EMERGENCY PETITION FOR STAY OF PROCEEDINGS AND STAY OF EXECUTION DEATH WARRANT SIGNED AND EXECUTION SCHEDULED FEBRUARY 26, 2015 AT 6:00 P.M.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO JERRY WILLIAM CORRELL, Appellant, v. State of Florida, Appellee. ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, STATE OF FLORIDA Lower Tribunal No. 85-CF-3550 EMERGENCY PETITION FOR STAY OF PROCEEDINGS AND STAY OF EXECUTION DEATH WARRANT SIGNED AND EXECUTION SCHEDULED FEBRUARY 26, 2015 AT 6:00 P.M. Raheela Ahmed Florida Bar Number Maria Christine Perinetti Florida Bar Number Donna Ellen Venable Florida Bar Number Assistant CCRCs Law Office of the Capital Collateral Regional Counsel-Middle Region 3801 Corporex Park Drive, Suite 210 Tampa, Florida Telephone (813) Fax No. (813) Secondary

2 PRELIMINARY STATEMENT COMES NOW the Defendant, Jerry William Correll ( Correll ), by and through undersigned counsel, and moves this Court to grant a stay of execution based on recent evidence of substantial harm revealed by botched executions in Arizona, Ohio, and Oklahoma; the questionable efficacy of the drug midazolam, administered to sedate individuals undergoing lethal injection in Florida; and the recent decision by the Supreme Court of the United States to grant certiorari in Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct., 2015 WL (Jan. 23, 2015) (No ), which was followed by the Supreme Court of the United States subsequent granting of a stay of execution for petitioners Glossip, Grant, and Cole. A stay of execution is mandated where the Supreme Court of the United States forthcoming decision will impact the constitutionality of Correll s execution at the hands of this state. Correll will suffer great harm if this Court does not stay his execution. See Wainwright v. Booker, 473 U.S. 935, 936, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985) (Mem.) (Powell, J., concurring) (irreparable harm that will result if stay is not granted is necessarily present in capital cases ). If Florida is permitted to execute Correll before the constitutionality of Oklahoma s three-drug lethal injection protocol, which calls for the exact same 500 mg. dose of midazolam as Florida, has been fully reviewed by the courts, the effects are irreversible. The execution would violate Correll s 1

3 constitutional rights, causing him to die a slow death by asphyxiation, while being subjected to burning and intense pain. See Baze v. Rees, 553 U.S. 35, 49, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008) (plurality opinion). 2

4 STATEMENT AS TO CORRELL S POST-CONVICTION PROCEEDINGS & THE PROCEEDINGS IN GLOSSIP On Friday, January 16, 2015, Governor Rick Scott of the State of Florida signed a Death Warrant under the seal of this state and scheduled a date of execution for Thursday, February 26, 2015, at 6:00 pm. See Appendix A. This Court issued a Scheduling Order on Tuesday, January 20, 2015, ordering that [a]ll proceedings pending in the trial court, if any, shall be completed and orders entered by 4:00 p.m., Thursday, January 29, In accordance with this Court s timeline, Correll filed and served postproduction requests for additional public records to the Florida Department of Corrections, the Florida Department of Law Enforcement, and the Office of the Medical Examiner, on January 21, Thereafter, Correll filed his third successive motion to vacate judgments of convictions and sentences with leave to amend requested, on January 21, The circuit court held a hearing on the additional public records requests on January 22, 2015, and denied all additional records requests that were objected to by the agencies and the State of Florida. Thereafter, the State of Florida filed its response to the motion to vacate on January 23, A Case Management Conference was scheduled for January 26, In the interim, on the afternoon of Friday, January 23, 2015, the Supreme Court of the United States granted the petitioners writ of certiorari in Glossip, 3

5 Richard E., et al. v. Gross, Kevin J., et al., S.Ct., 2015 WL (Jan. 23, 2015) (No ). See Appendix B. Since the Supreme Court of the United States did not rewrite the questions presented, it can be assumed that it will review all of the questions as laid out in the petitioners writ of certiorari. The questions raised and pertinent to the constitutionality of the execution protocol of the State of Florida which is essentially the same as in Oklahoma 1 are as follows: Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious. Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze? Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state s lethal-injection protocol, as properly administered, will violate the Eighth Amendment? Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit at i, Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct. (Jan. 1 The Oklahoma cases focus on the constitutionality of the sedative, midazolam, which is used in its three-drug execution protocol. The petitioners argued that the midazolam should not be used as an anesthetic as it is unreliable in rendering the inmate unconscious. 4

6 13, 2015) (No ). See Appendix C. At the Case Management Conference, undersigned counsel notified the circuit court and all parties that Correll would be filing a motion for a stay of execution based upon the recent grant of certiorari in Glossip. Thereafter, Correll filed an emergency motion for stay of execution based on the Supreme Court of the United States grant of certiorari in Glossip, on January 26, 2015, by noon. See Appendix D. After Correll filed his emergency for motion for stay of execution, the Office of the Attorney General for the State of Oklahoma filed an application for stays of execution of sentences of death on January 26, 2015, in Glossip. See Appendix E. In its application, the Attorney General of Oklahoma requested that the Supreme Court of the United States stay the executions of Richard E. Glossip, John M. Grant and Benjamin R. Cole until the final disposition of their appeal before the Supreme Court of the United States, or, alternatively, until the Oklahoma Department of Corrections has in its possession a viable alternative to midazolam for use in its executions 2. See Appendix E on page 4. Then, the Petitioners in Glossip filed a response in support of the respondent s application for stays of 2 It should be noted that Oklahoma Department of Corrections drug protocol allows for the use of sodium thiopental, pentobarbital or midazolam to carry out executions while Florida Department of Corrections drug protocol only allows for the sedative midazolam hydrochloride. See Appendix E on page 3; see Appendix K. 5

7 execution of sentences of death. See Appendix F. Thereafter, on January 27, 2015, the State of Florida filed a response to Correll s motion for stay. See Appendix G. The circuit court conducted a hearing on January 27, 2015, on Correll s emergency motion for stay. The circuit court allowed Correll to file an appendix of additional transcripts 3 in response to the State s appendix of exhibits. See Appendix H. The circuit court denied the motion for stay the late morning of January 28, See Appendix I. After, on January 28, 2015, the Supreme Court of the United States issued the following order and granted a stay of execution for petitioners Glossip, Grant, and Cole: Respondents application for stays of execution of sentences of death presented to Justice Sotomayor and by her referred to the Court is granted and it is hereby ordered that petitioners executions using 3 The contents of the appendix consists of the following (Doctors Lubarsky and Evans testified in Florida and Oklahoma): Appendix A. Appendix to Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit, Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct. (Jan. 13, 2015); Volumes I to III. Appendix B. Declaration of David A. Lubarsky M.D. M.B.A.in Warner v. Gross, F.3d, 2015 WL (10th Cir. Jan. 12, 2015). Appendix C. Declaration of Larry D. Sasich Pharm D. MPH, FASHP in Warner v. Gross, F.3d, 2015 WL (10th Cir. Jan. 12, 2015). Appendix D. Transcript from the Evidentiary Hearing in Chavez v. Palmer, Case No. 3:14-cv BJD-JBT (Middle District of Florida, Jacksonville Division) conducted on February 5, 2014 (testimonies of Dr. Lubarsky and Dr. Roswell Lee Evans). 6

8 midazolam are stayed pending final disposition of this case. Order Granting Stay of Execution, Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct. (Jan. 28, 2015) (No ) (emphasis added); See Appendix J. 7

9 ARGUMENT IN SUPPORT OF CORRELL S PETITON FOR STAY OF PROCEEDINGS & STAY OF EXECUTION The states of Florida and Oklahoma turned to the sedative midazolam when they no longer had access to the lethal injection combination approved by the Supreme Court of the United States in Baze. Glossip clearly demonstrates that there is substantial evidence in the scientific community that midazolam cannot reliably achieve and maintain unconsciousness such that the prisoner remains insensate during the administration of the second and third drugs. The Petitioners in Glossip argue that Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze. However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness. For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures. Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution. Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit at i, Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct. (Jan. 13, 2015) (No ) See Appendix C. Midazolam has been the subject of constitutional concerns implicating the 8

10 Eighth Amendment since states began using it as part of their lethal injection protocols, and botched executions resulted in the states of Ohio, Oklahoma, and Arizona. See State by State Lethal Injection, Death Penalty Information Center, (last visited Jan. 28, 2015). During the January 16, 2014 Ohio execution of Dennis McGuire, which used a two-drug protocol of midazolam and hydromorphone, McGuire was reported to have snorted and gasped several times and to have taken more than 15 minutes to die. 4 During the April 29, 2014 Oklahoma execution of Clayton Lockett, which used a three-drug protocol of midazolam, vecuronium bromide, and potassium chloride, Lockett writhed, gasped, and called out, Oh, man. At one point, he attempted to rise and exhaled loudly. Lockett had been declared unconscious after administration of the midazolam, and the botch was reportedly due to vein failure. 5 And, during the July 23, 2014 Arizona execution of Joseph Wood, which used a two-drug protocol of midazolam and hydromorphone, Wood gasped and struggled to breathe for nearly two hours, at which point, he finally died. One witness reported that he gasped 640 times during the execution and described his last 4 Andrew Welsh-Huggins, Executed Killer Dennis McGuire Gasped And Snorted For 15 Minutes Under New Lethal Drug Combo, HUFFINGTON POST (HUFF POST CRIME) (Jan. 16, 2014), Erik Eckholm, One Execution Botched, Oklahoma Delays the Next, THE NEW YORK TIMES (Apr. 29, 2014), 9

11 breaths as like a fish on shore gulping for air. 6 The State of Florida, in proceedings before the United States District Court for the Middle District of Florida, Jacksonville Division, admitted that it has substituted one lethal dose of an anesthetic for another, Midazolam. Transcript of Motion Hearing at 18, Jackson, Etheria v. Palmer, John et. al. No. 3:10-cv-1130-J- 32MCR, Brant, Charles v. Palmer, John et. al., No. 3:13-cv-412-J-32MCR, Abdool, Dane v. Palmer, John et. al., No. 3:13-cv-413-J-34JBT, Nixon, Joe v. v. Palmer, John et. al., No. 3:13-cv-433-J-99MMH-MCR (M.D. Fla. Nov. 2, 2013). See Appendix D at Attachment B. The State of Florida further stated as follows as to why there was a change in protocol that mirrors the constitutional concern in Oklahoma: JUDGE CORRIGAN 7 :... And, I mean, I have -- I have anecdotal reasons why, but I don't know -- why did the State change the protocol?... MR. BROWNE 8 : Your Honor, I am not privy to those - -those discussions are above my pay grade. I -- I believe it was due to availability. I could be wrong. 6 Amy Davidson, The Death Penalty Fails Again, THE NEW YORKER (July 24, 2014), The Honorable Timothy J. Corrigan, United States District Court Judge, Middle District of Florida, Jacksonville Division. 8 Assistant Attorney General Scott Browne on behalf of the State of Florida. 10

12 JUDGE CORRIGAN: Well, I mean, that's the anecdotal the anecdotal thing that you hear is that they couldn't get it anymore because the manufacturer didn't want it to be used for death penalty work. And I didn't know if the State of Florida had an official position on that. So your official position is you don't know why they did it, but they did it, and it doesn't really matter why they did it, it matters whether it's constitutional or not? MR. BROWNE: Exactly, Your Honor. And the law is clear, because Baze created a safe harbor, an anesthetic three-drug protocol, including an anesthetic -- and you don't look at a parade of horribles if -- or whenever. Human error is a possibility.... MR. BROWNE:... Midazolam --that's one of its purposes in this case. In much smaller doses, it will render you unconscious. If you went for a root canal, your dentist may administer- - JUDGE CORRIGAN: Why weren't you using it if it's so great, why weren't they using it before? Why do we go through the -- from 2007 to 2013, why weren't they using it if it's the be-all and end-all, why isn't it that then what they've been using all along? MR. BROWNE: Your Honor, I JUDGE CORRIGAN: Because what it -- you know, it makes you think that they couldn't use the one they really wanted to use, so now they're having to use something different. And so why is that the wrong way to think about it? MR. BROWNE: Well, I think -- because, you know it sounds like -- and I understand, Your Honor, you're confronted with these claims no matter what. So the notion that pentobarbital -- we had -- we had it settled, it was settled law, it's not true. Mr. Abdool and these plaintiffs filed their challenges. When we had pentobarbital, it was resolved by certain precedence, so -- but, you know, first of all, we're going to get these lawsuits. I think they're bordering on frivolous now. But, nonetheless, Your Honor, you can always find an alternative drug, an anesthetic. We had problems with availability, I believe, as an 11

13 officer of this court. We switched to a well-known anesthetic drug that we believe is available that will do the job and then some. Id. at 19-20; (emphasis added); See Appendix D at Attachment B. This was confirmed in another hearing before the United States District Court of Appeal on June 25, 2014, as follows: JUDGE HOWARD 9 : And the only reason for the change was the unavailability of the pentobarbital? MR. BROWNE: That is correct, Your Honor. Transcript of Motion Hearing at 12, Jackson, Etheria v. Palmer, John et. al. No. 3:10-cv-1130-J-32MCR, Brant, Charles v. Palmer, John et. al., No. 3:13-cv-412-J- 32MCR, Abdool, Dane v. Palmer, John et. al., No. 3:13-cv-413-J-34JBT, Nixon, Joe v. v. Palmer, John et. al., No. 3:13-cv-433-J-99MMH-MCR, Anderson, Fred v. Palmer, John et al., No. 3:13-cv-1431-J-32JBT (M.D. Fla. June 25, 2014). See Appendix D at Attachment C. The foregoing testimony from State of Florida demonstrates that Florida is faced with a strikingly similar situation to Glossip in terms of choosing midazolam because of its availability and not because of its constitutional muster under the Eighth Amendment to the Constitution of the United States. The Petitioners in Glossip ask the Supreme Court of the United States to revisit its decision in Baze v. Rees, 553 U.S. 35 (2008), because the 9 The Honorable Marcia Morales Howard, United States District Court Judge, Middle District of Florida, Jacksonville Division. 12

14 lethal-injection landscape has changed significantly in the last seven years. The three-drug formula using the barbiturate sodium thiopental as the first drug a formula that was created by an Oklahoma medical examiner in the late 1970s and reviewed by this Court in Baze is no longer being used to carry out executions in the United States. Instead, states now experiment with various drug formulations that have resulted in multiple malfunctioning executions indeed, spectacles over the past year. The bungled executions are unsurprising, because they arise from the use of midazolam, a drug that is pharmacologically unable to conform to the constitutional requirements in Baze. Thus, these new experiments have resulted in the types of unconstitutional executions that Baze was designed to prevent. Petition for Writ of Certiorari to the United States Court of Appeals for the Tenth Circuit at 2, Glossip, Richard E., et al. v. Gross, Kevin J., et al., S.Ct. (Jan. 13, 2015) (No ) (internal footnote omitted). See Appendix D. Specifically, as in Correll s current execution, Oklahoma intends to execute Petitioners by lethal injection using a three drug protocol substantially different from the one this Court reviewed in Baze. The Oklahoma protocol will begin with the administration of an intravenous injection of 500 milligrams of midazolam, followed by the administration of 100 milligrams of rocuronium bromide (a paralytic), and then 240 milliequivalents of potassium chloride (a heart-stopping agent). (Dist. Ct. ECF No ; Supp. Vol. X at 333 (Att.D-OP Chart D.) It is uncontested that administering a paralytic (such as pancuronium, vecuronium, or rocuronium bromide), and/or potassium chloride to a conscious person would cause intense and needless pain and suffering. (Dist. Ct. ECF Nos. 75, 96, 50.) Id. at 3 (internal footnote omitted) (emphasis added). Oklahoma s lethal injection protocol, upon which the Glossip writ of certiorari has been granted, is strikingly 13

15 similar to the one that will be used upon Correll. 10 When comparing the foregoing similar lethal injection procedures in Florida and Oklahoma, it is absolutely certain that the decision of the Supreme Court of the United States in Glossip as to the constitutionality of this procedure has a substantial likelihood of impacting this Court s precedent and could lead to further litigation in Correll s case, as well as the cases of other Florida death row inmates, with regard to the manner of their executions. See Banks v. State, 150 So. 3d 797, (Fla. 2014). Florida has executed eleven people since it began using midazolam protocol. 11 During William Happ s execution, his head moved back and forth after he was declared unconscious. 12 When Muhammad underwent lethal injection, his 10 According to the Execution by Lethal Injection Procedures provided by the Florida Department of Corrections for Correll s execution, Florida uses 500 milligrams of midazolam, followed by 100 milligrams of vecuronium bromide, which is then followed by 240 milliequivalents of potassium chloride. See Appendix K. 11 See Appendix K; see also Execution List, 1976 Present, FLORIDA DEPARTMENT OF CORRECTIONS, 12 The Associated Press, Fla. executes man for Illinois woman s 1986 murder (Oct. 15, 2013), 14

16 right eye opened after he was deemed unconscious. 13 Juan Chavez s feet moved while he was receiving the lethal components of the injection. 14 Finally, when Florida executed Eddie Davis, his mouth was observed opening and closing after he was deemed unconscious. 15 Notably, Florida uses a paralytic as the second drug in its three-drug protocol. See Appendix K (Execution by Lethal Injection Procedures provided by the Florida Department of Corrections for Correll s execution). These instances of movement indicate that midazolam is not effectively working to render and maintain unconsciousness in inmates undergoing lethal injection in Florida. Some of Correll s postproduction requests for additional public records specifically demanded information about the lethal injection drugs that have been used in executions in Florida and would be used to carry out Correll s death sentence. The Ninth Judicial Circuit Court, in its order, denied all records requests that were objected to, and with regard to the lethal injection protocol stated as 13 Monivette Cordeiro, After almost four decades on death row, inmate executed, THE GAINESVILLE SUN (Jan. 7, 2014), 14 Jay Weaver and David Ovalle, Juan Carlos Chavez executed for murder of Jimmy Ryce, MIAMI HERALD (Feb. 12, 2014), 15 Ryan Raiche and Jason Dearen, State executes man for 1994 rape, murder of girl (July 9, 2014), 15

17 follows: The Florida Supreme Court has held that production of these types of records would not lead to a colorable claim and are properly denied. See Muhammad v. State, 132 So. 3d 176, (Fla. 2013); Chavez v. State, 132 So. 3d 826 (Fla. 2014). Additionally, the United States Supreme Court has held that post-conviction claims based on nothing more than the source of lethal injection drugs do not present a cognizable claim that a lethal injection procedure is unconstitutional. Brewer v. Landrigan, 131 S.Ct. 445 (2010).... Defendant has not demonstrated that the conditions presenting the risk of cruel and unusual punishment are sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers. Baze v. Rees, 128 S. Ct (2008). The United States Supreme Court has rejected the argument that the risk that a state would not properly follow its own lethal injection protocols constitutes an Eighth Amendment violation. Id. at Defendant has not met his burden in proving a cognizable claim under Baze. Correll continues to disagree with the post-conviction court s denial of information regarding the lethal injection three-drug protocol, which is essentially the same as is used in Oklahoma. This Court has previously and consistently denied claims based on the constitutionality of Florida s lethal injection protocol, which has been in effect since September In Banks v. State, the last case in which a Florida death row inmate under a warrant challenged the constitutionality of the lethal injection protocol, this Court held as follows: 16 The Execution by Lethal Injection Procedures provided by the Florida Department of Corrections for Correll s execution states that [t]his procedure applies to any execution for which a death warrant was filed after September 6, 2013 and to any other execution scheduled to occur after November 30, See Appendix K. 16

18 Next, Banks contends that the circuit court erred in denying his claim that Florida s lethal injection protocol violates the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. He argues that the first and second drugs in the protocol, midazolam hydrochloride and vecuronium bromide, present an objectively intolerable risk of pain and suffering. He claims that midazolam is not a suitable drug to render him insensate prior to the administration of the second and third drugs. And, if not properly anesthetized, the paralytic nature of vecuronium bromide will render him unable to convey that he is experiencing pain and suffering. To state a claim under the Eighth Amendment, a defendant must show that a state s lethal injection protocol is sure or very likely to cause serious illness and needless suffering. Brewer v. Landrigan, 131 S.Ct. 445, 445 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50 (2008) (plurality opinion)). [T]o prevail on such a claim there must be a substantial risk of serious harm, an objectively intolerable risk of harm. Baze, 553 U.S. at 50 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n.9 (1994)). Such a challenge cannot be based on conjecture or speculation. Deparvine v. State, 146 So. 3d 1071, 1104 (Fla.2014) (citing Pardo v. State, 108 So. 3d 558, 563 (Fla.), cert. denied, 133 S.Ct. 815 (2012)); Chavez v. State, 132 So. 3d 826, 831 (Fla.), cert. denied, 134 S.Ct (2014). Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of objectively intolerable risk of harm that qualifies as cruel and unusual. Baze, 553 U.S. at 50. We have repeatedly rejected Eighth Amendment challenges to Florida s lethal injection protocol as revised in September See Davis v. State, 142 So. 3d 867, (Fla.), cert. denied, 189 L.Ed.2d (2014); Henry v. State, 134 So. 3d 938, (Fla.), cert denied, 134 S.Ct (2014); Howell, 133 So. 3d 511, (Fla.), cert. denied, 134 S.Ct (2014); Chavez, 132 So.3d at 831; Muhammad v. State, 132 So. 3d 176, (Fla.2013), cert. denied, 134 S.Ct. 894 (2014). We have held that the use of midazolam hydrochloride as the first drug in the lethal injection protocol does not violate the Eighth Amendment. Chavez, 132 So. 3d at 831 (citing Muhammad, 132 So. 3d at 195). We have likewise rejected Eighth Amendment challenges to the use of vecuronium bromide. Howell v. 17

19 State, 133 So. 3d at ; Pardo, 108 So. 3d at Challenges to the use of both drugs have also been rejected in federal court. See Muhammad v. Crews, No. 3:13 cv 1587 J 32JBT, 2013 WL , at *8 (M.D. Fla. Dec. 27, 2013) (noting that if consciousness check is done correctly after administration of midazolam hydrochloride there is no substantial risk of harm), cert. denied, 134 S.Ct. 894 (2014); Ferguson v. Warden, Fla. State Prison, 493 Fed. Appx. 22, 24 25, 2012 WL , at *2 (11th Cir. 2012) (unpublished) (finding that use of vecuronium bromide as second drug in Florida's protocol does not violate Eighth Amendment). Once we have upheld the constitutionality of a lethal injection protocol, that protocol is facially constitutional as a matter of law. Banks has not presented any new information that would warrant reconsideration of our prior decisions upholding the constitutionality of the current protocol. Banks contention that there is a known, available alternative to Florida s three-drug protocol, using only one drug, is likewise foreclosed. We rejected the notion that Florida is constitutionally mandated to adopt a one-drug protocol in both Howell, 133 So.3d at 515, and Muhammad, 132 So.3d Baze provides that courts should not be transformed into boards of inquiry on determining the best practices for execution procedures, nor should the courts be embroiled in ongoing scientific controversies beyond their expertise. Baze, 553 U.S. at 51. A showing of a slightly or marginally safer alternative is insufficient to satisfy the risk of harm that is actionable under the Eighth Amendment. Id. In addition to his challenges to the drugs, Banks takes issue with other parts of the protocol. However, these challenges are also foreclosed by our prior decisions. See Troy v. State, 57 So.3d 828, 840 (Fla. 2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for postconviction relief); Schwab v. State, 995 So.2d 922, 930 (Fla.2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightbourne v. McCollum, 969 So.2d 326, 351 (Fla. 2007) (rejecting 18

20 challenge to qualifications and training of personnel involved in execution). Banks, 150 So. 3d at As this Court noted in Banks, under the current case law in Florida, death row inmates, including Correll, are foreclosed from raising colorable claims in their post-conviction pleadings regarding the constitutionality of the current lethal injection three-drug protocol, the identification and qualifications of the execution team member(s), and from obtaining public records related to these claims. See Banks, 150 So. 3d at However, the grant of the writ of certiorari by the Supreme Court of the United States in Glossip has brought this Court s foregoing litany of prior decisions regarding the constitutionality of the lethal drug protocol into question. Correll may become successful in raising claims regarding the lethal injection protocol after the decision in Glossip. The Supreme Court of the United States in Glossip can rule broadly on the lethal injection protocol as it did in the Baze decision almost seven [7] years ago, or the Court may focus on the constitutionality of using the sedative midazolam, which is part of Florida s current lethal injection protocol. In its order denying Correll s emergency motion for stay of execution, the Ninth Judicial Circuit Court ruled that Correll had not shown that there were substantial grounds upon which relief might be granted, citing Barefoot v. Estelle, 463 U.S. 880, 895 (1983). According to Estelle, there must be (1) a 19

21 reasonable probability that four members of the Supreme Court would consider the underlying issue sufficiently meritorious to grant certiorari; (2) a significant possibility of reversal of the lower court s decision, and (3) a likelihood that irreparable harm will result if the decision is not stayed. Id., citing White v. Florida, 458 U.S. 1301, 1302 (1982). The circuit court held that the first and third factors were not disputed, but with regard to the second factor, the court held that Correll could only speculate that Florida s lethal injection protocol might eventually be overturned. Correll disagrees with the circuit court s ruling that he had not satisfied the second factor as set forth in Estelle. The fact is that, not only is there a reasonable probability that four justices of the United States Supreme Court would consider the issue of the constitutionality of Florida s midazolam protocol sufficiently meritorious to grant certiorari, four justices have ruled the issue sufficiently meritorious, and have granted certiorari on the issue as raised by the Oklahoma petitioners in Glossip. Because Florida s lethal injection protocol is essentially the same as the protocol in dispute in Glossip, and because there is continually emerging evidence that the administration of midazolam as a sedative in lethal injection protocols leads to an unreasonable risk of extreme pain and suffering, there is a substantial possibility of the reversal of the Florida precedent. In order for Florida s current lethal injection protocol to be deemed unconstitutional, five 20

22 Supreme Court of the United States justices would need to agree with the sentiments summarized by Justice Sotomayor in her recent dissent in the case of Warner v. Gross: 17 Petitioners' likelihood of success on the merits turns primarily, then, on the contention that midazolam cannot be expected to maintain a condemned inmate in an unconscious state. I find the District Court's conclusion that midazolam will in fact work as intended difficult to accept given recent experience with the use of this drug. [The Supreme Court of the United States] should have granted petitioners application for stay. The questions before us are especially important now, given States increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions. 135 S.Ct. 824, 828 (January 15, 2015) (Sotomayor, J., joined by Ginsburg, J., Breyer, J., and Kagan, J., dissenting). In her dissent, Justice Sotomayor was joined by Justices Ginsburg, Breyer, and Kagan. Therefore, it is clear that four justices have definite concerns about the use of midazolam by the states to carry out lethal injection. Given the tenor of facts continually emerging as to its efficacy as a sedative, it is likely that a fifth justice will, upon hearing such facts, be persuaded that it is unconstitutional. Therefore, Correll submits that the circuit court incorrectly determined that he had not satisfied the second factor set forth in 17 In Warner, the Supreme Court of the United States declined to stay the execution of Charles Warner, one of the original petitioners in Glossip. The Court soon thereafter granted certiorari in Glossip, and has since stayed the executions of the remaining three petitioners. 21

23 Estelle, that there is a significant possibility of reversal of Florida s precedent. See Lightbourne, 969 So. 2d at 335 citing Art. 1, 17, Fla. Const. ( [W]e must evaluate whether lethal injection is unconstitutional in conformity with decisions of the United States Supreme Court. ). Accordingly, Correll submits that the circuit court should have granted a stay, and further, that this Court must grant him a stay to allow the Supreme Court of the United States to address the constitutionality of the midazolam protocol. Correll s constitutional claims would become moot if he is executed as scheduled. See Booker, 473 U.S. at 936 (Powell, J., concurring). It would constitute a grave injustice for this state to hastily proceed with the execution of Correll and any other Florida death row inmates under Florida s current lethal injection protocol using midazolam, which has a significant likelihood to be found to be unconstitutional by the Supreme Court of the United States. Furthermore, to execute Correll without the constitutionality of the three-drug lethal injection protocol having been fully litigated would not comport with the evolving standards of decency that our society holds dearly. See Roper v. Simmons, 543 U.S. 551, 561, 1255 S.Ct. 1183, 161 L.Ed. 2d 1 (2005) (quoting Trop v. Dulles, 356 U.S. 86, , 78 S.Ct. 590, 2 L.Ed. 630 (1958) (plurality opinion); see Lightbourne, 969 So. 2d at quoting Weems v. United States, 217 U.S. 349, 373, 30 S.Ct. 544, 54 L.Ed. 793 (1910). This Court should, rather than hastily abide by the Governor s 22

24 clock setting a man s execution, be willing to wait for the Supreme Court of the United States to consider the constitutionality of Florida s three-drug protocol. See Warner, 135 S.Ct. at 828. The harm is too great not to wait. Correll has been on death row for 29 years. Justice Harry Lee Anstead, joined by Justice Peggy Ann Quince highlighted the importance of a stay in a case where there is a review of a constitutional issue by the Supreme Court of the United States that can affect current Florida law. See Schwab v. State, 973 So. 2d 427, (Mem) (Fla. 2007) (Anstead, J., joined by Quince, J., dissenting). Justice Anstead wrote as follows: The circumstances of this case, and especially the United States Supreme Court's pending review of the constitutional issues involved, present this Court with a compelling case for ordering that the execution of the appellant be stayed pending the Supreme Court's resolution of the constitutionality of the use of lethal injection as it is administered in Florida and other states. While the pendency of a case directly on point in the Supreme Court alone constitutes a compelling reason for the entry of a stay, this factor is especially compelling in Florida because our state constitution mandates that this Court must apply the United States Supreme Court's decision on the issue before us. Id. at 430 (emphasis added). The dissent goes on to provide compelling reasons that even today hold to be true, and that this Court should heed in deciding whether to grant a stay in Correll s case: There are several important factors that operate together to produce a compelling case for staying the appellant's execution pending the United States Supreme Court's resolution of the constitutionality of lethal injection and the manner in which it is administered. The first is 23

25 fundamental and obvious: the consequences of failing to enter a stay will be irremediable. That is, once the appellant is put to death any decision by the United States Supreme Court impacting the use of lethal injection cannot possibly be applied here no matter the merits of the constitutional claims; on the other hand, the grant of a stay will result in no detriment to the State because immediately following any United States Supreme Court's decision denying relief to Baze the State will be free to execute the appellant in accord with that decision. Two other factors, however, in favor of granting a stay are, perhaps, the most compelling: First, Florida's Constitution expressly mandates that this Court apply the United States Supreme Court's decisions on the cruel and unusual punishment clause of the United States Constitution to any decision we render on the meaning of Florida's cruel and unusual punishment constitutional provision. 18 In other words, in this case there is an explicit command in Florida's Constitution that this Court must follow the United States Supreme Court's decisions on whether death by lethal injection as it is currently being administered constitutes cruel and unusual punishment, the very issue before us. However, as the majority opinion in Lightbourne makes abundantly clear, there is presently no United States Supreme Court decision on this issue. If that was the 18 Art. 1, 17, Fla. Const. states as follows: Excessive punishments. Excessive fines, cruel and unusual punishment, attainder, forfeiture of estate, indefinite imprisonment, and unreasonable detention of witnesses are forbidden. The death penalty is an authorized punishment for capital crimes designated by the legislature. The prohibition against cruel or unusual punishment, and the prohibition against cruel and unusual punishment, shall be construed in conformity with decisions of the United States Supreme Court which interpret the prohibition against cruel and unusual punishment provided in the Eighth Amendment to the United States Constitution. Any method of execution shall be allowed, unless prohibited by the United States Constitution. (emphasis added). 24

26 end of the story, this dissent would not be written. But, that is not the end of story, since we know as an absolute fact that the United States Supreme Court has this very issue pending before it and will be rendering a decision that, pursuant to the mandate in Florida's Constitution, will control the outcome of this case. See Baze v. Rees, --- U.S. ----, 128 S.Ct. 34, 168 L.Ed.2d 809 (2007). In other words, there is no controlling Supreme Court decision on point at this precise instance, but such a decision is pending. Under these circumstances it is pure sophistry to suggest this Court can ignore the mandate in Florida's Constitution that we apply Supreme Court law to the constitutional issue before us in this case. Why would we rely on speculating on Supreme Court law, as the majority opinion in Lightbourne does, when we know a Supreme Court decision on this very issue is forthcoming? While the majority may be confident in the correctness of its analysis and decision, this Court is constitutionally bound to look to the decision of the United States Supreme Court in the pending case. And, while the risk of some contrary decision by that Court may seem small, there is absolutely no risk of adverse consequences to the State in entering a stay. As the majority opinion in Lightbourne acknowledges, other courts around the country have applied a variety of standards and some have invalidated similar lethal injection procedures. Similarly, stays of execution have been entered in other jurisdictions.... Of course, Schwab's right to a hearing on this issue will be mooted by his execution. Further, the defendant is not going anywhere, and, under Florida's law keeping death warrants alive indefinitely, the setting of a prompt date for execution following a United States Supreme Court decision favorable to the State will be a simple task. Id. at (footnote not in original); see also Lightbourne v. McCollum, 969 So. 2d 326, (Fla. 2007) ( We begin with acknowledging as critical that in 2002, the Florida Constitution [Art. 1, 17, Fla. Const.] was amended to provide that Florida's interpretation of the cruel and unusual punishment clause is be construed in conformity with the United States Supreme Court's decisions. ). This 25

27 Court should consider Justice Anstead s words in support of a grant of stay for Correll. The Supreme Court of the United States decision to grant certiorari in Baze and the constitutionality of the lethal injection protocol used in Baze specifically resulted in stays being granted in all cases involving lethal injection. In effect, all executions were put on hold until the lethal injection controversy was resolved by the Supreme Court of the United States in Baze. The states which issued initial stays of execution after the Supreme Court of the United States granted certiorari on September 25, 2007, in Baze, were Alabama, Texas, Arkansas, Arizona, Nevada, Virginia, Georgia, Mississippi, and Florida. See Death Penalty Information Center, Lethal Injection: Stays Granted, at (last visited January 25, 2015); see also See Death Penalty Information Center, Execution List 2014, at (last visited Jan. 25, 2015); see also Death Penalty Information Center, Execution List 2013, at (last visited Jan. 25, 2015). Even the Attorney General of Oklahoma went as far as requesting its Court of Criminal Appeals to postpone setting of execution dates until Baze was decided. Short v. State, Case No. D , State s Notice of Exhaustion of State and Federal Appeals (Okla. Crim. App. October 3, 2007). The United States District 26

28 Court in Delaware issued a stay in lethal injection challenges pending a decision in Baze. See Jackson v. Danberg, Civ. No SLR (D. Del. September 26, 2007). Given the recent unforeseeable developments, for the State of Florida to proceed to execute Correll on February 26, 2015, at 6:00 pm, would be arbitrary, improper, and unjust. See e.g., Timberlake v. State, 859 N.E. 2d (Ind. 2007). Additionally, Correll would be denied due process and the equal protection of the law guaranteed to him by the Fifth and Fourteenth Amendments to the Constitution of the United States. Florida s precedent upholding the constitutionality of the midazolam protocol has foreclosed him from previously raising the issue of the protocol s constitutionality in the circuit court, due to the procedural posture of his case and the fact that the issue has not yet been decided by the United States Supreme Court. See Fla. R. Crim. P (d)(2) (requiring that any motion under the Rule filed more than one year after the judgment and sentence of death become final meet one of three additional requirements: (A) the facts on which the claim is predicated [be] unknown to the movant or the movant s attorney and [not be able to have been] ascertained by the exercise of due diligence, or (B) the fundamental constitutional right asserted [must not have been] established within [one year after the judgment and sentence became final] and [must have] been held to apply retroactively, or (C) postconviction counsel, 27

29 through neglect, [must have] failed to file the motion. ) The Supreme Court of the United States grant of certiorari in Glossip means that the Court will decide a fundamental issue of whether the use of the midazolam protocol constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Correll faces the same factual circumstances, being threatened with an execution using an inferior and inappropriate sedative, as do the petitioners in Glossip, all of whom, as of January 28, 2015, will live to see the United States Supreme Court s decision on the issue. Correll asks that he be given the same opportunity as the petitioners in Glossip, to live to see the United States Supreme Court s decision on this issue that will directly impact his case. It would be a waste of judicial resources for the parties in Correll s case to make any argument beforehand and for this Court to reach any decision which will be necessarily premised on the very same question the United States Supreme Court will address in Glossip. If this state executes Correll under a protocol that is later found to be unconstitutional when there were avenues to prevent the execution, then this state would have committed the greatest injustice and an irreparable harm. The humane and just remedy is to stay Correll s execution pending a decision in Glossip. Alternatively, if this Court is not inclined to grant a stay at the present time, Correll requests that this Court relinquish jurisdiction to the circuit court to allow him to file successive motion under Florida Rule of Criminal Procedure 3.851, in 28

30 accordance with Glossip that brings into question current Florida law on the question of the three-drug protocol s constitutionality. 29

31 CONCLUSION The reasons set forth above demonstrate that the method by which Florida intends to execute Correll may be found to be unconstitutional by the United States Supreme Court in Glossip. While the harm to Correll would be great if a stay is not granted, Florida, in comparison, will suffer little appreciable harm. If a stay is granted, the only potential harm to Florida is that it will have to wait on the Supreme Court of the United States before it can carry out the execution. That delay is a temporary harm compared to the irreparable harm of permitting an unconstitutional execution to take place. Simply stated, Correll implores this Court to just pause until the controversy as to the use of midazolam is resolved, thus ensuring that if he is executed his death sentence would be administered in the most humane manner. This Court should stay Correll s execution until the Supreme Court of the United States has decided Glossip. Alternatively, this Court should relinquish jurisdiction to the circuit court to allow Correll to file a successive motion under Florida Rule of Criminal Procedure 3.851, in accordance with Glossip that brings into question current Florida law on the question of the three-drug protocol s constitutionality. 30

32 Respectfully submitted /s/ Raheela Ahmed Raheela Ahmed Florida Bar Number Assistant CCRC Secondary /s/maria Christine Perinetti Maria Christine Perinetti Florida Bar Number Secondary /s/ Donna Ellen Venable Donna Ellen Venable Florida Bar No Secondary The Law Office of the Capital Collateral Regional Counsel - Middle Region 3801 Corporex Park Drive, Suite 210 Tampa, Florida Tel: (813) Fax: (813) Attorneys for the Appellant 31

33 CERTIFICATE OF SERVICE I HEREBY FURTHER CERTIFY that a true copy of the foregoing has been furnished to Supreme Court of Florida at warrant@flcourts.org on this 29th day of January, I HEREBY FURTHER CERTIFY that a true copy of the foregoing has been furnished via electronic mail to Carol Dittmar, Candance M. Sabella & Carolyn M. Snurkowski, Assistant Attorney Generals, Office of the Attorney General, Criminal Appeals & Capital Collateral Appellate Division, Concourse Center 4, 3507 East Frontage Road, Suite 200, Tampa, Florida , at carol.dittmar@myfloridalegal.com, candance.sabella@myflorida.com, caroyln.snurkowski@myfloridalegal.com, and at capapp@myfloridalegal.com on this 29th day of January, I HEREBY FURTHER CERTIFY that a true copy of the foregoing has been furnished to Jerry William Correll, DOC# , Florida State Prison, 7819 N.W. 228 th Street, Raiford, Florida 32026, on this 29th day of January, Respectfully submitted /s/ Raheela Ahmed Raheela Ahmed Florida Bar Number Assistant CCRC ahmed@ccmr.state.fl.us Secondary support@ccmr.state.fl.us /s/maria Christine Perinetti Maria Christine Perinetti Florida Bar Number perinetti@ccmr.state.fl.us Secondary support@ccmr.state.fl.us 32