Askari Abdullah Muhammad f/k/a Thomas Knight v. State of Florida

Supreme Court of Florida

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No. SC13-2105

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ASKARI ABDULLAH MUHAMMAD f/k/a THOMAS KNIGHT,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

[December 19, 2013]

CORRECTED OPINION

PER CURIAM.

Askari Abdullah Muhammad f/k/a Thomas Knight,1 a prisoner under

sentence of death, appeals from the denial of his successive motion for

postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851.

We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Muhammad filed the

instant successive postconviction proceeding after Governor Rick Scott signed a

death warrant on October 21, 2013. For the reasons set forth below, we affirm the

1. Muhammad‟s original name was Thomas Knight. While imprisoned,

Knight adopted the new name of Askari Abdullah Muhammad for primarily

religious reasons. See Muhammad v. State, 494 So. 2d 969, 970 n.1 (Fla. 1986),

cert. denied, 479 U.S. 1101 (1987). We refer to him herein as Muhammad.

circuit court‟s order denying postconviction relief on the claims raised in his

successive postconviction motion, but we reverse the court‟s order denying

Muhammad‟s public records request to the Florida Department of Corrections

(DOC) for copies of his own inmate and medical records, and we order immediate

transmission of copies of those records to Muhammad‟s counsel.

BACKGROUND

Muhammad was convicted of the October 12, 1980, first-degree murder of

correctional officer James Burke. Burke was fatally stabbed by Muhammad while

he was incarcerated on death row for the murder of a Miami couple.2 Burke was

routinely taking death row inmates to be showered and, when he unlocked

Muhammad‟s cell, Muhammad attacked him with a knife made from a sharpened

spoon. Burke died after suffering more than a dozen wounds. It was reported that

Muhammad became upset when he was not allowed to see a visitor because he had

refused to shave without a special exemption. Muhammad was heard to say he

would have to start “sticking people.” See Muhammad v. State, 494 So. 2d 969,

970 (Fla. 1986), cert. denied, 479 U.S. 1101 (1987).

2. When the murder of Burke occurred, Muhammad was on death row

pursuant to two death sentences for the murders of Lillian Gans and Sydney Gans.

See Knight v. State, 746 So. 2d 423, 426 (Fla. 1998) (affirming death sentences

imposed upon resentencing ordered by a federal appeals court); see also Knight v.

State, 338 So. 2d 201, 205 (Fla. 1976) (affirming convictions and sentences).

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In 1981, prior to trial, Muhammad‟s counsel obtained appointment of two

mental health experts to examine him as to competence, but he consistently refused

to cooperate with them. The court later added a third competency expert,

psychiatrist Jamil Amin, M.D., who was originally appointed as a defense advisor

but was later appointed to act as a competency expert. Muhammad did meet with

Dr. Amin and, based on an opinion from him that Muhammad was suffering from

a schizophreniform illness but was competent to stand trial, the trial court adjudged

Muhammad competent to proceed.

Muhammad sought to represent himself at trial but his request to proceed

pro se was denied by the first judge assigned to the case. After a second judge was

assigned to the case, Muhammad again asked to represent himself, but was denied.

The case proceeded to trial but ended in a mistrial. That trial judge subsequently

recused himself and Muhammad then proceeded to a second trial. He again sought

to represent himself and the successor judge allowed him to appear pro se with

standby counsel. Muhammad was convicted and waived a jury recommendation in

the penalty phase. The trial court found nothing in mitigation, and found three

aggravating factors: (1) the defendant was under a sentence of imprisonment,

§ 921.141(5)(a), Fla. Stat. (1979); (2) the defendant had been convicted of a prior

capital felony, § 921.141(5)(b), Fla. Stat.; and (3) the murder was especially

heinous, atrocious, or cruel, § 921.141(5)(h), Fla. Stat. Muhammad was sentenced

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to death and this Court affirmed both the conviction and the sentence in

Muhammad v. State, 494 So. 2d at 976.3

Muhammad filed an initial postconviction motion under Florida Rule of

Criminal Procedure 3.850, raising eighteen claims. Relief was denied and

Muhammad appealed the denial of fifteen claims.4 On appeal, this Court affirmed

3. The claims on direct appeal were: (1) the trial court erred in finding

Muhammad competent without sufficient facts; (2) the trial court erred in allowing

him to represent himself without first determining competency to waive counsel

and to represent himself; (3) the trial court erred in preventing him from presenting

evidence of insanity because he refused to be examined, in violation of his

constitutional rights; (4) the trial court erred in finding as aggravating factors that

Muhammad was under a sentence of imprisonment when he committed the murder

and that he had a conviction for a prior felony; and (5) the trial court erred in

failing to consider Muhammad‟s mental status in mitigation.

4. The claims appealed after denial of the initial postconviction motion

were: (1) summary denial was erroneous; (2) a reliable transcript and critical

records were not included in the record on appeal; (3) Muhammad was denied

effective assistance of counsel in violation of Faretta v. California, 422 U.S. 806

(1975); (4) Muhammad‟s constitutional rights were violated when the appointed

mental health expert failed to conduct a competent evaluation, causing counsel to

render ineffective assistance; (5) Muhammad was denied effective assistance of

counsel when defense counsel was ordered not to present an insanity defense;

(6) Muhammad was tried while not legally competent; (7) the death sentence was

unreliable because Muhammad was not competent to waive his sentencing jury,

and no advisory jury was employed; (8) Muhammad was denied his rights as a pro

se defendant at both phases of the trial; (9) State misconduct violated

Muhammad‟s right to a fundamentally fair and reliable trial and sentencing;

(10) the trial court‟s denial of Muhammad‟s motions for change of venue and for

individual voir dire deprived him of his right to a fair and impartial jury;

(11) Muhammad was indicted by a biased grand jury; (12) the trial court erred in

failing to consider Muhammad‟s mental deficiencies as mitigating circumstances

and in considering nonstatutory aggravating factors; (13) the trial court

unconstitutionally shifted the burden of proof with regard to the appropriateness of

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summary denial of most of the claims as procedurally barred. Muhammad v. State,

603 So. 2d 488, 489 (Fla. 1992). However, we reversed summary denial of the

claim that the State failed to disclose exculpatory statements concerning

Muhammad‟s mental state at the time of the crime in violation of Brady v.

Maryland, 373 U.S. 83 (1963), and remanded for an evidentiary hearing.

Muhammad, 603 So. 2d at 489-90.

On remand to the circuit court, and after an evidentiary hearing, the trial

court vacated Muhammad‟s death sentence and ordered a new sentencing hearing.

The State appealed the grant of a new sentencing hearing and Muhammad cross-

appealed the claim that the trial court failed to consider the impact of the evidence

presented at the evidentiary hearing on the guilt phase of his trial. See State v.

Knight, 866 So. 2d 1195 (Fla. 2003). We affirmed the portion of the trial court‟s

order denying the motion to vacate Muhammad‟s conviction, but reversed that

portion of the order vacating his death sentence. Id. at 1210. In reversing the order

granting a new penalty phase, we concluded that even if Muhammad had clearly

proven that certain employee and inmate statements from the DOC investigatory

a life sentence; (14) the jury and judge improperly considered certain “victim

impact” information; and (15) the “heinous, atrocious, or cruel” aggravating

circumstance was applied in violation of Maynard v. Cartwright, 486 U.S. 356

(1988). Muhammad combined and rearranged some of his claims on appeal, and

did not appeal his claims that the trial court failed to apply the law of the case and

collateral estoppel. See Muhammad, 603 So. 2d at 488-89 & n.1.

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file were willfully or inadvertently withheld, Muhammad failed to prove that he

was prejudiced by the alleged suppression. The seven unattributed, unsigned, and

undated statements contained limited and conflicting information concerning

Muhammad‟s state of mind around the time of the murder, and they were

cumulative to information in employee depositions that were turned over to

Muhammad, but which he did not attempt to use to present any mitigation.5 Id. at

1200-02. We also denied Muhammad‟s petition for writ of habeas corpus alleging

five claims of ineffective assistance of appellate counsel.6 Id. at 1203 & n.9. The

Supreme Court denied certiorari review in Muhammad v. Florida, 541 U.S. 1066

(2004).

5. While the case was on remand, Muhammad moved for a determination of

competency and the court appointed two experts on February 10, 1999. He was

found to be competent by one of the experts, but the record does not contain the

report of the second expert or an order of the court on the issue. See Muhammad

v. McDonough, No. 3:05-CV-62-J-32, 2008 WL 818812, *7 (M.D. Fla. Mar. 26,

2008), certificate of appealability denied, 554 F.3d 949 (11th Cir. (Fla.) 2009), cert.

denied, 559 U.S. 906 (2010).

6. The claims of ineffective assistance of appellate counsel were: (1) failure

to appeal the claim that the trial court instructed standby counsel not to assist

Muhammad; (2) failure to appeal the claim that Muhammad was not present at

critical stages of the proceedings, and the trial court engaged in ex parte

communications with the State; (3) failure to appeal denial of meaningful access to

the law library to prepare defenses; (4) failure to appeal the trial court‟s denial of

change of venue and sequestered, individual voir dire, thus denying a fair and

impartial jury; and (5) failure to appeal the claim that Muhammad was

unconstitutionally indicted by a biased grand jury. See Knight, 866 So. 2d at 1203

n.9.

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In 2005, Muhammad filed a petition for writ of habeas corpus in the federal

district court alleging ten claims.7 Muhammad v. McDonough, No. 3:05-CV-62-J-

32, 2008 WL 818812, *1-2 (M.D. Fla. Mar. 26, 2008). The federal court denied an

evidentiary hearing on the claims, id. at *8, *22, and denied habeas corpus relief.

Id. at *48. Muhammad sought a certificate of appealability from the Eleventh

Circuit Court of Appeals on five of the grounds previously pursued in the state

7. The claims filed in federal district court were: (1) Muhammad‟s

constitutional rights were violated because he was forced to undergo criminal

justice proceedings although he was not legally competent; (2) he was denied the

assistance of counsel (with four subclaims); (3) his constitutional rights were

violated and he was denied effective assistance of counsel when the court ordered

his defense counsel not to present an insanity defense; (4) he was denied his rights

as a pro se defendant in violation of the Constitution (with eight subclaims); (5) the

State‟s misconduct throughout the proceedings denied him his rights to a

fundamentally fair and reliable capital trial and sentencing guaranteed by the

United States Constitution (with three subclaims); (6) his death sentence is not

reliable because he was not competent to waive his sentencing jury, the trial court

failed to conduct the penalty phase before a sentencing jury, and the resulting

sentence violates the Constitution; (7) the trial court erred by failing to consider his

mental deficiencies as nonstatutory mitigation and erred in considering

nonstatutory aggravating factors in violation of the Constitution; (8) he was

deprived of his constitutional rights because the mental health expert retained to

evaluate him before trial failed to conduct a professionally competent and

appropriate evaluation, and the State‟s failure to disclose crucial information

caused defense counsel to render ineffective assistance, thus depriving him of a

fair, individualized, and reliable sentencing proceeding (with three subclaims);

(9) the trial court‟s failure to grant his motions for change of venue and for

individualized sequestered jury voir dire deprived him of his constitutional right to

a fair and impartial jury; and (10) his constitutional rights were violated because no

reliable transcript of his capital trial exists and critical records were not included in

the record on appeal.

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courts and federal district court.8 The Eleventh Circuit denied a certificate of

appealability in Muhammad v. Secretary, Department of Corrections, et al., 554

F.3d 949, 955 (11th Cir. 2009), cert. denied, 559 U.S. 906 (2010), holding that

Muhammad failed to show the denial of a constitutional right in connection with

any of the claims for which he sought the certificate of appealability.

On July 28, 2008, Muhammad filed a successive motion for postconviction

relief in the state circuit court under Florida Rule of Criminal Procedure 3.851,

raising only one claim, a challenge to the constitutionality of Florida‟s lethal

injection procedures which were in effect on that date. Muhammad contended that

the lethal injection procedures created a risk of unnecessary pain and did not call

for a medical determination of unconsciousness, which violated the Eighth

Amendment to the United States Constitution and article I, section 17, of the

Florida Constitution. Muhammad sought an evidentiary hearing to present

testimony of certain DOC personnel and an anesthesiologist who served on the

Governor‟s Commission on Administration of Lethal Injection, which was created

8. The five grounds for which he sought a certificate of appealability were:

(1) he was not competent to stand trial; (2) his rights under Faretta, 422 U.S. 806,

were violated; (3) the trial court abused its discretion when it ruled that he could

not present evidence of insanity; (4) the State interfered with his right to consult

with counsel; and (5) he was denied his right to evidence under Brady v. Maryland,

373 U.S. 83 (1963). See Muhammad v. Sec‟y, Dep‟t. of Corr., 554 F.3d 949, 953

(11th Cir. 2009).

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after the execution of Angel Diaz in 2006. The circuit court summarily denied the

claim without an evidentiary hearing.

On appeal, we affirmed, noting that Muhammad was raising the same claims

and proposing essentially the same evidence that was presented in earlier

proceedings in which we held the same lethal injection procedures to be

constitutional. See Muhammad v. State, 22 So. 3d 538, 2009 WL 3807205 at *1

(Fla. 2009) (table) (citing Tompkins v. State, 994 So. 2d 1072, 1080 (Fla. 2008),

cert. denied, 555 U.S. 1161 (2009); Marek v. State, 8 So. 3d 1123, 1130 (Fla.),

cert. denied, 557 U.S. 960 (2009)). We further stated, “The Court has also

repeatedly rejected Eighth Amendment challenges to Florida‟s August 2007

revised lethal injection protocol.” Muhammad, 22 So. 3d 538, 2009 WL 3807205

at *2 (citing Ventura v. State, 2 So. 3d 194, 198 (Fla.), cert. denied, 129 S. Ct.

2839 (2009); Henyard v. State, 992 So. 2d 120, 130 (Fla.), cert. denied, 129 S. Ct.

28 (2008); Lightbourne v. McCollum, 969 So. 2d 326, 334, 353 (Fla. 2007), cert.

denied, 128 S. Ct. 2485 (2008)).

With this background in mind, we turn to Muhammad‟s successive motion

for postconviction relief filed in the circuit court after Governor Scott signed the

death warrant in this case on October 21, 2013. Pursuant to the circuit court‟s

scheduling order, on October 29, 2013, Muhammad filed a successive motion to

vacate his judgments of conviction and sentence of death in which he raised seven

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claims.9 Muhammad also filed motions for disclosure of public records, discovery,

and for a stay. The State filed responses to the motions and to the postconviction

claims and, on October 31, 2013, the circuit court held a combined motion hearing

and case management conference. The court denied the motions and issued a

written order summarily denying the postconviction claims on November 4, 2013.

Notice of appeal was timely filed.

9. The postconviction claims raised in the circuit court in this proceeding

were: (1) Muhammad is being denied his rights to due process and equal protection

as guaranteed by the Eighth and Fourteenth Amendments to the United States

Constitution and the corresponding provisions of the Florida Constitution because

access to the files and records pertaining to his case in the possession of certain

state agencies have been withheld in violation of chapter 119, Florida Statutes, and

Fla. R. Crim. P. 3.852; (2) the current, revised procedure that the State of Florida

utilizes for lethal injection using midazolam hydrochloride as the first drug

constitutes cruel and unusual punishment in violation of article I, section 17, of the

Florida Constitution and the Eighth Amendment to the United States Constitution;

(3) use of the current three-drug lethal injection procedure, rather than a one-drug

lethal injection procedure, creates a substantial risk of serious harm and thus

constitutes cruel and unusual punishment in violation of the Eighth Amendment to

the United States Constitution; (4) the clemency process in Muhammad‟s case was

applied in an arbitrary and capricious manner and deprived him of due process in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution and corresponding provisions of the Florida Constitution; (5) because

of the inordinate length of time that Muhammad has spent on death row, adding his

execution to that punishment would constitute cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments to the United States

Constitution, and binding norms of international law; (6) portions of the “Timely

Justice Act of 2013,” chapter 2013-216, Laws of Florida, are unconstitutional

because they violate separation of powers in violation of article II, section 3, of the

Florida Constitution; and (7) Muhammad is exempt from execution under the

Eighth Amendment because he suffers from such severe mental illness that death

can never be an appropriate punishment.

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A majority of the Court determined that Muhammad‟s claim as to the

substitution of a new drug, midazolam hydrochloride, as the first drug in the three-

drug lethal injection protocol warranted an evidentiary hearing. We therefore

granted a stay of execution until December 27, 2013, and temporarily relinquished

jurisdiction for the purpose of holding an evidentiary hearing on the sole issue of

the safety and efficacy of the new drug in the lethal injection procedure.10 We also

directed the DOC to produce correspondence and documents that it had received

from the manufacturer of midazolam hydrochloride, including those materials

addressing any safety and efficacy issues.

Pursuant to this Court‟s order, an evidentiary hearing was held on November

21-22, 2013, during which Muhammad presented the testimony of Dr. Mark Heath.

The State presented the testimony of Dr. Roswell Lee Evans and Florida

Department of Law Enforcement (FDLE) Inspector Jonathan Feltgen. Following

the hearing, the circuit court entered an order on November 25, 2013, finding that

midazolam hydrochloride is an FDA-approved drug routinely used as a pre-

anesthetic sedative and as an anesthetic in minor surgical procedures. The circuit

court concluded that the evidence was undisputed that the dosage called for in the

revised lethal injection protocol, 500 milligrams, would induce not only

10. Justice Canady dissented to the relinquishment, joined by Chief Justice

Polston.

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unconsciousness when properly administered, but would also result in respiratory

arrest and ultimately death. The circuit court found that “a properly administered

dosage of 500 milligrams would render a person insensate, and thus, not in any

pain, during the period when the part of the brain that drives breathing stops

working.” The court further found that no evidence was presented that the

movement of William Happ‟s head, noted by some observers during his October

2013 execution under the revised 2013 lethal injection protocol, demonstrated that

he was experiencing any pain or suffering, and Muhammad‟s expert witness

“acknowledged the movement during Happ‟s execution did not mean that he was

actually harmed.” Thus, the circuit court rejected the claim that use of midazolam

hydrochloride as the first drug in the three-drug lethal injection protocol would

result in a substantial risk of serious harm and accordingly held that the protocol

was not unconstitutional.

Jurisdiction has returned to this Court and the parties have submitted

supplemental briefs on this issue. We now consider all pending issues on appeal.

We turn first to Muhammad‟s claim that use of midazolam hydrochloride as the

first drug in Florida‟s 2013 three-drug lethal injection protocol violates the

prohibition against cruel and unusual punishment in the United States Constitution

or the Florida Constitution.11

11. See amend. VIII, U.S. Const.; article I, § 17, Fla. Const.

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ANALYSIS

I. Constitutionality of Florida’s Lethal Injection Procedures

Muhammad contends that prior to the evidentiary hearing on the issue of the

safety and efficacy of midazolam hydrochloride, the circuit court erred in several

respects in its evidentiary rulings. Muhammad contends that the hearing granted to

him was not full and fair because most of his proposed witnesses were stricken, the

subpoenas issued to two news reporters who observed the Happ execution in

October 2013 were quashed, and he was denied a continuance to further prepare

his expert witness, Dr. Mark Heath. However, we conclude that the circuit court

did not abuse its discretion in any of these rulings.

A. Ruling Quashing Journalists‟ Subpoenas and Excluding News Articles

The circuit court quashed subpoenas issued by Muhammad‟s counsel to

Associated Press reporter Brendan Farrington and to Gainesville Sun newspaper

reporter Morgan Watkins based on the qualified journalist‟s privilege set forth in

section 90.5015, Florida Statutes (2013). The court also excluded evidence of

news articles concerning information gathered by the two reporters while they

were observing the October 2013 Happ execution, in which the revised protocol

was followed for the first time. In the articles, the reporters noted that Happ

blinked and moved his head several times in the minutes following introduction of

midazolam hydrochloride.

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The reporters filed motions to quash the subpoenas based on section

90.5015, which creates a qualified journalist‟s privilege against compelled

testimony under certain circumstances. That section provides in pertinent part as

follows:

90.5015. Journalist’s privilege.—

(1) DEFINITIONS.—For purposes of this section, the term:

(a) “Professional journalist” means a person regularly engaged

in collecting, photographing, recording, writing, editing, reporting, or

publishing news, for gain or livelihood, who obtained the information

sought while working as a salaried employee of, or independent

contractor for, a newspaper, news journal, news agency, press

association, wire service, radio or television station, network, or news

magazine. Book authors and others who are not professional

journalists, as defined in this paragraph, are not included in the

provisions of this section.

(b) “News” means information of public concern relating to

local, statewide, national, or worldwide issues or events.

(2) PRIVILEGE.—A professional journalist has a qualified

privilege not to be a witness concerning, and not to disclose the

information, including the identity of any source, that the professional

journalist has obtained while actively gathering news. This privilege

applies only to information or eyewitness observations obtained

within the normal scope of employment and does not apply to

physical evidence, eyewitness observations, or visual or audio

recording of crimes. A party seeking to overcome this privilege must

make a clear and specific showing that:

(a) The information is relevant and material to unresolved

issues that have been raised in the proceeding for which the

information is sought;

(b) The information cannot be obtained from alternative

sources; and

(c) A compelling interest exists for requiring disclosure of the

information.

(3) DISCLOSURE.—A court shall order disclosure pursuant to

subsection (2) only of that portion of the information for which the

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showing under subsection (2) has been made and shall support such

order with clear and specific findings made after a hearing.

(4) WAIVER.—A professional journalist does not waive the

privilege by publishing or broadcasting information.

(5) CONSTRUCTION.—This section must not be construed to

limit any privilege or right provided to a professional journalist under

law.

§ 90.5015 (1)-(5), Fla. Stat. (2013) (emphasis added).

The reporter‟s qualified privilege applies to both confidential and non-

confidential sources, see State v. Davis, 720 So. 2d 220, 222 (Fla. 1998), and in

both criminal and civil cases, see Morris Communications Corp. v. Frangie, 720

So. 2d 230 (Fla. 1998). In order to overcome the privilege, the party must

demonstrate that the journalist‟s information is relevant, that the information

cannot be reasonably obtained from alternative sources, and that a compelling

interest exists requiring disclosure. See § 90.5015(2)(a)-(c), Fla. Stat. (2013);

McCarty v. Bankers Ins. Co., Inc., 195 F.R.D. 39, 47 (N.D. Fla. 1998). The

requirement of a compelling interest has been characterized in different ways, but

in 1958 the Second Circuit Court of Appeals described a compelling interest

sufficient to satisfy the third prong of the test for overcoming the reporter‟s

privilege as information that goes to the “heart of the plaintiff‟s claim.” Garland v.

Torre, 259 F.2d 545, 550 (2d Cir. 1958). The Eleventh Circuit described a

“compelling interest” as one in which the information is “highly relevant,

necessary to the proper presentation of the case, and unavailable from other

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sources.” U.S. v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986) (citing Miller v.

Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980) (finding a compelling

interest where the only way that the claimant could prove his case was with the

protected information)).

In this case, the circuit court found that Muhammad failed to satisfy the

three-prong test for overcoming the qualified privilege. The court concluded that

the information was not relevant to the narrow issue before the court, that

Muhammad failed to exhaust other alternative sources who could provide the same

information, and that he failed to demonstrate a compelling interest. Muhammad

contends that the information was relevant to his claim that midazolam

hydrochloride is not efficacious in anesthetizing the inmate, which is the issue for

which the case was relinquished. He also contends that he could not reasonably

obtain the information from other witnesses because their names were not released,

and that he had a compelling interest in the information because of the

constitutional nature of his claim.

We conclude that the circuit court did not abuse its discretion in quashing

these two subpoenas based on the qualified privilege in section 90.5015. There

were twenty-eight witnesses to the Happ execution. Muhammad failed to explain

why he could not discover the identity of even one of those witnesses other than

through public records requests that were denied him. Further, his own expert

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witness read the news articles in question and was aware of the reports of Happ‟s

movements after introduction of midazolam hydrochloride in the lethal injection

procedure. Dr. Heath did not testify that the movement reported in the articles

indicated Happ was conscious or that the midazolam hydrochloride did not work as

anticipated. He testified instead that movement does not necessarily equate with

consciousness. Further, Dr. Evans gave similar testimony. Thus, Muhammad

failed to demonstrate a compelling interest in disclosure of the information

gathered by the news reporters in the scope of their employment, and failed to

demonstrate that the information, even if relevant to the efficacy of midazolam

hydrochloride, could not have been obtained from alternate sources.

For similar reasons, the circuit court did not reversibly err in denying

admission of the news articles themselves. The articles constituted hearsay. See

Valle v. State, 70 So. 3d 530, 547 (Fla. 2011) (holding that the circuit court did not

err in excluding as inadmissible hearsay the affidavits of two reporters, and

newspaper articles written by them, detailing their accounts of an execution).

Because Muhammad failed to overcome the qualified journalist‟s privilege under

section 90.5015, and because the news articles were inadmissible hearsay, the

circuit court did not abuse its discretion in quashing the subpoenas and in

excluding the articles.

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B. Ruling Striking Witnesses and Denying a Continuance

Muhammad also contends that the circuit court abused its discretion in

striking all of his witnesses except Dr. Heath. Prior to the evidentiary hearing, the

circuit court struck most of Muhammad‟s proposed witnesses, including DOC

attorney David Arthmann; Secretary of DOC Michael Crews; DOC Deputy

Communications Director Misty Cash; Florida State Prison Warden John Palmer;

attorneys D. Todd Doss, Neal Dupree, Roseanne Eckert, Suzanne Keffer, Todd

Sher; Executive Office of the Governor attorney Thomas Winokur; and execution

team members and observers from the Happ execution on October 15, 2013, and

the execution of Darius Kimbrough on November 12, 2013.

On November 19, 2013, the circuit court heard the State‟s motion to compel

the names of proposed defense witnesses who would offer relevant testimony on

the limited issue for which the case was relinquished. Muhammad‟s counsel

indicated that most of the witnesses had been listed in his postconviction motion,

including Arthmann, Cash, and Crews, and that a few more would be added later

that day in a revised list. Because of the compressed time frame for holding the

evidentiary hearing, the circuit court took up the State‟s objections to the testimony

of these three witnesses and granted the motion to strike over Muhammad‟s

objection that he was not prepared to state what relevant testimony they might

offer. The court allowed counsel to file written objections and a statement of the

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relevance of their proposed testimony. In response, Muhammad filed a motion for

rehearing and an objection that he was not required to set forth the relevance of a

witness‟s testimony before calling the witness to testify. In that filing, Muhammad

also explained that he sought to call Secretary Crews to testify about what matters

DOC reviewed before issuing the revised protocol that included midazolam

hydrochloride, and why he represented in a letter to the Governor that the drug will

be safe and efficacious for use in lethal injection. Muhammad said he sought to

call Misty Cash to testify about “research” that she referred to in her statement to

the press on October 14, 2013, in explaining the revised lethal injection protocol

and the DOC‟s opinion that midazolam hydrochloride would not present a

substantial risk of serious harm. Muhammad said he sought to present Arthmann

to testify about his knowledge of any DOC records that would discuss the research

DOC undertook or relied on in revising its lethal injection protocol.

Muhammad filed his final witness list, which included the three DOC

employees, five defense attorneys, a representative of the manufacturer of

midazolam hydrochloride, two journalists, an attorney from the Executive Office

of the Governor, as well as all execution team members, medical personnel, and

FDLE employees who observed or participated in the Happ and Kimbrough

executions.

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In a hearing on November 20, 2013, the circuit court heard argument about

whether a majority of the witnesses should be stricken. After hearing the argument

concerning possible relevance of the witnesses‟ testimony, the circuit court granted

the State‟s motion to strike all the witnesses except Dr. Heath, Juliana Reed or

another representative of Hospira, which manufactures midazolam hydrochloride,

and the two news reporters, Farrington and Watkins. The reporters‟ motions to

quash their subpoenas based on journalist privilege were later granted and

Muhammad was unable to secure the attendance of Reed, so Muhammad‟s only

witness was Dr. Heath.

“It is well settled that „[t]he admissibility of evidence is within the sound

discretion of the trial court, and the trial court‟s determination will not be disturbed

on appellate review absent a clear abuse of that discretion.‟ ” Rimmer v. State, 59

So. 3d 763, 774 (Fla. 2010) (quoting Brooks v. State, 918 So. 2d 181, 188 (Fla.

2005)). We conclude that the circuit court did not abuse its discretion in striking

the witnesses. In our order in this case, we relinquished jurisdiction “for the

narrow purpose of holding an evidentiary hearing solely on Muhammad‟s claim

regarding the efficacy of midazolam hydrochloride as an anesthetic in the amounts

prescribed by Florida‟s protocol.” Just as in Valle, in which we relinquished for

the same reason concerning a change in the first drug in the three-drug protocol,

our concern is focused on evidence relating to whether the drug will sufficiently

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render an inmate unconscious before the administration of the last two drugs. See

Valle, 70 So. 3d at 547. In Valle, we affirmed the court‟s striking of a number of

defense witnesses, including DOC employees, the Secretary of the DOC, and

execution personnel, because their testimony was not relevant to the narrow issue

on relinquishment. This same reason supports the circuit court‟s ruling in this

case. We did not relinquish jurisdiction to determine why DOC chose midazolam

hydrochloride as the first drug in the protocol, we relinquished to determine if the

drug would be safe and efficacious if administered according to the protocols. Nor

did we relinquish to hear what transpired in executions under prior protocols.

Muhammad was given an opportunity to present his medical expert to testify

concerning the safety and efficacy of midazolam hydrochloride and he did so.

Dr. Heath was well aware of news reports and the testimony of FDLE Inspector

Feltgen that in the Happ execution, movement was detected some minutes after the

administration of the drug. Dr. Heath testified fully about the way in which the

drug is used in normal surgical settings and opined that in the dosage required by

the protocols, the drug would render the inmate unconscious in a matter of minutes

and would ultimately lead to the inmate‟s death.

Muhammad also contends that he was not provided all the documents

ordered to be produced by this Court in its relinquishment order. The order

required the DOC to produce correspondence and documents it received from

- 21 -

Hospira concerning the drug‟s use in executions or otherwise, including those

addressing any safety and efficacy issues. The DOC produced two letters from

Hospira objecting to the use of the drug in executions and asking that any

remaining drugs be returned. The DOC did not produce any drug package inserts

or invoices for the purchase of the drug. We find that the DOC‟s interpretation of

the phrase “documents and correspondence” not to include package inserts is a

strained interpretation but any error is harmless.

Muhammad‟s own expert, Dr. Heath, was a direct resource for Muhammad

concerning approved uses of the drug and any safety and efficacy warnings

associated with it. Muhammad contends that the invoices that were not produced

would be relevant in determining whether the drug had expired or was subject to

recall. Again, Muhammad could ascertain through his own witness if midazolam

hydrochloride had ever been recalled. And, even if the invoices could have

indicated when the drug would expire, we find any error in failure to disclose the

invoices to be harmless. The lethal injection protocol expressly requires that a

designated execution team member will purchase the lethal chemicals to be used in

the execution and will “ensure that the lethal chemicals have not reached or

surpassed their expiration dates.” In addition, the protocol calls for the FDLE

monitor to confirm that all lethal chemicals “are correct and current.” We will not

presume that the DOC will violate its own protocol in regard to assuring that the

- 22 -

lethal drugs have not surpassed their expiration dates. Thus, the failure of the

DOC to produce the invoices did not deny Muhammad a full and fair hearing.

Muhammad also contends he was not given a full and fair hearing because

his motion to continue the hearing to allow more time to consult with Dr. Heath

and to prepare his testimony was denied. We disagree. The circuit court did not

abuse its discretion in denying a continuance of the evidentiary hearing.

Muhammad had sufficient time to prepare the witness, who had been identified as

Muhammad‟s expert witness as early as the filing of the postconviction motion in

October 2013. Nor did the fact that Dr. Heath was required to testify by telephone

impair the fairness of the proceedings. The State presented its own medical expert

witness by telephone as well, and the record discloses no difficulty or

complications caused by telephonic testimony of either witness. For all these

reasons, relief is denied on the claim that Muhammad was not provided a full and

fair hearing. The testimony given at the evidentiary hearing is discussed next.

C. Evidentiary Hearing Testimony

At the evidentiary hearing held November 21-22, 2013, Muhammad

presented the testimony of Dr. Heath, a board certified anesthesiologist at the New

York Presbyterian Hospital at Columbia University. In preparation for his

testimony, he reviewed the revised DOC lethal injection protocol, correspondence

from Hospira, news articles by reporters Farrington and Watkins, and the

- 23 -

testimony of FDLE Inspector Feltgen concerning his observations of the Happ

execution. Dr. Heath testified that midazolam hydrochloride is an FDA-approved

drug in the class of drugs called “benzodiazepine.” He testified that it is used in

the operating room as both a pre-anesthetic and an anesthetic to cause sedation and

reduce anxiety, and “in very high doses will completely ablate consciousness.” In

his practice, he uses the drug to make the patient less anxious. A small amount is

administered for this purpose, such as one milligram. To produce a deeper level of

anesthesia, Dr. Heath testified that he would give a dose of 10 or 15 milligrams,

which “in [his] experience, will reliably produce a much deeper level of

unconsciousness.”

Dr. Heath testified that midazolam hydrochloride is generally slower to act

than a barbiturate, but when successfully delivered to the brain will have full

efficacy as an anesthetic. As to the duration of unconsciousness, he explained that

“[i]f you give any of these drugs in a very large dose, such as the doses that are

used in lethal injections, then they will all last for a very long time. They would

last for many hours.” He opined that the dosage of midazolam hydrochloride

called for in the protocol, 500 milligrams, is a much larger dose than that needed to

produce unconsciousness and in that amount would, with certainty, produce death.

When asked about the significance of Happ‟s movement that was observed during

his execution in October 2013, Dr. Heath agreed that movement is not the same as

- 24 -

consciousness and that an unconscious person may still move, although such an

individual might in fact be conscious.

The State presented the testimony of Dr. Roswell Lee Evans, Jr., a

pharmacist, professor of pharmacy, and Dean at Auburn University. He testified

that midazolam hydrochloride is an FDA-approved drug used for induction of

general anesthesia, with a dose of 35 to 40 milligrams for minor surgeries.

Dr. Evans testified that midazolam hydrochloride is quickly absorbed into the

bloodstream when introduced intravenously. If a person were given 250

milligrams, he or she would be rendered unconscious in no more than two minutes;

and that the higher the dose, the longer the person will remain unconscious. He

testified that the dosage called for in the lethal injection protocol, 500 milligrams

given in two separate doses, would cause respiratory arrest and possibly cardiac

arrest, and would render the person insensate or comatose. He also agreed that

movement by a person who was given midazolam hydrochloride would not

indicate consciousness, although he would be surprised if an individual moved

more than five minutes or so after its administration; but he explained that reports

of Happ‟s movement, if observed nine minutes after administration of the drug,

could have been a response to depressed respiration.

Both Dr. Heath and Dr. Evans agreed that the consciousness check called for

in the protocol is critically important. Dr. Evans noted that a consciousness check

- 25 -

using an eyelid tap, such as is done in Florida executions, is also used in surgical

settings and is necessary to measure the depth of unconsciousness. Dr. Heath

opined that because midazolam hydrochloride takes longer to effect

unconsciousness, the Florida protocol should specify an extended period of time

after administration before the consciousness check is performed.

The State also presented the testimony of FDLE Inspector Feltgen, who was

an official monitor for the Happ execution. He testified that during the execution,

he was located in the chemical room, standing next to the person who injected the

drugs, and that he could observe the whole execution chamber through a two-way

mirror. After the first syringe of midazolam hydrochloride was injected, Feltgen

saw Happ breathe heavily four or five times, with his chest rising off of the table.

This action may have gone on through the second syringe of midazolam

hydrochloride. Feltgen observed the warden perform a consciousness check and

saw no movement by Happ. Feltgen testified that Happ‟s execution looked very

similar to the two other executions Feltgen had observed, except for Happ‟s heavy

breathing at the beginning.

D. Order on Relinquishment Regarding Efficacy of Midazolam Hydrochloride

The circuit court ruled after the evidentiary hearing that, based on the

testimony of both Dr. Heath and Dr. Evans, it has been established that midazolam

hydrochloride is an FDA-approved drug routinely used as a pre-anesthetic and as

- 26 -

an anesthetic in minor surgical procedures. The court found that the testimony also

established that the dosage called for in Florida‟s three-drug lethal injection

protocol, 500 milligrams, would induce not only unconsciousness, rendering the

individual insensate and not in any pain, but when properly administered would

ultimately cause death. The circuit court further concluded that the evidence

established that even if Happ moved after administration of midazolam

hydrochloride during his execution in October 2013, such movement does not

equate to pain. We agree that these findings are supported by competent,

substantial evidence. Further, competent, substantial evidence established that

Happ‟s movement, reported by several news reporters whose articles were

reviewed by Dr. Heath prior to his testimony, does not necessarily equate with

consciousness.

In denying Muhammad‟s claim that the use of midazolam hydrochloride as

the first drug violates the Eighth Amendment‟s prohibition against cruel and

unusual punishment, the circuit court held that Muhammad failed to present any

credible evidence that, when administered in the amount called for in Florida‟s

lethal injection protocol, the drug is “sure or very likely to cause serious illness and

needless suffering” and give rise to “sufficiently imminent dangers” under the

standard set forth in the plurality decision of the United States Supreme Court in

Baze v. Rees, 553 U.S. 35, 50 (2008). The Baze decision also pointed out that the

- 27 -

Constitution does not require the avoidance of all risk of pain in carrying out

executions, id. at 47, only that it not present “the sort of „objectively intolerable

risk of harm‟ ” that qualifies as cruel and unusual. Id. at 50.

E. Application of the Law to the Facts

The Supreme Court‟s plurality decision in Baze held that the petitioners in

that case “have not carried their burden of showing that the risk of pain from

maladministration of a concededly humane lethal injection protocol” constitutes

cruel and unusual punishment. Id. at 41. Muhammad makes a similar claim in this

case that, if not properly administered and if the individual‟s level of consciousness

is not properly determined, the use of midazolam hydrochloride will result in

severe and needless suffering when the two subsequent drugs are administered.

However, Dr. Heath agreed that the dosage of midazolam hydrochloride called for

in the protocol, if properly administered together with adherence to the procedures

for determining consciousness, will result in an individual who is deeply

unconscious and who would feel no pain when the remaining drugs are

administered.

We reject Muhammad‟s invitation to presume that the DOC will not act in

accordance with its lethal injection procedures adopted by the DOC.12 The

12. We reject Muhammad‟s characterization of the testimony of FDLE

agent Feltgen, which Muhammad contends shows that the paralytic drug was

injected only thirty seconds after the first injection of midazolam hydrochloride in

- 28 -

sufficiency of those procedures, other than the recent substitution of the midazolam

hydrochloride as the first drug, were previously approved by this Court after a

comprehensive evidentiary hearing in Lightbourne v. McCollum, 969 So. 2d 326

(Fla. 2007). When we relinquished for an evidentiary hearing in Valle to examine

the safety and efficacy of pentobarbital, which had been substituted as the first

drug in the three-drug lethal injection protocol, we reiterated that the portion of

Florida‟s lethal injection protocol ensuring that an inmate will be unconscious prior

to administration of the second and third drugs has not been altered since the

protocol was approved in Lightbourne. Valle, 70 So. 3d at 541 n.12. Under that

protocol, “he will not be injected with the final two drugs, and the execution will

be suspended until Valle is unconscious.”13 Id. In the instant case, as we said in

Valle, the remainder of the protocol has not been revised. We presume that the

DOC will follow its own procedures and Muhammad will not be injected with the

final two drugs until he is unconscious.

the Happ execution, in violation of the protocol. A full reading of Feltgen‟s

testimony, and his recounting of the steps that were followed in the Happ

execution, demonstrate that the DOC followed its protocol in injecting two

syringes of midazolam hydrochloride and a third syringe of saline, and that only

after the consciousness check was performed and unconsciousness determined was

Happ injected with vecuronium bromide.

13. For this same reason, we find no error in the circuit court‟s limitation on

examination of witnesses on matters outside the narrow issue of the safety and

efficacy of midazolam hydrochloride.

- 29 -

We acknowledge that, as we explained in Lightbourne, if the inmate is not

fully unconscious when the second and third drugs, vecuronium bromide and

potassium chloride, are administered, the inmate will suffer pain. See Lightbourne,

969 So. 2d at 351. However, we agree with the circuit court that Muhammad has

not demonstrated that the conditions presenting this risk are “sure or very likely” to

cause serious illness or needless suffering and give rise to “sufficiently imminent

dangers” under the standard set forth in Baze. Thus, we reject his constitutional

challenge to the use of midazolam hydrochloride in the lethal injection procedure.

See also Valle, 70 So. 3d at 540-41 (rejecting challenge to newly-revised protocol

substituting pentobarbital for the first drug in the three-drug protocol because Valle

failed to show that the conditions presenting the risk must be sure or very likely to

cause serious illness and needless suffering and give rise to sufficiently imminent

dangers).

F. Manufacturer‟s Letters

We also reject Muhammad‟s contention that the protocol is unconstitutional

because the manufacturer, Hospira, wrote letters to the DOC expressing its

disagreement with the use of midazolam hydrochloride in executions and

demanding that any of the drug still in the DOC‟s possession be returned. As we

held in Valle, a manufacturer‟s warning against the use of its drug in lethal

injections does not establish a substantial risk of harm, 70 So. 3d at 542, and does

- 30 -

not render the use of the drug unconstitutional. See also Powell v. Thomas, 784 F.

Supp. 2d 1270, 1281 n.7 (M.D. Ala. 2011) (noting that manufacturer‟s opposition

to drug‟s use in lethal injection is not relevant to the issues or the inmate‟s burden),

aff‟d, 641 F.3d 1255 (11th Cir.), cert. denied, Williams v. Thomas, 131 S. Ct. 2487

(2011).

G. One-Drug Protocol

Muhammad also contends that Florida should be required to convert its

lethal injection protocol to a one-drug protocol because a number of other states

have changed to a one-drug protocol, which does not involve a paralytic drug and

does not involve potassium chloride. Muhammad contends that because a one-

drug protocol has been successfully used in other states, is available, and avoids

the risks of pain presented by the second and third drugs, this change to a one-drug

protocol is required, and that Florida‟s failure to use it constitutes cruel and

unusual punishment in light of evolving standards of decency. The State counters

that Florida‟s current protocol does not violate the constitution simply because

other states have altered their method of lethal injection. We agree.

The plurality decision of the Supreme Court in Baze stated that “a

condemned prisoner cannot successfully challenge a State‟s method of execution

merely by showing a slightly or marginally safer alternative.” 533 U.S. at 51. The

plurality decision in Baze also stated:

- 31 -

Permitting an Eighth Amendment violation to be established on

such a showing would threaten to transform courts into boards of

inquiry charged with determining “best practices” for executions, with

each ruling supplanted by another round of litigation touting a new

and improved methodology. Such an approach finds no support in our

cases, would embroil the courts in ongoing scientific controversies

beyond their expertise, and would substantially intrude on the role of

state legislatures in implementing their execution procedures—a role

that by all accounts the States have fulfilled with an earnest desire to

provide for a progressively more humane manner of death.

Id. Baze further cautioned that “the proffered alternative must effectively address

„a substantial risk of serious harm.‟ ” Id. at 52. Thus, before it could be said that

Florida must adopt a one-drug protocol, the current three-drug lethal injection

protocol must be determined to present “a substantial risk of serious harm” under

Baze. That has not been established in this case.

Substantially after the Baze decision in 2008, the Eleventh Circuit rejected a

similar challenge in Pardo v. Palmer, 500 F. App‟x 901, 904 (11th Cir. 2012),

stating:

Pardo‟s allegedly distinguishable contention that “the one-drug

protocol is now constitutionally required” is insufficient to

differentiate this case from Ferguson. We likewise addressed

Ferguson‟s “evolving standards of decency” claim—which Pardo

reiterates here—and found it lacking: “[a]lthough the one-drug

protocol is a feasible alternative that could be readily implemented, „a

condemned prisoner cannot successfully challenge a State‟s method of

execution merely by showing a slightly or marginally safer

alternative.‟ ” See Ferguson, No. 12-15191, 2012 WL 4946112, at *3

(quoting Baze v. Rees, 553 U.S. 35, 51 (2008)). Even if nine of our

sister states have adopted a one-drug protocol, it is not our role to

transform ourselves into a “board[ ] of inquiry charged with

determining the „best practices' for executions.” Baze, 553 U.S. at 51.

- 32 -

Pardo, 500 F. App‟x at 904, cert. denied, 133 S. Ct. 815 (2012). Thus, Florida is

not obligated to adopt an alternative method of execution without a determination

that Florida‟s current three-drug protocol is unconstitutional.

Because we have concluded that Muhammad failed to establish that the

current three-drug lethal injection protocol using midazolam hydrochloride as the

first drug in the procedure presents a serious risk of needless suffering or sufficient

imminent danger in violation of the Eighth Amendment‟s prohibition against cruel

and unusual punishment, and because Muhammad has failed to establish that

Florida must adopt a one-drug lethal injection protocol, we deny relief on this

claim.

II. Clemency Claims

Muhammad next contends that he was denied due process in his clemency

proceedings. He alleges that in the fall of 2011, attorney Linda McDermott was

appointed to represent him in clemency proceedings after being requested to act as

Muhammad‟s clemency counsel at the request of the Florida Parole Commission,

and that she undertook that representation. His postconviction motion alleged that

in January 2012, the Florida Parole Commission filed a motion asking the circuit

court to appoint new clemency counsel for Muhammad. He contended as he does

here that the effort to remove McDermott as his clemency counsel “appeared to be

a calculated effort on behalf of the Office of the Attorney General to interfere with

- 33 -

Muhammad‟s clemency proceeding,” thus making the clemency proceeding a

sham and violating his right to due process.14 He also contended that while in

prison, he had surgery that resulted in complications requiring follow-up treatment

with a specialist, and that this situation raised “a looming question of DOC liability

for the permanent damage done to his vocal cords.” Muhammad was offered a

September 2012 clemency interview and did not attend, based on his interpretation

of his doctor‟s orders concerning the use of his voice. However, his counsel did

submit additional clemency materials to the Office of Executive Clemency for

consideration. By letter dated October 21, 2013, the Office of Executive Clemency

notified Muhammad that clemency had been denied; and the death warrant in this

case indicates that clemency was considered and rejected as not appropriate in this

case. The circuit court summarily denied the claim based on this Court‟s precedent

that the clemency process is solely the prerogative of the Governor.

We explained in Carroll v. State, 114 So. 3d 883 (Fla.), cert. denied, 133 S.

Ct. 2762 (2013), as follows:

14. We note that valid statutory grounds existed upon which removal of

McDermott as clemency counsel could have been sought. Chapter 940, Florida

Statutes (2011), pertains to executive clemency. Section 27.711(11), Florida

Statutes (2011), sets forth a prohibition for postconviction counsel appointed under

chapter 27, such as McDermott, to represent defendants in chapter 940 proceedings

and certain other proceedings—prohibitions that this Court has upheld. See, e.g.,

Darling v. State, 45 So. 3d 444, 455 (Fla. 2010) (upholding prohibitions in statute).

- 34 -

The clemency process in Florida derives solely from the Florida

Constitution and we have recognized that the people of the State of

Florida have vested “sole, unrestricted, unlimited discretion

exclusively in the executive in exercising this act of grace.” Sullivan

v. Askew, 348 So. 2d 312, 315 (Fla. 1977).

....

We have previously rejected similar challenges to the clemency

process. In Pardo v. State, 108 So. 3d 558, 568 (Fla.), cert. denied,

133 S. Ct. 815 (2012), we rejected the clemency claim in large part

because it is not this Court‟s prerogative to second-guess the

executive branch on matters of clemency in capital cases. In

Johnston, we rejected an identical clemency claim and stated:

We also noted in Marek v. State, 14 So. 3d 985

(Fla. 2009), after Marek raised a second challenge to the

clemency process, that “five justices of the United States

Supreme Court concluded [in Ohio Adult Parole

Authority v. Woodard, 523 U.S. 272 (1998)] that some

minimal procedural due process requirements should

apply to clemency . . . [b]ut none of the opinions in that

case required any specific procedures or criteria to guide

the executive‟s signing of warrants for death-sentenced

inmates.” Marek, 14 So. 3d at 998. We again conclude

that no specific procedures are mandated in the clemency

process and that Johnston has been provided with the

clemency proceedings to which he is entitled.

Johnston, 27 So. 3d at 25-26 (emphasis added). See also Valle, 70 So.

3d at 551 (rejecting claim that clemency proceeding did not serve the

“fail safe” purpose for which clemency is intended); Rutherford v.

State, 940 So. 2d 1112, 1122-23 (Fla. 2006) (denying a clemency

claim because the defendant had a hearing and because clemency is an

executive function); Bundy v. State, 497 So. 2d 1209, 1211 (Fla.

1986) (stating that it is not this Court‟s “prerogative to second-guess

the application of this exclusive executive function”).

Id. at 888-89 (additional emphasis added).

- 35 -

Muhammad rejected the opportunity for a clemency interview in September

2012 based on what the record reflects to be his own misunderstanding of medical

advice about the use of his voice. In signing the death warrant in this case, the

Governor indicated that clemency has been considered and rejected. Clemency is

solely the prerogative of the Governor. No specific procedures are required in

clemency proceedings, and Muhammad‟s allegations do not support a claim that

the circumstances surrounding his clemency denied him minimal procedural due

process. Therefore, the circuit court did not err in summarily denying

Muhammad‟s claim that the clemency proceedings in this case were flawed.

III. The “Timely Justice Act of 2013”

In his postconviction motion, Muhammad challenged portions of the

“Timely Justice Act of 2013” (the Act),15 in which the Legislature amended a

number of statutes relating to certain aspects of capital postconviction

representation and the issuance of death warrants in capital cases. Muhammad

challenges the constitutionality of amendments to section 922.052, Florida

Statutes, that direct the Clerk of this Court to certify in writing to the Governor that

a person sentenced to death has completed direct appeal and initial postconviction

proceedings in state court and habeas corpus proceedings and appeal therefrom in

federal court, or has allowed that time to expire. See § 922.052(2)(a)1. & (a)2.,

15. Ch. 2013-216, Laws of Florida, effective July 1, 2013.

- 36 -

Fla. Stat. (2013). He also challenges as unconstitutional the amendments to

section 922.052 directing the Governor to sign a death warrant within thirty days

after receiving the certification from the Clerk of the Florida Supreme Court “if

the executive clemency process has concluded, [and] directing the warden to

execute the sentence within 180 days, at a time designated in the warrant.”

§ 922.052(2)(b), Fla. Stat. (2013). The amendments further provide that if the

Governor determines that the Clerk has not complied with subsection (2)(a), the

Governor may sign a warrant of execution for any person “where the executive

clemency process has concluded.” § 922.052(2)(c), Fla. Stat. (2013). The

remainder of section 922.052 remains unchanged. Muhammad contends that the

amendments are unconstitutional encroachments on this Court‟s authority, on the

rights of postconviction defendants, and on the sole authority of the Governor in

matters of clemency and issuance of death warrants; thus, he contends, his death

warrant cannot stand. The circuit court denied the claim and concluded the

amendments were not unconstitutional.

We do not reach Muhammad‟s constitutional challenge to the amendments

to section 922.052 pursuant to the Act. The Office of Executive Clemency

initiated Muhammad‟s clemency proceeding in September 2012, long before

passage of the Act, and that office accepted follow-up documents as to clemency

for several months thereafter. It cannot be said that Muhammad‟s death warrant

- 37 -

would not have been signed but for the Act. Moreover, because it is not this

Court‟s prerogative to inquire into the basis on which the Governor signed any

individual death warrant, we cannot presume that signing Muhammad‟s death

warrant was prompted by the Act or by the letter sent by the Supreme Court Clerk

to the Governor, which contained a list of many names other than Muhammad‟s.

For these reasons, we conclude that it is inappropriate and unnecessary for this

Court, or the trial court, to reach the issue of the constitutionality of any portion of

the Act in this successive postconviction proceeding or to strike the death warrant

in this case based on Muhammad‟s claim. Because we do not reach the issue, our

affirmance of the circuit court‟s denial of postconviction relief in this appeal is not

a ruling on the merits concerning the constitutionality of any portion of the Act.

We turn next to the public records claim that Muhammad raised in this proceeding.

IV. Public Records

Muhammad contends that he was wrongfully denied access to public records

under two different subsections of Florida Rule of Criminal Procedure 3.852 and

under chapter 119, Florida Statutes. He contends that certain requested records

were required to be produced under rule 3.852(h)(3), which allows a request within

ten days after a death warrant is signed of records from those persons and agencies

from whom records were previously requested. He also contends that additional

records requested under 3.852(i), which allows requests from new agencies or

- 38 -

persons, should have been provided because they were necessary and relevant to

both framing his postconviction claims and prosecuting his claims.

This Court has held that denial of public records requests are reviewed under

the abuse of discretion standard. See Dennis v. State, 109 So. 3d 680, 698 (Fla.

2012); Diaz v. State, 945 So. 2d 1136, 1149 (Fla. 2006). “Discretion is abused

only when the judicial action is arbitrary, fanciful, or unreasonable, which is

another way of saying that discretion is abused only where no reasonable person

would take the view adopted by the trial court.” State v. Coney, 845 So. 2d 120,

137 (Fla. 2003) (quoting White v. State, 817 So. 2d 799, 806 (2002)). The Court

has long acknowledged that the public records procedure under Florida Rule of

Criminal Procedure 3.852 “is not intended to be a procedure authorizing a fishing

expedition for records unrelated to a colorable claim for postconviction relief.”

Valle, 70 So. 3d at 549 (quoting Moore v. State, 820 So. 2d 199, 204 (Fla. 2002)

(quoting Glock v. Moore, 776 So. 2d 243, 253 (Fla. 2001))).

Rule 3.852(h)(3) provides that within ten (10) days after the signing of a

death warrant, a records request may be made to a person or agency from whom

collateral counsel has previously requested records. The rule provides that upon

such request, a person or agency shall copy, index, and deliver to the records

repository “any public record” (A) that was not previously the subject of an

objection; (B) that was received or produced since the previous request; or (C) that

- 39 -

was, for any reason, not produced previously. See Fla. R. Crim. P. 3.852(h)(3)(A)-

(C). If none of the grounds are present for production, the rule requires that the

person or agency shall file an affidavit stating that no other records exist and that

all public records have been produced previously. We have previously held that

this discovery tool is not intended to authorize a “fishing expedition” unrelated to a

colorable claim for postconviction relief. See Sims v. State, 753 So. 2d 66, 70

(Fla. 2000). We have noted that requests for records under rule 3.852(h)(3) may be

denied as far exceeding the scope of subsection (h)(3) if they are overbroad, of

questionable relevance, and unlikely to lead to discoverable evidence. See Mills v.

State, 786 So. 2d 547, 552 (Fla. 2001); see also Rutherford v. State, 926 So. 2d

1100, 1117 (Fla. 2006) (affirming denial of records under rule 3.852(h)(3) because

no prior requests were made and because the records are not related to a colorable

claim for postconviction relief).

Muhammad requested public records under rule 3.852(h)(3) from the DOC;

Medical Examiner William Hamilton, M.D.; the FDLE; the State Attorney for the

Eleventh Judicial Circuit (Miami); and the State Attorney for the Eighth Judicial

Circuit (Bradford County).16 In each of these requests, Muhammad asked for “any

16. The representative for the offices of the State Attorneys from whom

records were requested advised the court that they had no documents relevant to

the request. Records were also requested under rule 3.852(h)(3) from the Miami-

Dade Police Department, but that office filed an affidavit stating that a records

review had been undertaken and all records had been previously provided.

- 40 -

files, records, reports, letters, memoranda, notes, drafts and/or electronic mail in

the possession or control of your agency pertaining to Mr. Muhammad that were

received or produced by your agency since Mr. Muhammad‟s previous request;

and/or any documents that were, for any reason, not produced previously.” The

circuit court denied Muhammad‟s motion to compel these entities to produce the

requested records. We conclude that with one exception, the court did not abuse

its discretion in denying the motion. The requests are overly broad and

Muhammad did not clearly demonstrate how the records were relevant to a

colorable claim. However, we conclude that the circuit court abused its discretion

in denying Muhammad his own inmate and medical records. The record reflects

that Muhammad‟s counsel had made previous requests for these records from the

DOC, and in this proceeding he sought an update of his inmate and medical files.

He also supported the request with the explanation that such records would be

relevant to a potential, colorable claim concerning Muhammad‟s mental health.

Because Florida law provides that only after a death warrant is signed, an

inmate may petition the Governor to determine if he or she is insane and therefore

not competent to be executed, we find that Muhammad‟s inmate and medical

records are relevant to such a potential claim and should have been produced.17

17. See § 922.07, Fla. Stat. (2013); Fla. R. Crim. P. 3.811 and 3.812. “In

order for insanity to bar execution, the defendant must lack the capacity to

understand the nature of the death penalty and why it was imposed.” Ferguson v.

- 41 -

Accordingly, we direct the DOC to immediately provide Muhammad‟s counsel

with those portions of his inmate and medical files that have been received or

produced since Muhammad‟s previous requests, or for whatever reason were not

previously produced.

Muhammad also sought records under Florida Rule of Criminal Procedure

3.852(i), which allows a capital defendant to request additional public records, that

are not required to be from agencies or persons from whom records were

previously requested. Under subdivision (i), the defendant must demonstrate:

(A) that counsel has made a timely and diligent search of the repository;

(B) counsel‟s affidavit identifies with specificity those additional public records

that are not at the repository; (C) that the additional public records are either

relevant to the subject matter of the proceeding under rule 3.851 or appear

reasonably calculated to lead to discovery of admissible evidence; and (D) the

additional records request is not overly broad or unduly burdensome. We have

held that “a defendant must show how the requested records relate to a colorable

claim for postconviction relief and good cause as to why the public records request

was not made until after the death warrant was signed.” Mann v. State, 112 So. 3d

1158, 1163 (Fla. 2013).

State, 112 So. 3d 1154, 1156 (Fla.) (quoting Johnston v. State, 27 So. 3d at 26 n.8,

cert. denied, 133 S. Ct. 498 (2012)).

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Under subsection (i) of rule 3.852, Muhammad sought additional records

from the DOC;18 the FDLE; William Hamilton, M.D., medical examiner;19 Office

of Attorney General Pamela Bondi; the Office of the Governor; and the Office of

18. From the DOC and the FDLE, Muhammad sought voluminous records

which he alleged were relevant to his claim challenging the revised method of

lethal injection and to the process by which the September 9, 2013, revised lethal

injection protocol was promulgated, including, but not limited to, the new lethal

injection procedures, literature and research reviewed, communication with the

Office of the Attorney General, Governor, any outside experts, other states, and the

federal government; records relating to training exercises, including logs,

checklists, and sign-in sheets from January 1, 2010, to the present; records relating

to any correspondence with any Florida agency from January 1, 2010, to the

present relating to the acquisition of pentobarbital, vecuronium bromide, potassium

chloride, and midazolam hydrochloride; records relating to communication with

any other department of corrections in any other state regarding lethal injection

protocols from January 1, 2010, to the present; records regarding the purchase,

storage, maintenance, use, distribution, and disposal of pentobarbital and/or

midazolam hydrochloride that show compliance with the Federal Controlled

Substance Act and Florida Statutes, chapters 828, 893, and 464; records showing

the manufacturer and distributor of lethal injection drugs including package inserts,

instructions, date of manufacture, shelf life of midazolam hydrochloride,

pentobarbital, vecuronium bromide, and potassium chloride currently possessed by

the DOC; records of executions by lethal injection of Schwab, Henyard, Tompkins,

Marek, Grossman, Valle, Chandler, Waterhouse, D. Gore, Pardo, Mann, Carroll,

Van Poyck, M. Gore, and Happ; and records indicating personnel changes or

formal or informal changes to the unwritten procedures or customary practices

testified to by DOC personnel in the litigation in Lightbourne in 2007.

19. From William Hamilton, M.D., medical examiner, Muhammad

requested additional records under 3.852(i) including but not limited to post-

execution photographs and examinations performed on executed inmate Happ,

autopsy narrative reports, notes, diagrams, photos, and toxicology studies.

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Executive Clemency, Florida Parole Commission.20 The circuit court denied all of

Muhammad‟s records requests under rule 3.852(i). We conclude that the denial of

these records was not an abuse of discretion.

The DOC contended that the records request they received from Muhammad

was overbroad and burdensome, and did not appear to relate to, and would not lead

to, a colorable claim. The State also contended that information concerning the

source of the drugs has been held not to present a cognizable lethal injection claim.

See Pardo v. State, 108 So. 3d 558, 565-66 (Fla.), cert. denied, 133 S. Ct. 815

(2012); Valle, 70 So. 3d at 549. We agree that the voluminous request was

overbroad and burdensome, and the possible relevance to a colorable claim was not

established. Further, requests related to actions of lethal injection personnel in past

executions do not relate to a colorable claim concerning future executions because

there is a presumption that members of the executive branch will perform their

duties properly. See Valle, 70 So. 3d at 549. Moreover, as to the request for

20. Muhammad requested additional records relating to clemency materials

in his own case which were in the Attorney General‟s custody or possession since

January 1, 2010, including correspondence, e-mails, reports, summaries,

newspaper articles, transcripts of hearings, research, notes or any other document,

photograph, or recording that was received or sent from any representative of the

Office of the Attorney General relating to clemency for Muhammad. Muhammad

requested the same additional records from the Office of the Governor under rule

3.852(i). And, the same additional records were requested from the Office of

Executive Clemency, Florida Parole Commission.

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records of all the executions since that of inmate Schwab, no error has been shown.

We held in Valle that the circuit court did not err in denying records of the DOC‟s

executions of the last five inmates. Id. For all these reasons, the circuit court did

not abuse its discretion in denying the voluminous public records request to the

DOC.

Muhammad requested a long list of additional records from the FDLE under

3.852(i) similar to his request to the DOC. The circuit court ruled that the records

request to FDLE was overbroad and burdensome, and generally as to all records

requested pertaining to lethal injection, that the requested records would not lead to

a colorable claim. For the same reasons set forth above concerning records

requested from the DOC under rule 3.852(i), we find no abuse of discretion.

The lower court denied the records request to the medical examiner and

concluded that the autopsy records sought from Dr. Hamilton were not related to a

colorable claim that use of midazolam hydrochloride rendered the lethal injection

protocol unconstitutional. Muhammad has not explained how autopsy photographs

and reports concerning Happ could disclose at what point Happ was rendered

unconscious or whether he experienced pain by virtue of the alleged inefficacy of

midazolam hydrochloride. Denial of these records was not error.

The circuit court also denied disclosure of all the clemency-related records

requested by Muhammad on the grounds that the requests were overbroad and not

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related to a colorable claim. We conclude that denial of access, or failure to

compel access, to the clemency records was not an abuse of discretion. First,

clemency files and records are not subject to chapter 119 disclosure and are exempt

from production in a records request filed in a postconviction proceeding. See

King v. State, 840 So. 2d 1047, 1050 (Fla. 2003); Roberts v. Butterworth, 668 So.

2d 580, 582 (Fla. 1996). In addition, the records would not relate to a colorable

claim because we have held many times that claims challenging clemency

proceedings are meritless. “The clemency process in Florida derives solely from

the Florida Constitution and we have recognized that the people of the State of

Florida have vested „sole, unrestricted, unlimited discretion exclusively in the

executive in exercising this act of grace.‟ ” Sullivan, 348 So. 2d at 315; see also

Carroll, 114 So. 3d at 888-89 (holding clemency claim without merit because the

Court will not second-guess the executive on matters of clemency); Pardo, 108 So.

3d at 568 (rejecting clemency claim in large part because it is not this Court‟s

prerogative to second-guess the executive branch on matters of clemency in capital

cases). Thus, because the clemency files are confidential and the claim

challenging the clemency process is without merit, the denial of records from the

Office of the Governor, the Office of the Attorney General, and the Parole

Commission was not an abuse of discretion.

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V. Discovery Motions

Muhammad contends that the circuit court erred in denying his discovery

motions relating to his claim that the revised lethal injection protocol presents a

risk of serious harm. The motions also sought an order requiring the DOC to

identify all members of the execution team when Happ was executed; that the

DOC identify all persons with any responsibility in drafting the revised lethal

injection protocol issued September 9, 2013; to allow a deposition of medical

examiner William Hamilton, M.D.; to identify the manufacturer of midazolam

hydrochloride, vecuronium bromide, and potassium chloride used in Florida lethal

injections, and the lot numbers and expiration dates of these drugs that are

available for use in lethal injection.

Muhammad requested discovery concerning Happ‟s and Kimbrough‟s

executions. Muhammad sought access to the November 12, 2013, execution and

autopsy of Darius Kimbrough by motion in which he requested an order allowing

him to send a photographer to videotape the execution, to send a witness to view

the execution, to allow a qualified expert to have access to Kimbrough during the

execution to monitor his physiological responses throughout the execution, and to

permit an expert to have access to Kimbrough‟s body after the execution to

perform a complete autopsy or, in the alternative, an order allowing a person to

attend and photograph the autopsy of Kimbrough. The circuit court denied the

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discovery request without explanation on November 4, 2013, after hearing

argument at the October 31, 2013, case management conference. The circuit court

did not abuse its discretion in denying these discovery requests.

As to the availability and scope of discovery in postconviction proceedings,

this Court explained in Rodriguez v. State, 919 So. 2d 1252 (Fla. 2005):

In State v. Lewis, 656 So. 2d 1248, 1249 (Fla. 1994), this Court

held that it is within the trial judge‟s inherent authority to allow

limited prehearing discovery during postconviction proceedings. We

set forth the following parameters for such discovery: the motion

seeking discovery must set forth good reason; the court may grant

limited discovery into matters which are relevant and material; the

court may set limits on the sources and scope of such discovery; and

on review of orders limiting or denying discovery, the moving party

has the burden of showing an abuse of discretion. Id. at 1250 (quoting

Davis v. State, 624 So. 2d 282 (Fla. 3d DCA 1993), and adopting

procedures established therein). In deciding whether to allow this

limited form of discovery, the trial judge must consider “the issues

presented, the elapsed time between the conviction and the

postconviction hearing, any burdens placed on the opposing party and

witnesses, alternative means of securing the evidence, and any other

relevant facts.” Id. Our opinion did not expand the discovery

procedures established in Florida Rule of Criminal Procedure 3.220,

which governs discovery, nor was the opinion to be interpreted as

automatically allowing discovery in postconviction proceedings. We

further cautioned that a trial judge‟s inherent authority to permit

postconviction discovery “should be used only upon a showing of

good cause.” Id.

Id. at 1279. Thus, when discovery is allowed, it is limited discovery which is

relevant and for which the movant demonstrates good cause.

As to the request that Muhammad be allowed to send persons to witness and

photograph the Kimbrough execution, the circuit court did not abuse its discretion

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in denying that request. As the State points out, the execution chamber is small

and any additional personnel could interfere with the orderly and proper

administration of the lethal injection. Moreover, Florida law sets forth who may be

allowed to view an execution. Section 922.11(2), Florida Statutes (2013), provides

that twelve citizens selected by the warden may view the execution, along with

counsel for the inmate, and ministers requested by the inmate. News media may

be present under rules approved by the Secretary of the DOC, and “[a]ll other

persons, except prison officers and correctional officers, shall be excluded during

the execution.” Thus, denial was not an abuse of discretion.

It was also within the court‟s sound discretion to deny Muhammad the right

to have his own expert autopsy Kimbrough and to deny videotaping of the

Kimbrough autopsy as well. Section 922.11(3), Florida Statutes (2013), provides

that the body of an executed person shall be delivered to the medical examiner for

an autopsy. Muhammad did not demonstrate good cause for the right to perform a

substitute or a second autopsy on Kimbrough. In addition, having additional

persons in the room videotaping could interfere with the orderly administration of

the autopsy.

As to denial of Muhammad‟s discovery request for an order identifying and

allowing depositions of all members of the execution team and any other persons

present when Happ was executed, the court did not abuse its discretion. First, this

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request was overbroad, and Muhammad did not demonstrate how knowing the

identities of these persons, or even being able to call them as witnesses, would be

necessary and relevant to a colorable lethal injection claim concerning the safety

and efficacy of midazolam hydrochloride. Second, section 945.10 (g), Florida

Statutes (2013), makes the identity of the executioner and any persons preparing,

dispensing, or administering lethal injection confidential. The provisions of

section 945.10 which protect the confidentiality of the identity of members of the

execution team have been upheld as constitutional and the Court has subsequently

declined to recede from that ruling. See Henyard v. State, 992 So. 2d 120, 130

(Fla. 2008) (citing Bryan v. State, 753 So. 2d 1244, 1250 (Fla. 2000)). Muhammad

has not demonstrated good cause for this veil of confidentiality to be lifted, nor has

he demonstrated that relevant information could be obtained from any other

persons involved in the process who are not covered by statutory confidentiality.

Under the limited rights to discovery outlined in Lewis and Rodriguez above, and

in light of the legislatively accorded confidentiality rights of members of the

execution team, Muhammad‟s fishing expedition for information from the

execution team and any other persons present was properly denied.

Muhammad also contends that the circuit court abused its discretion in

denying discovery of persons with any responsibility in drafting the revised lethal

injection protocol issued September 9, 2013. The record is clear that Muhammad

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had a copy of the September 9, 2013, revised lethal injection procedures. Based on

comparison of the current revised protocol with the protocol immediately

preceding it, Muhammad is able to determine the revisions made in the protocol.

The proper issues before the lower court did not include the reasons why the DOC

chose midazolam hydrochloride as the new first drug in the protocol—the proper

issue was the safety and efficacy of the drug as an anesthetic. Discovery sought

from persons with responsibility in drafting the revised lethal injection protocol

was not relevant to the claims before the court. The circuit court did not abuse its

discretion in the denying this discovery request.

Muhammad was also denied the right to depose William Hamilton, M.D.,

chief medical examiner for the Eighth District. In his brief, Muhammad simply

argues this deposition, along with all the other information sought in his discovery

request, was proper because he had pending a lethal injection claim. This

unspecific justification does not meet the requirements of Lewis to support a

circuit court‟s limited ability to order discovery in postconviction proceedings. No

error has been shown in denial of this deposition.

Finally, Muhammad contends the circuit court abused its discretion in

refusing to order the DOC to disclose the manufacturers of the lethal injection

drugs used in Florida executions, together with the lot numbers and expiration

dates. No abuse of discretion has been shown. We have held that the source of the

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drugs used in lethal injection is of questionable relevance to a colorable Eighth

Amendment claim. See Valle, 70 So. 3d at 549. The same principle would apply

to the drugs‟ lot numbers and expiration dates. Moreover, this Court will presume

that the DOC will act in accordance with its protocol and carry out its duties

properly. See, e.g., id. This same presumption would extend to presume that the

DOC will obtain viable versions of the drugs it intends to use and confirm before

use that the drugs are still viable, as the protocol requires. Muhammad has failed

to demonstrate any necessity and relevance sufficient to require the circuit court, in

its ability to order limited discovery in postconviction proceedings, to allow

discovery of this information.

For the foregoing reasons, Muhammad has failed to demonstrate abuse of

discretion in denial of his discovery requests or in denial of any of his public

records requests, other than for his own inmate and medical records from the DOC,

which we have ordered to be immediately produced.

VI. Length of Time on Death Row

Muhammad next contends that adding execution to the lengthy period of

time he has served on death row constitutes cruel and unusual punishment and

violates the binding norms of international law. He has been on death row for over

three decades for this particular murder. We have repeatedly rejected this same

claim. This Court has recognized that “[n]o federal or state court has accepted the

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argument that a prolonged stay on death row constitutes cruel and unusual

punishment, especially where both parties bear responsibility for the long delay.”

Pardo, 108 So. 3d at 569 (quoting Valle, 70 So. 3d at 552 (quoting Tompkins, 994

So. 2d at 1085)). The claim that execution after a lengthy time on death row

violates binding norms of international law has also been repeatedly rejected. See,

e.g., Carroll, 114 So. 3d at 889 (“[T]his Court has repeatedly rejected similar

claims that imposition of the death sentence after an extended period of time on

death row constitutes cruel and unusual punishment or that it violates binding

norms of international law.”); Gore v. State, 91 So. 3d 769, 780 (Fla.) (rejecting

claim that adding execution to the twenty-three years Gore spent on death row

constitutes cruel and unusual punishment and violates “binding norms of

international law.”), cert. denied, 132 S. Ct. 1904 (2012).

Muhammad attempts to distinguish his circumstances from the normal case

where an inmate is kept for a lengthy period of time on death row. However, the

fact that he was placed in special solitary confinement after murdering a

correctional officer while on death row does not provide a sufficient distinguishing

basis for this Court to depart from its established precedent on this issue. Relief

was properly denied on this claim.

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VII. Whether Mental Illness Should Bar Execution

In his last issue on appeal, Muhammad contends that his mental illness

places him within the class of persons, similar to those under the age of eighteen at

the time of the crime and those with mental retardation, who are categorically

excluded from being eligible for the death penalty.21 His argument is based on the

principles set forth in Roper v. Simmons, 543 U.S. 551, 578-79 (2005), which held

that the death penalty is unconstitutional for defendants who were under the age of

eighteen at the time of the crime, and Atkins v. Virginia, 536 U.S. 304, 321 (2002),

which held that the death penalty is unconstitutional for mentally retarded

defendants. He contends that the principles set forth in these cases should be

extended to the class of persons such as Muhammad who suffer from mental

illness, on the ground that such persons are less morally culpable and, that under

the “evolving standards of decency that mark the progress of a maturing society,”

Trop v. Dulles, 356 U.S. 86, 101 (1958), their mental illness should bar execution.

This Court has rejected similar claims on the merits in the past. See, e.g.,

Carroll, 114 So. 3d at 886-87 (holding that similar claims that mental illness bars

the death penalty have been rejected on the merits); Simmons v. State, 105 So. 3d

475, 511 (Fla. 2012) (holding claim that persons with mental illness must be

21. It has been reported that Muhammad suffered from schizophrenia and

paranoia.

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treated similarly to those with mental retardation due to reduced culpability to be

without merit); Barwick v. State, 88 So. 3d 85, 106 (Fla. 2011) (noting that “the

Court has expressly rejected the argument that Roper extends beyond the Supreme

Court‟s pronouncement that the execution of an individual who was younger than

eighteen at the time of the murder violates the eighth amendment”); Johnston, 27

So. 3d at 26 (finding no merit in the claim that mentally ill persons are similar to

and should be treated the same as juvenile murderers who are exempt from

execution); Lawrence v. State, 969 So. 2d 294, 300 n.9 (Fla. 2007) (rejecting

assertion that the Equal Protection Clause requires extension of Atkins to the

mentally ill due to their reduced culpability). For these reasons, summary denial of

relief on this claim was proper.

CONCLUSION

Based on the foregoing, we affirm the order of the circuit court denying

Muhammad‟s successive postconviction claims,22 but we reverse the order of the

circuit court denying Muhammad disclosure of his own inmate and medical

records. Therefore, the Florida Department of Corrections is hereby ordered to

immediately provide Muhammad‟s counsel with copies of Muhammad‟s inmate

22. As noted earlier, the constitutionality of the amendments to section

922.052, Florida Statutes (2013), is not determined in this proceeding and our

affirmance of the circuit court‟s denial of postconviction relief is not a ruling on

the merits concerning the constitutionality of any portion of the “Timely Justice

Act of 2013.”

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and medical records that have been compiled since that agency previously

provided records to Muhammad. No rehearing will be entertained by this Court

and the mandate shall issue immediately. We hereby lift the temporary stay

imposed by this Court on November 18, 2013.

It is so ordered.

PARIENTE, QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

CANADY, J., concurs in part and dissents in part with an opinion in which

POLSTON, C.J., concurs.

CANADY, J., concurring in part and dissenting in part.

I would affirm the circuit court‟s order in its entirety. I therefore dissent

from the majority‟s reversal on the claim regarding Muhammad‟s inmate and

medical records. With respect to that claim, I would conclude that the records are

not relevant to any colorable claim cognizable in this proceeding.

I concur in the lifting of the temporary stay.

POLSTON, C.J., concurs.

An Appeal from the Circuit Court in and for Bradford County,

Phyllis M. Rosier - Case No. 80-341-CFA

Linda McDermott and Martin J. McClain of McClain & McDermott, P. A., Estero,

Florida,

for Appellant

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Pamela Jo Bondi, Attorney General, and Sandra S. Jaggard, Assistant Attorney

General, Miami, Florida,

for Appellee

Gregg D. Thomas and Rachel E. Fugate of Thomas & LoCicero PL, Tampa,

Florida,

for Media Appellees, Brendan Farrington of the Associated Press and

Morgan Watkins of The Gainesville Sun

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