation of a death penalty sentence. They openly advocate delay of the death sentence, 

Defs’ Br. at 2, 19–20, and gratuitously discuss problems with Oklahoma’s execution process under a 

different protocol and different staff many years ago, Defs’ Br. at 4. In short, Defendants seek to 

inflict great harm on the public interest, and especially on Mary Bowles and her family, by commuting

a death sentence. Equity disfavors harming the State and the public, especially in a case that turns 

entirely on the “public interest” in timely executions. An injunction is warranted. 

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November 2, 2022 Respectfully submitted,

/s/ John C. Sullivan

John C. Sullivan

S|L LAW PLLC

Texas Bar Number: 24083920

610 Uptown Blvd., Suite 2000

Cedar Hill, TX 75104

Phone: (469) 523-1351

Facsimile: (469) 613-0891

john.sullivan@the-sl-lawfirm.com

Bryan Cleveland

 Chief, Reserved Powers Protection Unit

Will Flanagan

 Assistant Solicitor General

OKLAHOMA ATTORNEY GENERAL’S OFFICE

313 NE 21st Street

Oklahoma City, OK 73105

Phone: (405) 521-3921

bryan.cleveland@oag.ok.gov

Counsel for Plaintiffs

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CERTIFICATE OF SERVICE

I hereby certify that the undersigned document was served on all parties who have appeared 

in the case electronically via ECF on November 2, 2022, or by another manner authorized by Fed. R. 

Civ. P. 5(b)(2).

/s/ John C. Sullivan

John C. Sullivan

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