Page:Johnson v. Missouri, Jackson dissent.pdf/1

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The application for stay of execution of sentence of death presented to JUSTICE KAVANAUGH and by him referred to the Court is denied.

JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, dissenting from denial of application for stay.

We denied Kevin Johnson’s application for an emergency stay of his execution on November 29, 2022, and the State of Missouri has carried out that penalty. Now, one day later, I write to explain my vote to grant his stay request. For the reasons that follow, in my view, there was a likelihood that Johnson would have succeeded on the merits of his federal due process claim, and it was clear that he would (and obviously did) suffer irreparable harm absent a stay. I also believe that the equities weighed in Johnson’s favor.

Missouri has created a system in which prosecutors may assess the validity of a state prisoner’s final conviction, see Mo. Rev. Stat. §547.031 (Cum. Supp. 2021), and having done so, it was required to comply with due process when applying that law in Johnson’s case. See District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 69 (2009); Hicks v. Oklahoma, 447 U. S. 343, 346 (1980); Wolff v. McDonnell, 418 U. S. 539, 556–557 (1974). In rare cases, a litigant can credibly claim that a State’s erroneous interpretation of, or refusal to comply with, its own law can amount to a federal due process violation. See Skinner v.