IN THE SUPREME COURT OF FLORIDA CASE NO. SC65380 ROBERT DEWEY GLOCK, II. Petitioner, MICHAEL W. MOORE, Secretary

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC65380 ROBERT DEWEY GLOCK, II Petitioner, v. MICHAEL W. MOORE, Secretary Department of Corrections, State of Florida Respondent. PETITION FOR WRIT OF HABEAS CORPUS EMERGENCY MOTION, CAPITAL CASE DEATH WARRANT SIGNED; EXECUTION SET FOR DECEMBER 8, 2000 AT 6 P.M. TERRI L. BACKHUS Florida Bar No Backhus & Izakowitz, P.A. 303 S. Westland Avenue P.O. Box 3294 Tampa, FL (813) COUNSEL FOR PETITIONER

2 INTRODUCTION Mr. Glock is facing death because of arbitrary and procedural rules. Had Mr.Glock s case been delayed for several months or given the proper amount of time to which he was entitled, Mr.Glock would now be serving a life sentence. But because of the arbitrariness of the death penalty, Mr. Glock is facing death within days. This Court is being asked to stop this arbitrariness and brush aside the technical machinations that resulted in Mr. Glock s death sentence. Mr. Glock was denied relief under the Fourth, Fifth, Sixth, Eighth and Fourteenth amendments to the United States Constitution simply because of arbitrary and procedural rules. These arbitrary rules that resulted in Mr. Glock s pending execution violate fundamental constitutional imperatives. See, Furman v. Georgia, 408 U.S. 238 (1971) REQUEST FOR ORAL ARGUMENT This Court originally scheduled oral argument in this case for November 30, 2000 but later canceled it because it was premature and no pleadings had been filed by that date. Since this Court had already scheduled an oral argument, Mr. Glock requests that he be given the opportunity again. Oral argument is more than warranted in this case given the issues presented and the severity of the stakes. JURISDICTION A writ of habeas corpus is an original proceeding in this Court governed by Fla. R. App. P This Court has original jurisdiction under Fla. R. App. P (a)(3) and Article V, 3(b)(9), Fla. Const. 2

3 The Florida Constitution guarantees that "[t]he writ of habeas corpus shall be grantable of right, freely and without cost." Art. I, 13, Fla. Const. Its constitutional guarantee imbues habeas corpus with special status, which this Court has long recognized: The writ of habeas corpus is a high prerogative writ of ancient origin designed to obtain immediate relief from unlawful imprisonment without sufficient legal reason.... The writ is venerated by all free and liberty loving people and recognized as a fundamental guaranty and protection of their right of liberty. Allison v. Baker, 11 So. 2d 578, 579 (1943). Habeas corpus is a centuries-old right, deserving more protection than a constitutional right. The great writ has its origins in antiquity and its parameters have been shaped by suffering and deprivation. It is more than a privilege with which free men are endowed by constitutional mandate; it is a writ of ancient right. Jamason v. State, 447 So. 2d 892, 894 (Fla. 4th DCA 1983), approved 455 So. 2d 380 (Fla. 1984), cert. denied, 469 U.S (1985). Regarding the application of procedural rules to petitions seeking the writ, this Court has explained: [H]istorically, habeas corpus is a high prerogative writ. It is as old as the common law itself and is an integral part of our own democratic process. The procedure for the granting of this particular writ is not to be circumscribed by hard and fast rules or technicalities which often accompany our consideration of other processes. If it appears to a court of competent jurisdiction that a man is being illegally restrained of his liberty, it is the responsibility of the court to brush aside formal technicalities and issue such appropriate orders as will do justice. In habeas corpus the niceties of the procedure are not anywhere near as important as the determination of the ultimate question as to the legality of the restraint. Anglin v. Mayo, 88 So. 2d 918, (Fla. 1956) (emphasis added). 3

4 The fundamental guarantees enumerated in Florida's Declaration of Rights should be available to all through simple and direct means, without needless complication or impediment, and should be fairly administered in favor of justice and not bound by technicality. Haag v. State, 591 So. 2d 614, 616 (Fla. 1992). PROCEDURAL HISTORY On October 12, 1983, Robert Glock and Carl Puiatti were charged with firstdegree murder, robbery and kidnapping in the Sixth Judicial Circuit, Pasco County, Florida. The charges arose from the August 16, 1983 death of Sharilyn Ritchie. At a joint trial, the jury found both defendants guilty of all counts (R. 2105). After a joint penalty phase, the jury recommended death for both defendants (R ). The trial court imposed death, finding three aggravating factors and no mitigating factor as to Mr. Glock. (R ). Mr. Glock appealed to the Florida Supreme Court, which affirmed his conviction and sentence. Puiatti v. State/Glock v. State, 495 So. 2d 128 (Fla. 1986). Clemency proceedings were held on November 20,1987. Clemency was denied when the governor signed a death warrant against Mr. Glock on October 28, 1988, scheduling his execution for January 17, On November 28, 1988, while under warrant, Mr. Glock filed a Fla. R. Crim. P motion in state circuit court and a habeas corpus petition in the Florida Supreme Court. The circuit court summarily denied Rule relief. The Florida Supreme Court affirmed this denial and denied Mr. Glock s state habeas corpus petition. Glock v. Dugger, 537 So. 2d 99 (Fla. 1989). Mr. Glock filed a federal petition for a writ of habeas corpus in district court, 4

5 which denied the petition. Glock v. Dugger, 752 F. Supp (M.D. Fla. 1990). The district court issued a certificate of probable cause to appeal (R-3-43). After briefing and oral argument, the Eleventh Circuit Court of Appeals affirmed the district court s denial of Mr. Glock claim under Bruton v. United States, 391 U.S. 123 (1968), but reversed the district court s denial of Mr. Glock s claim under Espinosa v. Florida, 112 S.Ct (1992). Glock v. Singletary, 36 F. 3d 1014 (11 th Cir. 1994). The panel opinion did not address Mr. Glock s other sentencing claims. The en banc Eleventh Circuit vacated the panel opinion and set Mr. Glock s case for en banc rehearing. Glock v. Singletary, 51 F. 3d 942 (11 th Cir. 1995). After briefing and oral argument, the en banc court held that Mr. Glock was barred from obtaining relief on his Espinosa claim under Teague v. Lane, 489 U.S. 288 (1989). Glock v. Singletary, 65 F. 3d 878 (11 th Cir. 1995) (en banc). The panel then issued an opinion addressing the sentencing claims that were not addressed in the first panel opinion. Glock v. Singletary, 84 F. 3d 385 (11 th Cir. 1996). The panel affirmed the district court s denial of all but one of Mr. Glock s sentencing claims, ordering an evidentiary hearing on Mr. Glock s claim that his trial counsel rendered ineffective assistance of counsel in failing to discover through routine investigation mitigating evidence and to present that evidence that the separate sentencing proceedings before the jury and the court. Concluding that Mr. Glock s claim was not without merit, the panel ordered an evidentiary hearing. The district court evidentiary hearing was held on March 31, and April 1,

6 before a magistrate. The magistrate issues a report and recommendation on March 6, 1998, recommending that the petition be denied (R4-111). Mr. Glock timely filed objections to the magistrate s report. The district court adopted the magistrate s report and recommendation, overruling Mr. Glock s objections and denied relief (R4-114). Mr. Glock timely filed a motion to alter and amend judgment (R4-117), which was denied. Mr. Glock filed a notice of appeal (R4-119) and a motion for certificate of probable cause (R4-120), which was granted (R4-121). The Eleventh Circuit Court of Appeals denied relief, Glock v. Moore, 195 F. 3d 625 (11 th Cir. 1999). Rehearing was denied on February 23, Glock v. Moore, 210 F. 3d 395 (11 th Cir. 200). A Petition for Certiorari was denied on October 2, 2000, Glock v. Moore, 121 S. Ct. 213 (2000). On November 14, 2000, the Governor Jeb Bush signed a 24-day warrant on Mr. Glock. His execution is scheduled for December 8, 2000 at 6 p.m. GROUNDS FOR HABEAS CORPUS RELIEF By his petition for a writ of habeas corpus, Mr. Glock asserts that his capital conviction and sentence of death were obtained in violation of his rights guaranteed by the Eighth and Fourteenth amendments to the United States Constitution, and the corresponding provision of the Florida Constitution, for the reasons set forth below. 6

7 CLAIM I MR. GLOCK S SENTENCE OF DEATH HAS BEEN APPLIED IN AN ARBITRARY AND CAPRICIOUS MANNER IN VIOLATION OF HIS EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND ARTICLE I, SECTION 9 OF THE FLORIDA CONSTITUTION. The imposition of Mr. Glock s death sentence is arbitrary and depends, not on the nature of the crime or the character of the defendant, but on the freakish timing of his case. Had Mr. Glock s case been considered in circuit court a few months later, had he been allowed to use his full two-year statutory window in which to file his post-conviction motion instead of being forced to investigate and litigate his claims under warrant, Mr. Glock would certainly have been entitled to relief from the unconstitutional jury instruction that was given at his trial. This Court has the power to correct these errors. Justice requires no less. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed...i simply conclude that the Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. Furman v. Georgia, 408 U.S. 238, 310 (1971)(Stephens, J. Concurring) In Furman, the Supreme Court was concerned with meting out the death penalty unfairly, either because it was too harsh for the circumstances or because the punishment was being wantonly and freakishly imposed. Id. 7

8 Justice Douglas wrote: There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature... A recent witness at the Hearings before Subcommittee No. 3 of the House Committee on the Judiciary, 92d Cong., 2d Sess., Ernest van den Haag, testifying on H. R et al., stated: "Any penalty, a fine, imprisonment or the death penalty could be unfairly or unjustly applied. The vice in this case is not in the penalty but in the process by which it is inflicted. It is unfair to inflict unequal penalties on equally guilty parties, or on any innocent parties, regardless of what the penalty is." Id., at (Emphasis supplied.) Furman v. Georgia, 408 U.S. at 248 (Douglas, J. Concurring) Mr. Glock s case should be re-examined in the context of the Furman. A review is necessary by this Court to correct the procedural technicalities that obscure the meaning of the jury s consideration of an unconstitutional aggravating factor in sentencing Mr. Glock to death seventeen years ago. Despite efforts to provide uniform application of the law, the death penalty is still arbitrarily applied and that unequal penalties are unfairly applied on equally guilty parties, or on any innocent parties id. Justice Blackmun, who cast a dissenting vote in Furman, ultimately concluded the experiment had failed: Twenty years have passed since this Court declared that the death penalty must be imposed fairly, and with reasonable consistency, or not at all, See Furman v. Georgia, 408 U.S. 238 (1972), and, despite the effort of the States and courts to devise legal formulas and procedural rules to meet this daunting challenge, the death penalty remains fraught with arbitrariness, discrimination, caprice, and mistake. 8

9 Callins v. Collins, 510 U.S. 1141, 127 L.Ed.2d 435, 114 S.Ct. 1127, 1138 (1994)(Blackmun, J. dissent). While state and federal courts have tried through these years to meet the Furman mandate, an examination of this case shows that has not happened. The arbitrariness is plainly evident in the comparison between Mr. Glock s case and the case of Davidson James v. State, 615 So. 2d 668 (Fla. 1993). The nature of the crimes for which Mr. Glock and Mr. James were convicted are the same. Mr. Glock was convicted for the kidnapping and murder of Sharilyn Ritchie, who was shot several times by Mr. Glock and Mr. Puiatti. At joint sentencing, the trial judge imposed death finding three aggravating circumstances (R ). The trial court refused to find the aggravating circumstances that the murder was committed while the defendants were engaged in the commission of or flight after committing a robbery and kidnapping, and that the crime was especially heinous, atrocious and cruel because the court found the facts surrounding those aggravators were the same facts that supported the three aggravating factors of cold, calculated and premeditated, avoiding arrest, and pecuniary gain (R. 75). The jury was instructed on the bare language of all of the aggravating factors even though the defense requested expanded jury instruction (R. 2368). Mr. Glock s appellate attorney failed to raise the jury instruction issue on direct appeal. Mr. Glock s direct appeal was affirmed by this Court in Puiatti v. State/Glock v. State, 495 So. 2d 128 (Fla. 1986). A warrant was signed in 1988 by then Governor Martinez in an effort to force Mr. Glock to file his initial Rule postconviction motion before his two-year statutory window had expired. At the time Mr. Glock s case was finally stayed by this Court, counsel for Mr. Glock was 9

10 simultaneously representing four people under warrant. The Capital Collateral Representative s Office that had responsibility for Mr. Glock s case was litigating seventeen death warrants at the same time. Under these circumstances, Mr. Glock s initial Rule post-conviction motion was summarily denied by Judge Cobb without an evidentiary hearing on any of his claims. This Court affirmed the summary denial, but denied the claims on the merits. 1 One of those claims dealt with the trial judge s denial of an in limine request by defense counsel for an expanded jury instruction on the aggravating factors of cold, calculated and premeditated and heinous, atrocious and cruel. Even though the claim was not addressed on direct appeal, this Court rejected the claim on the merits. 2 In 1994, the Eleventh Circuit panel reversed the denial of Mr. Glock's claim under Espinosa v. Florida, 112 S. Ct (1992). The appeals court found that the jury had weighed unconstitutional aggravating factors in sentencing Mr. Glock to death and said Mr. Glock was entitled to a remand for resentencing. Glock v. Singletary, 36 F.3d 1014 (11th Cir. 1994). The State appealed the panel s decision. That same year, this Court in Andrea Jackson v. State, 648 So. 2d 85 (Fla. 1994) found that the jury instruction on the cold, calculated and premeditated aggravating factor also was unconstitutional. The en banc Court vacated the panel opinion, Glock v. Singletary, 51 F.3d 942 (11th Cir. 1995), and later held Mr. Glock was barred from obtaining relief on his Espinosa claim under the 1 Glock v. Dugger, 537 So. 2d 99 (Fla. 1989). 2 Mr. Glock s federal habeas corpus petition which was also summarily denied. Glock v. Dugger, 752 F. Supp (M.D. Fla. 1990). 10

11 procedural restrictions of Teague v. Lane, 489 U.S. 288 (1989). Glock v. Singletary, 65 F.3d 878 (11th Cir. 1995)(en banc). The panel then issued an opinion addressing the sentencing claims that were not addressed in the first panel opinion. Glock v. Singletary, 84 F.3d 385 (11th Cir. 1996). The panel affirmed the district court's denial of all but one of Mr. Glock's sentencing claims, ordering an evidentiary hearing on Mr. Glock s claim that his trial counsel rendered ineffective assistance at the penalty phase. After an evidentiary hearing, the district court denied relief, and the Eleventh Circuit affirmed. 3 A Petition for Certiorari was denied on October 2, 2000, Glock v. Moore, 121 S. Ct. 213 (2000). A death warrant was signed on November 14, Mr. Glock has had no other opportunity to bring this issue to this Court's attention until now. The anticipation and expectation that the federal judiciary would correct Mr. Glock's unconstitutional death sentence ended on October 2, 2000 with the denial of certiorari by the United States Supreme Court. Further, Mr. Glock was arbitrarily not afforded any counsel to represent him in clemency proceedings before Governor Bush signed the death warrant on November 14, By the luck of the draw, Davidson James fared better than Mr. Glock. His crime occurred in 1981 when he and a co-defendant robbed and killed one victim and shot another who survived. He and his co-defendant were tried separately. This Court affirmed Mr. James' direct appeal in See, James v. State, 453 So. 2d 786 (Fla. 1984). After a death warrant was signed in 1986, this 3 Glock v. Moore, 195 F.3d 625 (11th Cir. 1999). 11

12 Court denied Mr. James' petition for writ of habeas corpus and affirmed the trial court's denial of his first motion for post-conviction relief. James v. Wainwright, 484 So. 2d 1235 (Fla. 1986). While Mr. James' case was pending in federal court, a successive post-conviction motion was filed and summarily denied by the trial court based on Hitchcock v. Dugger, 481 U.S. 393 (1987). While the appeal was pending in this Court, however, the United States Supreme Court declared the "heinous, atrocious and cruel" aggravating factor constitutionally invalid under Espinosa, supra. In light of long-standing law regarding the significance of the jury recommendation to the sentence ultimately imposed, this Court itself declared that Espinosa was retroactive, at least, until 1982, the time of Mr. James' trial. Because "it would not be fair" to deprive Mr. James of the Espinosa ruling, this Court remanded Mr. James' case for a resentencing before a new jury. James v. State, 615 So. 2d 668 (Fla. 1993). Mr. James now is serving a life sentence. Under Furman, these two defendants should have been treated the same. Instead, the results of these two cases were dependent on what the attorney did, where the case was pending when the United States Supreme Court's decision in Espinosa was rendered, and what procedural rules were in effect at the time the cases were decided. It was the luck of the draw and Mr. Glock's luck ran out. If Furman is applied to Mr. Glock's case, then he is entitled to a new sentencing proceeding to present the mitigating evidence developed at the federal evidentiary hearing. 4 The question becomes whether the Florida Supreme Court decides Florida law or the federal courts decide by placing 4 In addition, the undefined aggravating circumstances of "heinous, atrocious and cruel," and "cold, calculated and premeditated" could have been a basis for the jury to determine death eligibility. Under Apprendi v. New Jersey, 120 S. Ct (2000), if this is true, it is an element of the crime. Mr. Glock's jury should have been required to find these factors individually, beyond a reasonable doubt. 12

13 arbitrary technical procedural applications to subvert the intent of Florida's sentencing scheme. This Court should be willing to ensure the fairness of the application of its laws. Justice Anstead, in a dissenting opinion in White v. State, 664 So. 2d 242 (Fla. 1995), agreed: The thoroughness and quality of this Court's review is relied upon by our society as an important safeguard for preventing executions where a serious question remains as to the fairness of the proceedings leading up to the imposition of the death penalty. That reliance is to be expected, even though it places an enormous burden on this Court. Indeed, simultaneously with the decision rendered in this case on a split vote, we have issued a unanimous opinion rejecting the appeal of another defendant scheduled for execution during the same time as appellant. In my view, however, there remains a serious question of the fairness of the proceedings herein. White v. State, 664 So. 2d at 245. (Anstead dissent in which Shaw and Kogan concurred). When the same case was reviewed by the Eleventh Circuit, Justice Kravitch in a special concurring opinion agreed but complained that her hands were tied by the deference they must give to Supreme Court rulings. Reluctantly, however, I write specially because in my view, had evidence of Mr. White's organic brain damage and low IQ been properly presented to the jury as a mitigating circumstance at sentencing, there is a reasonable probability that the death penalty would not have been imposed, and therefore that failure of the trial attorney to present such evidence constituted ineffective assistance of counsel. As the majority points out, however, this claim was raised in a prior habeas petition, although not as thoroughly documented or persuasively argued as in the present petition. We are bound by Supreme Court rulings as to the standard for cause in successive petitions, and unfortunately petitioner has not overcome these procedural hurdles. As a result, a potentially meritorious claim that might have kept Jerry White from the electric chair will never be heard. White v. Singletary, 70 F.3d 1198 (11th Cir. 1995), (Kravitch in concurring opinion)(emphasis added.) Justice Anstead also addressed this Court's actions in Proffitt v. State, 510 S. 2d 896 (Fla. 1987) where he recognized that the court was bound, despite the "multiple restrictions and refinements" 13

14 in the death sentencing process since the case was tried in 1974, to "fairly apply" Florida law. See, White v. State, 664 So.2d 731 (Fla. 1993). In that case, the Court set aside Profitt's death sentence based on changes in the law of proportionality. Justice Kogan reached the same conclusion when he denied relief in Johnson v. Singletary, 618 So. 2d 731 (Fla. 1993). In a special opinion, concurring in part, dissenting in part, he said: I otherwise concur with the majority, but do so with a few comments. Johnson argues essentially that this Court now should life the procedural bar applicable in this case on grounds we did something similar in James v. State [citation omitted]. In actuality, I find that this Court in James merely applied retroactively the rule of law announced in Espinosa v. State [citation omitted], which had been issued while Mr. James' collateral appeal was pending. [footnote] That is quite a different matter than lifting a procedural bar to reconsider issues now already litigated to finality, some on multiple occasions. Footnote: The case in James v. State, did not technically involve a procedural bar, because James' counsel had raised a proper objection to the matter at issue there and had argued the matter on appeal. During a later collateral challenge, the United States Supreme Court issued its opinion rendering this Court's resolution of the matter erroneous. We therefore applied the new rule of law retroactively out of a sense of fairness. Johnson v. Singletary, 618 So.2d 731, 732 (Fla. 1993) [citations omitted] (emphasis added). Mr. Glock was tried in At that time, Florida judges and lawyers did not know that the jury instructions for "heinous, atrocious and cruel" and "cold, calculated and premeditated" were unconstitutionally broad 5. Songer v. Wainwright, 769 F.2d 1488, 1494 (11th Cir. 1985) (en banc) (Clark, Kravitch, Johnson and Anderson, JJ., concurring in part and dissenting in part) ("Of course, 5 In Espinosa v. Florida, the U.S. Supreme Court declared Florida's jury instruction on "heinous, atrocious and cruel" unconstitutional. Two years later this court in Jackson v. State, 648 So. 2d 85 (Fla. 1994) declared the jury instruction on "cold, calculated and premeditated" unconstitutionally vague. 14

15 neither the State trial judge's nor Songer's counsel's [preclusive] construction of the statute was unfounded. Quite the contrary, theirs was the most reasonable interpretation of Florida law at the time.") See also Harvard v. State, 824 F.2d 879 (11th Cir. 1987) (same). Mr. Glock's appellate counsel operated under that "reasonable" but unconstitutionally restrictive interpretation. Mr. Glock's appellate counsel did what this court has repeatedly stressed that appellate counsel should do: winnow out weaker arguments in favor of stronger ones. As a consequence, Mr. Glock was denied a fully-informed jury that was correctly instructed on valid aggravating factors to consider in sentencing. Cf. Hitchcock v. Dugger, supra. Glock's appellate counsel had no way of knowing that later, under Stringer v. Black, 112 S. Ct. 1137, "when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death's side of the scale." Mr. Glock had two thumbs on death's side of the scale. Now, Mr. Glock is being punished for having appellate counsel who followed the law in not raising a claim challenging jury instructions that this Court repeatedly held were valid and constitutional. Glock's attorney was the better attorney for having recognized that fact. Yet, Davidson James' attorney who either ignored or did not know the law in regard to the validity of these jury instructions, was rewarded for raising a claim that, according to this court, had no merit. This leads to an incongruous and arbitrary result: Mr. James got relief because it would be "unfair" to deprive him of the Espinosa ruling, yet Mr. Glock whose counsel followed this Court's longstanding view that the "heinous, atrocious 15

16 and cruel" and "cold, calculated and premeditated" instructions were constitutional 6 is set to die on December 8, If Mr. Glock's trial were to occur today, both trial and appellate counsel would insure that Mr. Glock's jury was properly instructed on valid statutory aggravating circumstances as defined by law. Before the decision in Espinosa, Mr. Glock presented this claim in his prior post-conviction appeal and federal habeas corpus actions. This Court addressed this claim and found it had no merit. See, Glock v. Dugger, 537 So. 2d 99 (Fla. 1989). The Eleventh Circuit en banc ruled against Mr. Glock finding this claim to be barred from consideration by Teague v. Lane, 489 U.S. 288 (1989). However, the en banc court failed to address the claim on its merits. The Eleventh Circuit panel said Mr. Glock was entitled to relief. The validity of the claim has yet to be addressed under Florida law due to technical machinations that fail to equitably resolve the issue. The fact surrounding Mr. Glock's case fits the legal reasoning used in clemency proceedings. Because of the complexities of the legal system and the difficulties inherent in the attempting to seek redress of constitutional claims in courts of law due to procedural hurdles, the United States Supreme Court reaffirmed the importance of clemency to remedy injustices that are technically barred from presentation in courts of law: Executive clemency has provided the "fail safe" in our criminal justice system. K. Moore, Pardons: Justice, Mercy, and the Public Interest 131 (1989). It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. 6 See, Vaught v. State, 410 So. 2d 147 (Fla. 1982). 16

17 Herrera v. Collins, 113 S. Ct. 853, 868 (1993)(emphasis added). "Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted." Id. at 866 (footnotes omitted). The Eleventh Circuit's failure to discuss the equal protection and due process considerations that are the most critical part of a properly-instructed jury erected the same procedural hurdle for Mr. Glock. It failed to interpret Florida law as the Eleventh Circuit panel did and as this Court did in James. The result is that an invalid and unconstitutional instruction on "heinous, atrocious and cruel" and "cold, calculated and premeditated reached Mr. Glock's jury for consideration, when it did not guide their sentencing decision in any way. The jury did not know that the "heinous, atrocious and cruel" aggravator would be eliminated by Judge Cobb in his sentencing decision. Relief was warranted under Espinosa. The same relief is warranted for Mr. Glock. The ends of justice call on this Court to "step up to the plate." 7 7 White v. State, 664 So. 2d 242, 247 (Fla. 1995)(Anstead, J dissenting in which Shaw and Kogan concurred). 17

18 CONCLUSION For the reasons discussed here, Mr. Glock respectfully urges the Court to grant habeas corpus relief. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Habeas Corpus is being sent via facsimile transmission and U.S. Mail to Robert Landry, Assistant Attorney General, 2002 N. Lois Avenue, Suite 700, Tampa, FL and Phil Van Allen, Assistant State Attorney, Sixth Judicial Circuit, Pasco County, Live Oak Avenue, Dade City, FL this 6th day of December TERRI L. BACKHUS Backhus & Izakowitz Florida Bar No S. Westland Avenue Tampa, FL (813) Attorney for Robert Dewey Glock, II 18