By Julietta Bisharyan and Linh Nguyen
TERRE HAUTE, IN – Orlando Cordia Hall, who has been sentenced to die – within weeks – for kidnapping and raping a 16-year-old high school student, has filed his third federal habeas petition to appeal one of his convictions.
In September 1994, Hall and several others ran a marijuana trafficking operation out of Pine Bluff, Arkansas. Following a failed drug transaction involving $4,700, Hall and his accomplices went to the home of a man they believed had reneged on the deal in Arlington, Texas.
Lisa Rene, the man’s 16-year-old sister, answered the door. At that point, Hall and his accomplices kidnapped her at gunpoint, and Hall allegedly raped her in the car.
She was later driven to a motel in Arkansas, where they raped her several more times. Hall and his accomplices then took her to a park where they had dug a grave. There, they beat her over the head with a shovel, soaked her with gasoline and buried her body alive.
A year later, a jury convicted Hall of four federal crimes, including kidnapping resulting in death, conspiracy to commit kidnapping, traveling interstate to distribute drugs and carrying a firearm during a crime of violence, and sentenced him to death.
His initial round of collateral challenges failed nearly 15 years ago.
In 2006, Hall received a preliminary injunction from a federal district court in Washington, D.C., based on his challenge to the then-existing federal lethal-injection protocol. The injunction 
was vacated by the district court on Sept. 20, 2020, making Hall the only child murderer on federal death row eligible for execution but not subject to a stay or injunction.
Hall’s execution is scheduled for Nov. 19 – about two weeks from now – at U.S. Penitentiary Terre Haute, Indiana.
His petition, however, challenges his yet-unserved 60-month sentence for carrying and using a firearm during a crime of violence. Hall argues that kidnapping resulting in death does not predicate “crime of violence” to support a conviction for misconduct involving the firearm.
James C. Ho, who serves as a United States Circuit Judge of the United States Court of Appeals for the Fifth Circuit, disagrees with Hall’s challenge in a motion to consider Hall’s application.
Ho argues that there are two ways for the Government to establish a “crime of violence” under Hall’s challenged conviction.
A “crime of violence” covers any offense that has “an element the use, attempted use, or threatened use of physical force against the person or property of another” (elements clause), or that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” more commonly known as a residual clause.
The Supreme Court has already held the residual clause to be unconstitutionally vague in Davis v. United States. In other words, Hall’s petition would ask the court to apply the Davis case retroactively to his case.
Ho also aims to prove that the Davis case left intact the elements clause of Hall’s challenged conviction, and the crime of kidnapping resulting in death falls within the elements clause.
To satisfy the elements clause, a crime of violence must have, as a required element, “the use… of physical force,” defined by the Supreme Court as, “force capable of causing physical pain or injury to another person.”
Ho, as well as the Eighth Circuit, concluded that “kidnapping resulting in death” has as an element “the use… of physical force,” as it does not limit it to the intentional or knowing use of force.
Ho does note, however, that the decision made by the Eighth Circuit was not unanimous.
Judge David Stras of the Eighth Circuit dissented, saying, “[s]uppose that an individual gets in a car with a person impersonating an Uber driver and dies, either in a tragic car accident caused by the driver’s recklessness or by jumping out after discovering the driver’s true identity. Both scenarios qualify as kidnapping… and each ‘results’ in death. And critically, neither involves the use of force.”
In response, Judge Steven Colloton argued that, “If a kidnapper inveigles a victim into his car and then causes her death by recklessly crashing the vehicle or prompting the victim to flee from the speeding car, the kidnapper’s offense involves the use of force against the victim.”
In other words, the defendant uses force by keeping the victim against her will, which creates a serious risk of death by trying to break free.
As a result, Ho states, Hall’s challenge to his conviction fails.
“It has been over two decades since Hall was sentenced to death for the brutal killing of an innocent 16-year-old,” Ho’s motion reads. “His conviction has been repeatedly affirmed on appeal, under both direct review and following multiple habeas petitions. It is time—indeed, long past time—for these proceedings to end. Hall’s request for authorization to proceed on his successive habeas petition is denied.”
Circuit Judge James L. Dennis dissented. Dennis believed that the majority’s conclusion was erroneous “by concocting a far more onerous requirement for authorization than the statutorily-mandated prima facie standard and thus erects an unprecedented barrier to authorization.”
Second, Dennis found that the majority “advances an eccentric reading” of the provision governing the requirements for authorization. Their interpretation of the provision was contrary to the circuit precedent and to the holdings of every other circuit court.
Dennis said that he would grant the motion for authorization to file a habeas petition.
To receive authorization to file a successive petition, Hall must make a “prima facie” showing that his claim relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”
The provision that governs Hall’s authorization to file a habeas petition requires that a movant rely on a “new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.”
In Hall’s case, he claims that his conviction for carrying a firearm during the crime is invalid under the Supreme Court’s recent decision.
In Teague v. Lane (1989), the Supreme Court announced two types of rules that should be applied retroactively to cases on collateral review: substantive rules of constitutional law (the first Teague exception) and watershed rules of criminal procedure (the second Teague exception). This case applies the first Teague exception.
In 2001, Supreme Court Justice Sandra Day O’Connor noted that the Court in Teague determined that “a new rule should be applied retroactively if it places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.”
This means that whenever the Supreme Court announces a substantive rule, that rule “necessarily” has been made retroactive by the Court.
For those reasons, Dennis believes that Hall can make “a sufficient showing of possible merit” to file the habeas petition based on the Teague exception.
However, in order to file the petition, Hall must first make a “prima facie.” The majority precluded Hall from making the “prima facie” because of his crime and conviction, which Dennis disagreed with because the federal kidnapping offense does not satisfy the provision’s clause.
“In short, it is conceivable that a particular kidnapping by inveiglement resulting in unintended death might not satisfy the elements clause but instead could be found to constitute a [crime of violence], which the Supreme Court declared unconstitutionally vague,” Dennis wrote.
The Eight Circuit Court held that kidnapping resulting in death necessarily involves the use of force because the act of kidnapping involves reckless disregard for human life and when the kidnapping results in a victim’s death, “the perpetrator’s mental state is sufficient to show that he necessarily ‘used’ force against the victim.”
Dennis finds this reasoning faulty because kidnapping does not necessitate the use of force.
“The realistic probability test is a judge-made rule designed by a badly fractured court of appeals to legalistically but illogically fit more state offenses into federal generic offense definitions to enhance punishments,” he wrote.
“For these reasons, I would hold that Hall has made a ‘sufficient showing of possible merit to warrant a fuller exploration by the district court’ and would therefore grant him authorization to file a successive habeas petition,” Dennis concluded. “Because the majority errs in denying authorization, I respectfully dissent.”
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