Petition for Writ of Certiorari — Robert Joe Long, Petitioner v. Florida
Supreme Court briefMay 20, 2019
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Case No. _________________
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 2019
BOBBY JOE LONG,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent
PETITION FOR WRIT OF CERTIORARI –
OPINION AFFIRMING ORDER DENYING THIRD
SUCCESSIVE POSTCONVICTION MOTION
ON PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
DEATH WARRANT ISSUED
EXECUTION SET FOR MAY 23, 2019
ROBERT A. NORGARD
For the Firm
Norgard, Norgard & Chastang
Fla. Bar No. 322059
COUNSEL OF RECORD FOR
PETITIONER
P.O. Box 811
Bartow, FL 33831
863-533-8556
Fax 863-533-1334
norgardlaw@verizon.net
CAPTIAL CASE
DEATH WARRANT ISSUED
EXECUTION SET FOR
MAY 23, 2019
QUESTIONS PRESENTED
QUESTION I
WHETHER
THE
FLORIDA
DEPARTMENT
OF
CORRECTION’S
RESTRICTIONS ON MR. LONG’S EXECTUION WITNESS AND
REFUSING TO ALLOW HIM TO HAVE A NON-CLERGYMAN AS HIS
SECOND WITNESS VIOLATES THE FIRST, FIFTH, SIXTH, AND
FOURTEENTH
AMENDMENTS
OF
THE
UNITED
STATES
CONSTITUION?
QUESTION II
WHETHER THE FLORIDA SUPREME COURT DECISION HOLDING
MR. LONG IS NOT ENTILTED TO A NEW PENATLY PHASE
PURSUANT TO HURST v. FLORIDA AND HURST v. STATE
VIOLATES THE SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS
WHERE THE DENIAL OF RELIEF IS ARBITRARY AND CAPRICIOUS
AND CAUSES DISPARATE TREATMENT BETWEEN SIMILARLY
SITUATED DEFENDANTS?
QUESTION III
WHETHER THE FLORIDA SUPREME COURT DECISION UPHOLDING
MR. LONG’S EXECUTION WITH ETOMIDATE AND HOLDING THAT
MR. LONG WAS NOT ENTITLED TO AN EVIDENTAIRY HEARING ON
THE CONSTITUTIONALITY OF FLORIDA’S LETHAL INJECTION
PROTOCOL AND DENYING HIM THE OPPORTUNITY TO PRESENT
EVIDENCE NOT PREVIOUSLY CONSIDERED BY THE STATE COURTS
OF FLORIDA RESULTED IN A VIOLATION OF THE FIFTH,
EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION?
i
QUESTION IV
WHETHER MR. LONG’S EXECTUION AFTER THIRTY YEARS ON
DEATH ROW CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT
UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE
UNITED STATES CONSTITUTION?
ii
TABLE OF CONTENTS
PAGE NO.
QUESTIONS PRESENTED
i
TABLE OF CONTENTS
iii
TABLE OF CITATIONS
iv
TABLE OF OTHER AUTHORITIES
vii
OPINION BELOW
1
JURISDICTION
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
3
STATEMENT OF THE CASE
5
REASONS FOR GRANTING THE WRIT
16
CONCLUSION
40
APPENDIX
[A] Opinion of the Florida Supreme Court
[B] Prior opinions of the Florida Supreme Court
in this case.
[C] Letter dated April 29, 2019 sent to DOC
[D] Letter dated May 9, 2019 received from DOC
[E] Florida Supreme Court order in Owen v. State
[F] Motion for Stay of Execution Pending the Florida
Supreme Court’s Decision in Owen v. State
[G] Order of Florida Supreme
denying Motion for Stay
iii
Court
May
10,
2019,
[H] Motion For Reconsideration of Motion for Stay of
Execution Pending the Florida Supreme Court’s Decision
in Owen v. State
[I] Order denying Motion for Rehearing
iv
TABLE OF CITATIONS
PAGE NO.
Arthur v. Thomas,
674 F.3d 1257 (11th Cir. 2012)
32
Asay v State,
210 So.3d 1 (Fla. 2016)
7,21,23,25,27,
25
Asay v. State,
224 So.3d 695 (Fla. 2017)
10,11,13,34
Baze v. Rees,
553 U.S. 35 (2008)
10,30,34
Bucklew v. Precythe,
139 S.Ct. 1112 (2019)
12,30,34
Caldwell v. Mississippi,
472 U.S. 320 (1985)
22,27,29
Coleman v. Balkom
451 U.S. 949 (1981)
39
Dunn v. Ray,
586 U.S. ___ (2019)
15
Eide v. Sarasota County,
908 F.2d 716 (11th Cir. 1990)
32
Eisenstadt v. Baird,
405 U.S. 438 (1972)
28
Elledge v. Florida,
525 U.S. 944 (1998)
37
Ford v. Wainwright,
447 U.S. 399 (1986)
28
Gardner v. Florida,
430 U.S. 349, 97 S. Ct. 1197 (1977)
29
Gary v. City of Warner Robbins, GA.,
311 F.3d 1334 (11th Cir. 2000)
31
v
Glossip v. Gross,
125 S.Ct. 2726 (2015)
12,30,34,39
Gore v. State,
91 So.3d 769 (Fla. 2012)
38
Gregg v. Georgia,
428 U.S. 153 (1976)
38
Hitchcock v. Florida,
226 So.3d 216 (Fla. 2017)
22
Hurst v. Florida,
136 S.Ct. 616 (2016)
passim
Hurst v. State,
202 So.3d 40 (Fla. 2016)
passim
James v. State,
615 So.2d 668 (Fla. 1993)
7,23,25
McLaughlin v. State,
379 U.S. 184 (1964)
28
Morrissey v. Brewer,
408 U.S. 471 (1972)
29
Mosley v. State,
209 So.3d 1248 (Fla. 2016)
7,21,23,25
Muhammad v. State,
132 So.3d 176 (Fla. 2103)
13
Patrick Henry Murphy v. Bryan Collier,
15,16,17
Executive Director, Texas Dept. Criminal Justice,
et.al., 2019 WL 18A985 (May 13, 2019)
Lackey v. Texas,
514 U.S. 1045 (1995)
15,16,17
Long v. State,
610 So.2d 1268 (Fla. 1992),
cert. denied, 510 U.S. 832 (1993)
vi
2
Long v. State,
118 So.3d 342 (Fla. 2013)
2
Long v. State,
183 So.3d 342 (Fla. 2016)
2
Long v. State,
235 So.3d 293 (Fla. 2018),
cert. denied, 139 S.Ct. 162 (2018)
1,7
Long v. State,
2019 WL 2066964 (Fla. May 17, 2019)
1
Ohio Adult Parole Authority, et. al. v. Woodard,
523 U.S. 272 (1998)
28
Owen v. State,
SC18-810 (Fla. April 24, 2019)
7,8,23,26
Overton v. Bazzetta,
539 U.S. 126 (2003)
19
Ring v. Arizona,
536 U.S. 551 (20020
passim
Stanton v. Stanton,
421 U.S. 7 (1975)
17
State v. Murray,
44 Fla. Law Weekly S3 (Fla. December 29, 2018)
26
Strickland v. Washington,
466 U.S. 668 (1984)
29
Turner v. Safley,
482 U.S. 78 (1987)
19
Valle v. Florida,
132 S.Ct. 1 (2011)
37,39
OTHER AUTHORITIES
Title 28, United States Code, Section 1257(a)
vii
2
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 2019
BOBBY JOE LONG, Petitioner,
v.
STATE OF FLORIDA, Respondent,
The
petitioner,
BOBBY
JOE
LONG,
respectfully
requests that a stay of execution be entered and that
a writ of certiorari issue to review the judgment and
opinion of the Supreme Court of Florida, entered in
this cause on May 17, 2019.
OPINION BELOW
The
opinion
of
the
Supreme
Court
of
Florida
affirming the denial of petitioner’s motion for stay
of execution and to vacate the judgment for firstdegree
murder,
kidnapping,
and
sexual
battery
and
sentence of death is as yet to be reported, but is
found
at
Long
v.
State,
Case
No.
SC726
2019
WL
2066964(Fla. May 17, 2019) and is reproduced in the
Appendix. [A1-22]
The prior opinions of the Florida
Supreme Court affirming the petitioner’s
1
conviction for first-degree murder and death sentence
are
found
1992),
at
cert.
Long
v.
denied,
State,
510
610
U.S.
So.2d
832
1268
(Fla.
(1993)[affirming
conviction and sentence]; Long v. State, 118 So.3d 798
(Fla. 2013)[affirming denial of claims raised in the
Amended
Motion
for
Postconviction
Relief];
Long
v.
State, 183 So.3d 342 (Fla. 2016)[affirming denial of
the Successor Motion for Postconviction Relief]; and
Long
v.
State,
235
So.3d
293
(Fla.
2018),
cert.
denied, 139 S.Ct. 162 (2018).[Appendix B]
JURISDICTION
The Supreme Court of Florida affirmed the denial
of petitioner’s motion for stay of execution and to
vacate
the
judgment
murder,
sexual
sentence
of
Petitioner
of
conviction
battery,
death
asserted
on
and
May
below,
of
first-degree
kidnapping
17,
and
2019.
and
[Appendix
asserts
here,
the
A]
a
deprivation of his rights guaranteed under the First,
Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution.
Title 28, United States
Code, Section 1257(a) confers certiorari jurisdiction
in this Court to review the judgment and sentence in
this case.
2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The First Amendment to the United States Constitution
provides:
Congress shall make no law respecting the
establishment of religion or prohibiting the free
exercise thereof, or abridging the freedom of speech
or the press; or the rights of the people peaceably to
assemble, and to petition the Government for a redress
of grievances.
The Fifth Amendment to the United States
Constitution provides:
No person shall be held to answer for a
capital, or otherwise infamous crimes, unless on
a presentment of indictment of a grand jury,
except in cases arising in the land or naval
forces, or in the militia, when in actual service
in time of war or public danger,, nor shall any
person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness
against himself, nor be deprived of life,
liberty, or property, without due process of law;
nor shall private property be taken for public
use without just compensation.
The Sixth Amendment to the United States Constitution
provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
accusation; to be confronted with the witnesses
against him; to have compulsory process for
3
obtaining witnesses in his favor, and to have
the assistance of counsel for his defense.
The Eighth Amendment to the United States Constitution
provides:
Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and usual
punishment inflicted.
The Fourteenth Amendment to the United States
Constitution provides:
All persons born or naturalized in the
United States and subject to the jurisdiction
thereof, are citizens of the United States and of
the State wherein they reside.
No State shall
make or enforce any law which shall abridge the
privileges or immunities of citizens of the
United States; or shall any State deprive any
person of life, liberty, or property, without due
process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.
4
STATEMENT OF THE CASE
Petitioner, BOBBY JOE LONG, was charged by indictment
in Hillsborough County, Florida in 1985, with the firstdegree murder, sexual battery, and kidnapping of Michelle
Sims and was sentenced to death.
He is under an active
death warrant, with execution set for May 23, 2019, at 6:00
p.m.
Relevant Facts as to Question I:
The death warrant in this case was signed on April 23,
2019. On April 29, 2019, Mr. Long sent a letter by U.S.
Mail and e-mail to Barry Reddish, Warden of Florida State
Prison requesting the following: (1) Mr. Long’s designated
witness be allowed to have access to a writing pad and
pencil during the execution;(2) Mr. Long’s designated legal
witness have access to a cell phone before and during the
execution
process;
(3)
Mr.
Long
be
afforded
a
second
witness to his execution; and (4) that one of Mr. Long’s
witnesses be allowed to observe the IV insertion process.
Mr. Long argued he should be allowed to substitute a nonclergyman for the minister of religion, but was not seeking
any additional witnesses.[Appendix C] Mr. Long argued the
denial of cell phone access to his legal witness deprived
him of access to the courts if there were problems with the
5
execution. Mr. Long would also be precluded from bringing
an Eighth Amendment challenge that could arise during that
process and would deny him his Sixth Amendment right to
counsel.
The Department of Corrections [DOC] granted Mr. Long’s
first
request
and
denied
the
remaining
three
requests.[Appendix D]
Pursuant to §922.11(2), Fla. Stat. (2018), Mr. Long is
permitted to have his legal counsel present along with a
requested
minister
of
religion.
Twelve
citizens
of
the
warden’s choosing witness the execution, as well as members
of
the
media.
The
statute
excludes
all
others.
All
witnesses, including legal counsel, remain in the viewing
room
during
the
execution
rather
than
the
execution
additional
witnesses
chamber.
The
State’s
position
was
any
would crowd the viewing area, maintaining the courts do not
manage state execution practices and prison policies.
The Florida Supreme Court held DOC is entitled to the
presumption the execution will be properly carried out and
it
was
not
the
role
of
the
court
to
micromanage
executive branch in fulfilling its duties relating to an
6
the
execution.
Relevant Facts as to Question II:
In previous collateral litigation Mr. Long pursued
relief from his death sentence under Hurst v Florida, 136
S.Ct. 616 (2019) and Hurst v. Florida, 202 So.3d 40 (Fla.
2016).
Mr. Long, who challenged the jury’s advisory role
in sentencing as early as 1989, argued unsuccessfully he
was entitled to a new penalty phase because his jury was
instructed
their
recommendation
was
advisory
only.
Mr.
Long’s challenges were denied by the Florida Supreme Court
because his sentence became final prior to the issuance of
Ring v. Arizona, 536 U.S. 551 (2002). Long v. State, 235
So.3d 923 (Fla. 2018), cert. denied, 139 S.Ct. 162 (2018).
The death warrant in this case was signed on April 23,
2019. On April 24, 2019, the Florida Supreme Court issued
an order in Owen v. State, SC18-810, a death penalty case,
directing the parties to brief the issue of whether the
Florida Supreme Court should recede from the retroactivity
analysis in Asay v. State, 210 So.3d 1 (Fla. 2016); Mosely
v. State, 209 So.3d 1248 (Fla. 2016); and James v. State,
615 So.2d 668 (Fla. 1993). The Appellant’s brief was due on
May 14, 2019, the Appellee’s brief twenty days after, the
reply brief twenty days after that. [Appendix E]
7
Mr. Long filed a Motion for Stay of Execution Pending
the
Florida
Supreme
Court’s
Decision
in
Owen
v.
State.
[Appendix F] Mr. Long argued a stay should be granted in
his
case
as
he
has
consistently
argued
the
partial
retroactivity scheme the Florida Supreme Court applied to
deny him Hurst relief violates the Eighth Amendment and
Fourteenth Amendment. Mr. Long argued his execution should
not
move
forward
while
the
Florida
Supreme
Court
reconsiders the retroactivity cut-off in Owens.
The State’s position was Mr. Long is not entitled to a
stay because he did not meet the requirements for a stay,
he had unsuccessfully litigated a Hurst claim, and he would
not be entitled to relief because of the 1989 unanimous
death recommendation.
On May 10, 2019, the Florida Supreme Court issued an
order denying Mr. Long’s motion for stay.[Appendix G] The
Florida
Supreme
Court
stated
Mr.
Long,
as
a
pre-Ring
defendant, was not entitled to relief. The order further
stated that if the Florida Supreme Court receded from the
Ring cut-off and found that the Hurst decisions were not
retroactive Mr. Long would not be entitled to relief.
Mr. Long moved for rehearing. [Appendix H] Mr. Long
8
argued the Florida Supreme Court in Owen should give full
and
fair
consideration
to
whether
the
Ring
cut
off
is
appropriate for those defendants, like Mr. Long who filed
Ring type challenges prior to Ring.
current
framework
is
arbitrary
Mr. Long argued the
and
capricious,
as
demonstrated by the Owens case. Mr. Long argued to deny him
full briefing on this question was a denial of his First
Amendment
right
of
access
to
the
courts,
as
well
as
a
violation of the Eighth and Fourteenth Amendments. On May
17, 2019 the Florid Supreme Court denied the motion for
rehearing.[Appendix I]
The Florida Supreme Court rejected Mr. Long’s Hurst
claim as untimely, successive, and procedurally barred and
did not reference Owen.
Relevant Facts as to Question III:
On
January
4,
2017,
the
Florida
Department
of
Corrections instituted a new lethal injection protocol in
Florida. The drug etomidate was designated to replace the
previous drug, midazolam, as the first drug in the three
drug
protocol.
and
Rocuronium
bromide,
a
potassium
acetate
is
paralytic
is
the
lethal
third,
the
second
drug
drug.
The Florida Department of Corrections released no
other information related to this significant change to the
9
protocol. The Florida Supreme Court upheld the use of the
January 2017 protocol in Asay v. State, 224 So.2d 695 (Fla.
2017).
Florida has executed five individuals since the change
to the protocol using etomidate, including Patrick Hannon
in November 2017, and Eric Branch in February 2018.
After the warrant was signed in this case, Mr. Long
made multiple public records requests under Fla. R. Crim.
P. 3.852(i).
Mr. Long made (i) requests to the Florida
Department of Corrections,[herein after “DOC”]; the Florida
Department of Law Enforcement,[herein
the
Medical
Examiner’s
[herein after “ME”].
Office
of
after “FDLE”]; and
the
Eighth
District
The ME for the Eighth District is
statutorily charged with the task of performing an autopsy
of inmates who are executed in the State of Florida.
Mr. Long sought the records in an effort to determine
whether the prior protocol created less of a substantial
risk of harm and was preferable under Baze v. Rees, 553
U.S. 35 (2008) and to
better determine the efficacy of
etomidate as compared to pentobarbital and fentanyl.
Mr.
Long also sought to determine if the levels of etomidate
present
at
the
time
of
death
in
the
Branch
and
executions to determine if the amounts that DOC has
10
Hannon
determined to be appropriate are actually being delivered.
Mr.
Long
also
argued
that
a
defendant
could
never
challenge
whether
or
not
the
current
lethal
injection
protocol
violated
the
Eighth
Amendment
when
collateral
counsel
is
precluded
from
obtaining
public
records
that
would be available to others who do not represent death
sentenced individuals.
The Florida Supreme Court rejected Mr. Long’s request
for public records, finding requests made to obtain any
documents related to Florida’s lethal injection protocol
were overbroad and would not lead to a colorable claim. The
Florida
other
Supreme
than
for
Court
deemed
any
public
records
request
Mr.
Long’s
own
medical
records
to
be
overbroad and previously rejected.
Mr. Long requested that he be given a full evidentiary
hearing
on
his
claim
that
the
current
lethal
injection
protocol was unconstitutional and that the use of etomidate
as the first drug created a substantial risk of harm to Mr.
Long due to his brain damage and temporal lobe epilepsy.
Mr. Long argued that the decision in Asay should not bar
future litigation if additional evidence could be presented
to cast doubt on the efficacy of etomidate, as applied to
11
him and as part of the three drug protocol.
Mr. Long
challenged the Asay decision since it was decided before
any actual executions using the new three drug protocol and
two of the five executions since Asay had been decided had
significant
problems
which
merited
a
review.
The
trial
court granted Mr. Long a limited evidentiary hearing on
whether etomidate would violate the tenets of Glossip v.
Gross, 125 S.Ct. 2726 (2015) and Bucklew v. Precythe, 139
S.Ct. 1112 (2019), but refused to permit any evidence about
the general limitations of etomidate or the executions of
Branch or Hannon into evidence at the hearing.
The trial
court refused to reconsider the three-drug protocol.
The position taken by the State of Florida was that
Asay would require summary denial of all future challenges
to etomidate and the lethal injection protocol until and
unless another change to the protocol was made.
The State
of Florida maintains that there is only one opportunity to
challenge the execution protocol and once that challenge is
made, no matter what evidence might be omitted, no future
challenges are cognizable claims.
The
Florida
Supreme
Court
affirmed
the
denial
of
relief by the trial court. As to Mr. Long’s as applied
claim, the Florida Supreme Court found Mr. Long failed to
12
establish the use of etomidate presents a substantial and
imminent risk that is sure or very likely to cause serious
illness and needless suffering
As
to
the
second
showing, the Florida Supreme Court held Mr. Long failed to
identify
a
known
and
available
alternate
method
of
execution what entails a significantly less severe risk of
pain, finding DOC is entitled to the presumption it will
comply with the lethal injection protocol and the protocol
has
sufficient
safeguards
to
ensure
the
inmate
is
unconscious throughout the execution.
The
challenge
Florida
Supreme
Court
rejected
to
current
three
drug
the
Mr.
lethal
Long’s
injection
protocol and to the use of etomidate. The Florida Supreme
Court adhered to the position that a single hearing on a
new
lethal
injection
protocol
is
sufficient,
again
affirming Muhammad v. State, 132 So.3d 176, 203 (Fla. 2013)
and Asay v. State, 224 So.3d 695, 701 (Fla. 2017).
Relevant facts to Question IV:
Mr. Long challenged his execution as violative of the
Eight Amendment because he has endured the conditions on
Florida’s death row for thirty years and there was only a
marginal social or public purpose served by his execution.
Mr. Long sought an evidentiary hearing on this claim to
13
demonstrate how his particular experiences on death row and
the
conditions
relief.
he
specifically
endured
would
warrant
The trial court denied Mr. Long an evidentiary
hearing.
The Florida Supreme Court upheld the denial of Mr.
Long’s
claim,
relying
on
prior
precedent
denying
such
claims and did not address Mr. Long’s argument he should
have been given an evidentiary hearing.
REASONS FOR GRANTING THE WRIT
QUESTION I
THE FLORIDA DEPARTMENT OF CORRECTION’S RESTRICTIONS
ON MR. LONG’S EXECUTION WITNESES AND REFUSING TO
ALLOW HIM TO HAVE A NON-CLERGYMAN AS HIS SECOND
WITNESS VIOLATES THE FIRST, FIFTH, SIXTH, EIGHTH,
AND FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION
On April 29, 2019, six days after the signing of the
warrant in this case Mr. Long sent a letter to the warden
of Florida State prison requesting four accommodations for
the two witnesses he was permitted to have.
DOC granted
the request for legal counsel to have writing materials,
but denied Mr. Long’s request to have his legal counsel
view the IV insertion, that his legal counsel have access
to a cell phone before and during the execution, and that
Mr. Long could select a non-clergy member to serve as his
14
second
witness.
The
Florida
Supreme
Court
upheld
the
denial of Mr. Long’s three requests by DOC and the trial
court, holding that DCO is entitled to presumption that it
will properly perform its duties while carrying out the
execution and the court should not micromanage DOC.
Florida
Supreme
Court
made
no
mention
of
this
The
Court’s
decisions in Dunn v. Ray, 586 U.S. _____ (2019) or Patrick
Henry Murphy v. Bryan Colliers, Executive Director, Texas
Department
of
Criminal
Justice,
et.al.,
2019
WL
18A985)
(May 13, 2019). A dissenting opinion questioned whether or
not the issue was not ripe for review because DOC had not
responded to Mr. Long’s request at the time the claim was
made.
days
In fact, DOC did not respond until May 9, 2019, ten
after
the
request
was
made
and
the
same
day
the
Initial Brief was filed.
The Florida Supreme Court failed to consider and apply
Murphy and Dunn.
The state courts and this Court have the
authority to monitor and correct unconstitutional practices
by the state in its execution protocols and procedures.
Mr. Long’s request was timely made.
Mr. Long made every
effort
issue,
to
pursue
and
litigate
this
receiving a response from DOC for ten days.
despite
Any delay in
bringing this issue forward was the result of “foot
15
not
dragging” by the state, not Mr. Long.
In Murphy this Court granted a stay of execution to a
Texas inmate after Texas barred his spiritual advisor, a
Buddhist,
from
the
Christian
or
Muslim
execution chamber.
execution
chamber.
religious
Texas
advisor
to
permitted
be
in
a
the
Murphy challenged this exclusion thirty
days in advance of his execution.
The stay was granted on
the day of the execution, with the Chief Justice noting the
state caused substantial delay by “foot dragging” before
responding to the defendant’s request. Justice Kavanaugh
observed Texas’ policy was discriminatory and the solution
was to either allow any spiritual/religious advisor into
the execution chamber or to confine all spiritual/religious
advisors to the viewing chamber. Texas could not, however,
treat
spiritual
advisors
of
different
faiths
unequally.
Within five days of the stay being granted, Texas changed
its policy. Effective immediately, all religious ministers
were allowed only in the viewing room. This change provided
equal treatment to all.
The State of Florida permits Mr. Long to have two
execution witnesses: his legal counsel and the second, a
requested religious minister.
Mr. Long wished to exercise
16
his right to have two witnesses, however Mr. Long did not
want a religious minister.
Instead, Mr. Long wished to
have his second witness be a non-clergyman. DOC denied Mr.
Long’s request. DOC’s restriction of the second witness to
a
clergyman
clause.
violates
the
First
Amendment
establishment
Mr. Long is being given unequal treatment because
he does not want a religious minister.
The remedy is straight forward.
The State of Florida
should permit the condemned to have two witnesses without
the
requirement
of
clergy.
This
remedy
ensures
equal
treatment going forward and would not require a significant
burden on DOC. See Stanton v. Stanton, 421 U.S. 7, 17-18
(1975).
This Court should enter a stay under Murphy until the
State of Florida changes its discriminatory practice.
Mr. Long made a request that his legal witness be
allowed
to
observe
allowed
access
to
the
a
IV
cell
insertion
phone
procedure
before
and
and
be
during
the
execution. Mr. Long argued the denial of these requests
violates Mr. Long’s right of access to the courts, his
right to counsel, and prevents him from establishing his
execution could be cruel and usual punishment.
The IV insertion process is a critical stage in the
17
lethal
injection
process.
First,
any
difficulties
in
achieving venous access should be observed and documented,
particularly if the process requires multiple attempts to
locate a vein or involves a cut-down procedure. If Mr. Long
is deprived of access to his attorney during this period he
has also been denied the ability to challenge this part of
the execution process as cruel and usual. The denial of
cell phone access to the legal counsel witness prevents
this witness from communicating to other members of the
legal team outside the prison in the event any part of the
execution process goes array or if DOC does not follow the
approved protocol.
courts
once
insertion.
the
Mr. Long will be denied access to the
execution
process
begins
with
the
IV
Mr. Long’s constitutional rights should not be
abrogated by prison rules. Four factors are considered when
determining whether a prison rule may limit an inmate’s
constitutional rights. The first factor examines whether
the prison rule bears a valid, rational connection to a
legitimate governmental interest. The second factor asks
whether there is an alternative means open to inmates to
exercise the asserted right.
The third factor examines
what impact an accommodation of the right would have on
guards, inmates, and prison resources. Finally, the fourth
18
factors analyzes whether there are ready alternatives to
the regulations. Overton v. Bazzetta, 539 U.S. 126, 132
(2003)(quoting Turner v. Safley, 482 U.S. 78, 89-91 (1987).
The refusal to allow Mr. Long’s second witness to be a
layman does not have a valid, rational connection to a
legitimate governmental interest. The State argued limited
space in the viewing room was the primary concern of DOC.
This is without merit. Mr. Long is not asking for more
witnesses, he is seeking to exercise his right to the two
permitted witnesses. Mr. Long has no alternative means to
have a second witness. There does not appear to any impact
on
guards,
witness
is
regulation
inmates
not
is
to
or
prison
clergy.
A
permit
the
resources
ready
if
the
alternative
second
witness
second
to
to
the
be
a
the
IV
layperson.
The
denial
the
legal
witness’s
viewing
of
insertion ensures a critical part of the lethal injection
process
is
governmental
kept
secret.
interest.
This
appears
Secrecy
is
to
not
be
the
only
a
legitimate
governmental interest. Mr. Long has no alternative means
open to him to exercise his rights to counsel and access to
the courts. Any impact on the guards and prison resources
would be de minimis, and there would be no impact on other
19
inmates.
simply
The
ready
permit
alternative
observation
of
to
the
the
IV
regulation
insertion
is
by
to
legal
counsel from the viewing room or chamber.
The denial of access to a cell phone by the legal
counsel
witness
does
not
governmental interest.
have
an
articulated
legitimate
The State has not identified why
DOC is opposed to this request. Mr. Long and his legal
counsel have no alternative means available to them for his
legal
witness
to
communicate
with
other
members
of
the
legal team outside the prison. There would be no impact to
other inmates. There would be a negligible impact on prison
guards
and
resources.
The
ready
alternative
to
the
regulation is to permit the legal counsel witness to have
access to a cell phone with reasonable guidelines for use.
An application of Murphy and these four factors to Mr.
Long’s request to have a layperson witness, his request to
allow
his
attorney
to
view
the
IV
insertion,
and
his
request that his attorney to have access to a cell phone
before and during the lethal injection process compel a
decision
in
Mr.
interfere
with
Long’s
the
favor.
execution
These
in
any
requests
would
not
manner
unless
the
execution was to go awry. Mr. Long’s requests are both
reasonable to ensure his constitutional rights are
20
protected and are timely. The requests do not overburden
DOC, yet these restrictions unnecessarily impinge on Mr.
Long’s right to counsel and access to the courts, as well
as infringe on his ability to raise an Eighth Amendment
claim should the execution go wrong.
A stay should be
granted until DOC makes the accommodations Mr. Long has
timely sought.
QUESTION II
THE FLORIDA SUPREME COURT DECISION HOLDING MR. LONG
IS NOT ENTITLED TO A NEW PENATLY PHASE PURSUANT TO
HURST v. FLORIDA AND HURST v. STATE VIOLATES THE
SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS OF THE UNITED
STATES CONSTITUION WHERE THE DENIAL OF RELIEF IS
ARBITRARY AND CAPRICIOUS AND CAUSES DISPARATE
TREATMENT BETWEEN SIMILARLY SITUATED DEFENDANTS
The Eighth Amendment bars the infliction of punishment
that
is
arbitrary
and
capricious.
Under
the
Fourteenth
Amendment, Mr. Long is guaranteed equal protection under
the law.
The retroactivity of the decisions in Hurst v.
Florida, 136 S.Ct. 616 (2016) and Hurst v. State, 202 So.3d
40
(Fla.
2016),
cert.
denied,
137
S.Ct.
2161
(2017),
announced by the Florida Supreme Court in Asay v. State,
210 So. 3d 1 (Fla. 2016) and Mosley v. State, 209 So.3d
1248
(Fla.
2016)
violate
the
Eighth
and
Fourteenth
Amendments of the United States Constitution.
Mr. Long continues to challenge the constitutionality
21
of the retroactivity bar promulgated by the Florida Supreme
Court which denies retroactivity of the Hurst decision to
defendants whose death sentences became final prior to the
issuance of Ring v. Arizona, 536 U.S. 584 (2002) on June
24,
2002.
Mr.
Long
urges
this
Court
to
reconsider
the
Florida Supreme Court’s judicially created arbitrary bar
whose continued application demonstrates the arbitrary and
capriciousness of the line-drawing at Ring. The result of
the
retroactivity
bar
to
those
such
as
Mr.
Long
is
disparate treatment between death sentenced prisoners on
collateral review.
Mr.
Long
unsuccessfully
challenged
the
Florida’s
sentencing
scheme,
constitutionality
of
specifically
jury’s
the
death
advisory
role
under
Caldwell
v.
Mississippi, 472 U.S. 320 (1985), in his direct appeal.
When
the
Hurst
decisions
issued
Mr.
Long
brought
a
successor postconviction motion seeking to have his death
sentence
vacated
as
the
statute
that
had
been
used
to
sentence him to death was found to be unconstitutional.
In
August 2017, the Florida Supreme Court summarily upheld the
Ring-based retroactivity cut-off in Hitchcock v. State, 226
So.3d 216 (Fla. 2017) The Florida Supreme Court rebuffed
Mr. Long’s challenge, finding he was not entitled to relief
22
because his case became final before 2002.
Not only did the Florida Supreme Court deny relief to
Mr. Long, it did so to approximately 100 other death row
inmates. The retroactivity cutoff for Hurst claims divided
Florida’s
death
row
roughly
in
half,
making
dozens
of
prisoners entitled to resentencing, while preventing dozens
of others from bringing claims based on the same violation
involving the same statute.
The governor signed Mr. Long’s death warrant on April
23, 2019. On April 24, 2019, in another capital case, the
Florida Supreme Court issued an order directing the parties
in that case to submit full briefing on “…whether this
Court should recede from the retroactivity analysis in Asay
v. State, 210 So.3d 1 (Fla. 2016); Mosley v. State, 209
So.3d 1248 (Fla. 2016), and James v. State, 615 So.2d 668
(Fla. 1993).”[Appendix E] Mr. Long filed a Motion for Stay
of Execution Pending the Florida Supreme Court’s Decision
in Owen v. State.
Mr. Long argued his execution should be
stayed
decision
pending
a
in
Owen
since
he
would
be
entitled to relief if the Florida Supreme Court receded
from the arbitrary and capricious retroactivity bar given
his death sentence was the product of Florida’s prior,
23
unconstitutional advisory-jury scheme.
Mr.
Long
argued
that
his
death
sentence
was
the
product of a unanimous jury recommendation where the jury
made no required factual findings.
the required state-law findings.
The judge alone made
Not only did the trial
judge make the findings, but the judge did not assign any
weight to those findings since Mr. Long’s case pre-dated
Campbell.
Mr. Long argued under the principal of stare decisis,
that is was highly significant the Florida Supreme Court
was reconsidering the retroactivity framework of Asay and
Mosely just three years later. However, the Owen order is a
sign the Florida Supreme Court is seriously contemplating
altering
the
myriad
of
Hurst
retroactivity
constitutional
framework.
problems
Given
the
by
the
created
retroactivity bar, Mr. Long argues there is a possibility
the
Florida
retroactivity
Supreme
Court
framework
and
may
decide
expand
to
Hurst
abandon
to
the
include
defendant’s like Mr. Long who identified and raised a Ring
claim before it had a name.
The Florida Supreme Court denied Mr. Long’s request
for a stay.[Appendix G]
The order states Mr. Long’s case
24
became final prior to Ring, thus under precedent he was not
entitled to relief and if the Court were to hold Hurst was
not retroactive at all, Mr. Long would not be entitled to
relief.
Mr. Long moved for rehearing, arguing if the Court
were
reconsidering
the
retroactivity
cutoff,
a
full
and
fair hearing on the issue would require consideration of
whether retroactivity should include all death row inmates,
including
pointed
those
out
such
that
as
the
Mr.
Owen
Long.[Appendix
case
was
an
H]
Mr.
example
of
Long
the
arbitrary and capricious result of the retroactivity bar,
since
one
of
Owen’s
cases
qualified
for
Hurst
relief
because it was post-Ring, but a second case did not, even
though both murders occurred in 1984.
Mr. Long sought the
opportunity to fully brief this issue.
The
Florid
Supreme
Court
denied
the
motion
for
rehearing. [Appendix I]
Mr. Long has consistently argued Hurst should apply to
him,
even
before
such
a
claim
had
a
name.
Mr.
Long’s
scheduled execution should not proceed while the Florida
Supreme court reconsidered whether it should “recede from
the retroactivity
analysis” of Asay, Mosely, and James. It
would be the height of injustice to allow Mr. Long’s
25
execution to proceed on May 23, 2019, only for the Florida
Supreme Court to subsequently rule in Owen that Mr. Long
had been correct all along.
Mr.
Long
submits
that
to
ensure
fairness
and
uniformity in Florida’s application of the death penalty,
the Hurst decisions must be applied retroactively to all
cases, including this case. The result of the Asay decision
has been that some defendants whose murders were committed
long
before
protection
Hurst,
but
requirements
not
of
others
fairness
violate
and
the
equal
uniformity.
The
continued application of the bright-line Ring cut-off has
continued to lead to unconstitutionally arbitrary results.
As
Justice
Pariente
pointed
out
in
her
dissent
in
State v. Murray, 44 Fla. Law Weekly S3 (Fla. December 20,
2018),
the
“line-drawing
for
the
retroactivity
creates
unconstitutional
results
for
evidence
by
between
Murray
the
results
of
Hurst
defendants”,
and
his
as
co-
defendant, Taylor. Taylor and Murray were both convicted of
the same 1990 first-degree murder of the same victim and
both were sentenced to death. The jury recommended death
for Murray by a vote of 11-1 and a second jury recommended
death for Taylor by a vote of 10-2. Murray obtained Hurst
26
relief because his case did not become final until 2009 due
to three re-trials. Taylor was denied Hurst relief because
his case became final in 1994.
The failure to apply Hurst retroactively violated the
dictates
of
Caldwell
v.
Mississippi.
The
jury
in
Mr.
Long’s was not instructed correctly as to its sentencing
responsibility. Post-Hurst jurors know that each will bear
the responsibility for a death sentencing resulting in a
defendant’s execution since each juror possesses the power
to require the imposition of a life sentence simply by
voting
against
a
death
recommendation.
As
explained
in
Caldwell, jurors must feel the weight of their sentencing
responsibility.
aside
in
A
unanimous
Caldwell
jury
because
recommendation
the
was
set
sense
of
sentence
based
on
probability
that
at
jury’s
responsibility was inaccurately diminished.
Mr.
Caldwell.
Long
challenged
There
is
the
his
death
reasonable
least one juror, if instructed properly, would vote for
life in this case, thus the error is not harmless.
At
minimum,
retroactivity
should
be
extended
to
defendants such as Mr. Long, who raised claims directed at
the jury’s role in sentencing even before those claims had
a name. The application of retroactivity under Asay is
27
arbitrary
and
capricious
in
violation
of
the
Eighth
Amendment. The granting of relief in capital cases, where
“death
is
different”
should
not
turn
on
the
date
of
sentence, resentence, or the arbitrariness of the timing of
the docket. The current retroactivity bar has reduced the
continued sentence of death on little more than the roll of
the dice.
The retroactivity bar cannot pass the strict scrutiny
test required by the Fourteenth Amendment. See Eisenstadt
v. Baird, 405 U.S. 438, 447 (1972); McLaughlin v. Florida,
379 U.S. 184, 191(1964). Denying the benefit of post-Hurst
sentencing to defendants such as Mr. Long violates the life
and liberty interest protected by the Fourteenth Amendment.
Mr. Long has vested due process rights and a vested right
in jury determinate sentencing. See Ford v. Wainwright, 447
U.S. 399, 427-31 (1986); Ohio Adult Parole Authority v.
Woodard, 532 U.S. 271, 288-89 (1998).
Mr. Long is scheduled to be executed based on a death
sentence that was grounded on a statute that was found to
be
unconstitutional
Supreme
Court.
The
by
both
this
Court
and
was
just
as
statute
the
Florida
wrong
and
unconstitutional in 1972 when the statute was implemented,
in 1989 when Mr. Long was sentenced to death, and in 2016
28
when Hurst was decided.
Mr. Long should not be executed
because it took the courts over forty years to recognize
the error.
QUESTION III
THE FLORIDA SUPREME COURT DECISION UPHOLDING
MR. LONG’S EXECUTION WITH ETOMIDATE AND HOLDING
THAT MR. LONG WAS NOT ENTITLED TO AN EVIDENTIARY
HEARING ON THE CONSTITUTIONALITY OF FLORIDA’S LETHAL
INJECTION PROTOCOL AND DENYING HIM THE OPPORTUNITY
TO PRESENT EVIDENCE NOT PREVIOUSLY CONSIDERED BY THE
STATE COURTS OF FLORIDA RESULTED IN A VIOLATION OF
THE FIFTH, SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS
OF THE UNITED STATES CONSTITUTION
The Eighth Amendment bars the infliction of cruel and
usual
punishment.
execute
are
Those
entitled
whom
the
State
to
enhanced
is
seeking
to
constitutional
protections, especially due process protections under the
Fifth
and
Fourteenth
Amendments.
See
Caldwell
v.
Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231
(1985).
The
diminished
Florida,
heightened
when
430
due
process
standard
a
death
warrant
is
signed.
U.S.
349,
357-358,
97
S.Ct.
is
not
Gardner
v.
1197
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
(1977);
A capital
sentenced defendant is entitled to the effective assistance
of counsel at all stages of the proceedings. Strickland v.
Washington, 466 U.S. 668 (1984).
29
The deprivation of public
records relevant to a colorable claim of whether or not
Florida’s
lethal
injection
method
violates
the
Eighth
Amendment prohibition against cruel and usual punishment
under Baze v. Rees, 553 U.S. 35 (2008), Glossip v. Gross,
125 S.Ct. 2726 (2015), and Bucklew v. Precythe, 139 S.Ct.
1112 (2019) and by virtue of the creation of a substantial
risk of harm results in a violation of due process and
effective
assistance
of
Florida’s
practice
depriving
of
their
death-sentenced
that
would
violation
be
of
counsel
client’s
available
the
equal
to
to
the
collateral
access
the
to
general
protection
condemned.
counsel
public
records
public
provisions
and
is
of
a
the
Fourteenth Amendment.
The Florida Supreme Court denied Mr. Long’s records
requests because “We have held that rule 3.852(i) records
requests were not related to a colorable claim.”
The
Florida
Supreme
Court
relied
heavily
upon
the
presumption that the executive branch will properly carry
out/perform their duties properly in an execution as the
basis for denying requests for documents from DOC and FDLE
related to past executions.
Mr.
Long
is
entitled
to
counsel under the Sixth Amendment.
30
effective
assistance
Collateral counsel is
of
precluded under the decisional law of the Florida Supreme
Court from providing effective assistance when collateral
counsel
is
denied
access
to
public
records
that
are
necessary in order for collateral counsel to effectively
challenge Florida’s lethal injection protocol.
Further,
the State of Florida violates the Equal Protection clause
of
the
Fourteenth
Amendment
denies
collateral
counsel
when
and
the
State
death
of
Florida
sentenced
inmates
access to public records such as autopsy reports that are
available
to
the
general
public
under
Florida’s
public
records law, Chapter 119.
The State of Florida has unconstitutionally created a
different class of citizens, death sentenced inmates and
attorneys
who
The
Protection
Equal
represent
them
clause
in
collateral
requires
the
proceedings.
government
to
treat similar persons in a similar manner. Gary v. City of
Warner Robins, GA, 311 F.3d 1334, 1337 (11th Cir. 2000). In
this instance, the State of Florida is treating a group of
lawyers
and
a
group
of
inmates
in
a
manner
that
is
different from how other licensed members of the Florida
Bar and other inmates are treated.
The State of Florida
has
class
essentially
created
a
suspect
of
practice law in as collateral counsel. “When the
31
persons
who
legislation
classifies
persons
in
such
a
way
that
they
receive different treatment under the law, the degree of
scrutiny the court applies depends on the basis for the
classification.” Id.
“If a law treats individuals differently on the basis
of race of another suspect classification, or if the law
impinges on a fundamental right, it is subject to strict
scrutiny.” Eide v. Sarasota County, 908 F.2d 716, 722 (11th
Cir. 1990).
These principles have application to a death
sentenced inmate who is denied access to records related to
lethal injection and should apply even more forcefully to a
lawyer who practices in the area of collateral conviction
law
and
who
is
precluded
from
obtaining
records
and
documents that would be available to any other member of
the Florida Bar. See Arthur v. Thomas, 674 F.3d 1257, 1264
(11th Cir. 2012).
Fundamental fairness, if not due process,
should
that
require
materials
that
relate
to
lethal
injection and lethal injection protocols should be given to
the death sentenced inmate and his counsel in a prompt and
timely manner.
The Florida Supreme Court has determined that it will
hear only single challenge from a single defendant to any
alteration or change made to the lethal injection protocol.
32
The effect of this determination is to deny subsequent
defendants the right to challenge a protocol based upon a
hearing in which they were not represented, had no notice,
and no opportunity to be heard in violation of the Due
Process
clause.
denial
rule
The
denies
adherence
inmates
to
an
as
Mr.
such
automatic
Long
summary
his
Sixth
Amendment right to counsel when he had no counsel present
in the Asay hearing and his right to effective assistance
of counsel when he is bound by the efficacy of lawyers who
were not his own in Asay.
Mr.
Long
was
not
provided
public
records,
or
the
opportunity to amend his motion and present these records
to
the
Florida
courts.
public
records
that
Mr.
would
Long
have
was
not
denied
only
access
supported
to
his
claim, but greatly reduced the amount of time it would
require to him have identified the additional testimony he
would have presented had he been given the opportunity to
do so.
The actions of the State of Florida violate the
most fundamental constitutional guarantees of due process,
the
right
to
counsel,
the
ban
on
cruel
and
usual
punishment, and the guarantee of equal protection to all
citizens, even those that are reviled.
For all of the above reasons, counsel submits that an
33
execution
Eighth,
in
and
this
case
is
Fourteenth
barred
by
the
Fifth,
Sixth,
Amendments
to
the
United
States
Constitution.
Also, Mr. Long requested an evidentiary hearing in the
trial
court
to
present
evidence
that
had
not
been
considered when Asay was decided.
Asay was decided before
any
three-drug
execution
taken place.
using
the
current
protocol
had
Of the five executions with this protocol,
the Branch and the Hannon executions demonstrated problems
indicative that the anesthetic properties of etomidate did
not last the length of the execution. Mr. Long was denied
the most fundamental element of due process- the right to
be
heard
on
this
critical
issue.
See
Pariente,
J.,
dissenting, Asay v. State, 226 So. 3d at 700.
Mr. Long argued that under Baze, Glossip, and Bucklew
he
was
required
to
show
the
current
protocol
not
only
creates a substantial risk of harm, but also “If a State
refuses to adopt such an alternative in the face of these
documented
advantages,
justification
for
without
adhering
to
a
legitimate
its
current
penological
method
of
execution, then a state’s refusal to change its method can
be viewed as “cruel and unusual punishment.” Baze, at 52
[citation omitted]
An evidentiary hearing was necessary in
34
order for Mr. Long to establish that the State of Florida
was refusing to change the protocol that required etomidate
and
three
drugs
unconstitutional.
to
effectuate
an
execution
was
The denial of a hearing foreclosed Mr.
Long from doing this.
Mr. Long contended below that the hearing in Asay was
not sufficient to determine the constitutionality of the
current protocol; the current three drug protocol in favor
of the prior three drug protocol; or the continued use of
the a three drug protocol instead of a single or double
drug protocol. Had he been given the opportunity, Mr. Long
would have presented evidence at the limited hearing about
the general effects of etomidate and the tremendous risks
associated with it as evidenced in the Branch and Jimenez
executions. The trial court’s restrictions on the evidence
Mr. Long could present on the as applied portion of his
claim and the refusal to permit a hearing on the protocol
as a whole and in particular etomidate violated the Fifth,
Sixth, Eighth, and Fourteenth Amendments.
QUESTION IV
MR. LONG’S EXECTUION AFTER THIRTY YEARS ON DEATH
ROW AND THE DENIAL OF THIS CLAIM WITHOUT A HEARING
VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF
THE UNITED STATES CONSTITUTION
35
The
Eighth
Amendment
bars
cruel
and
unusual
punishment. Mr. Long has spent over thirty years on death
row. He has been confined to a un-air conditioned, 6’x9’
cell, with only two hours per week outside the cell. He is
allowed to shower every other day.
evidentiary
hearing
evidence
the
of
incarceration
on
this
physical
and
the
claim
and
Mr. Long sought an
in
order
psychological
unceasing
anxiety
to
present
effects
and
toll
this
the
anticipation of a death warrant has had on him. It does not
appear this has been done in any previous cases. The trial
court denied his request.
If Mr. Long had been granted an evidentiary hearing he
would
have
testified
in
a
manner
consistent
with
his
statements to the trial court when it was discussed whether
Mr. Long would attend the limited evidentiary hearing on
his as applied claim related to the use of etomidate in his
execution. Mr. Long told the trial court he did not want to
come due to the conditions he would endure before, during,
and after the hearing.
Mr. Long described being placed in
at least seven to eight pounds of chain, from his legs to
his
arms
and
shoulders,
how
painful
hours
movement with these type of chains was, and how
36
of
limited
psychological stressful this was.
Had he been given the
opportunity, Mr. Long would have offered testimony that his
lengthy death row incarceration was so severe an execution
would be barred by the Eighth Amendment.
In
Lackey
v.
Texas,
514
U.S.
1045
(1995),
Justice
Stevens and Breyer expressed concerns regarding the length
of time prisoners spend on death row prior to execution:
The cruelty of capital punishment lies not only in
the execution itself and the pain incident thereto,
but also in the dehumanizing effects of the lengthy
imprisonment prior to execution during which the
judicial and administrative procedures essential to
due process of law are carried out. Penologists and
medical experts agree that the process of carrying
out a verdict of death is often so degrading and
brutalizing to the human spirit is constitutes
psychological torture.
Lackey v. Texas, 514 U.S. n*.
Justice Breyer has continued to observe a lengthy stay
on
death
Amendment
row
is
review.
a
serious
See
issue,
Elledge
v.
subject
to
an
Eighth
Florida,
525
U.S.
944
(1998); Valle v. Florida, 132 S.Ct. 1 (2011).
Mr. Long
sought
Mr.
Long
row
and
an
intended
evidentiary
to
testify
hearing
about
his
on
this
years
claim.
on
death
specific effect that has had on him physically and mentally
in order to establish this claim.
Both the trial court and
the Florida Supreme Court foreclosed Mr. Long’s due process
37
rights in denying him this opportunity.
The
Florida
Supreme
Court
denied
Mr.
Long’s
claim,
citing to Gore v. State, 91 So.3d 769 (Fla.2012).
The
citation to Gore is not a sufficient basis to deny relief.
In Gore the trial court summarily denied Gore’s claim that
the
length
of
time
Eighth Amendment.
he
spent
on
death
row
violated
the
It does not appear from the opinion that
Gore actually requested an evidentiary hearing as Mr. Long
did. In his argument to the Florida Supreme Court Mr. Long
specifically
argued
it
was
error
to
deny
him
the
opportunity to develop his claim at an evidentiary hearing.
The Florida Supreme Court did not address Mr. Long’s claim
his due process rights were violated when he was deprived
of the opportunity to present evidence to establish an as –
applied claim. Once again, the Florida Supreme Court has
sidestepped Mr. Long’s due process rights in his efforts to
demonstrate his execution should be barred under the Eighth
Amendment.
The
Eighth
Amendment
requires
that
imposed
cannot
be
totally
without
so
the
“sanctions
penological
justification that it results in the gratuitous infliction
of suffering.” Gregg v. Georgia, 428 U.S. 153, 183 (1976).
38
Long terms of punishment on death row, such as that
endured by Mr. Long, become a separate form of punishment,
which
is
the
equivalent
to
or
greater
than
the
actual
execution. See Coleman v. Balkom, 451 U.S. 949, 952 (1981)
The two primary societal purposes for the death penalty,
retribution and deterrence, are not met here. Lackey v.
Texas, 514 U.S.1045 (1995).
Mr. Long did not forfeit his Eighth Amendment rights
by the exercise of other constitutional rights by pursing
appellate and collateral relief. See Valle, 132 S.Ct. at
2(“One cannot realistically expect a defendant condemned to
death to refrain from fighting for his life by seeking to
use whatever procedure the law allows.”) As just Breyer
noted
in
his
dissent
in
reliability
and
unfairness
punishment
laws)
almost
independent
constitutional
Glossip,
[with
the
the
inevitably
problem:
“problem
current
lead
to
of
spatial
a
third
excessively
long
periods of time that individuals typically spend on death
row, alive but under sentence of death.” Glossip v. Gross,
135 S.Ct. 2726, 2764-69 (2015).
Mr. Long should not be
required to choose among his constitutional rights
Mr. Long has been on death row long enough to see the
Courts declare the death penalty statute he was sentenced
39
under unconstitutional. The intervening thirty plus years
has significantly diminished a legitimate state interest in
seeing him put to death sufficient to render his execution
a violation of the Eighth Amendment.
CONCLUSION
Petitioner respectfully requests this Honorable Court
grant this petition for writ of certiorari to review the
decision
of
the
Supreme
Court
of
Florida
affirming
the
denial of petitioner’s request for stay of execution and
third successive motion for postconviction relief.
Respectfully submitted,
_______________________
ROBERT A. NORGARD
Attorney at Law
P.O. Box 811
Bartow, FL 33831
Fla. Bar No. 322059
(863)533-8556
Fax (863)533-1334
norgardlaw@verizon.net
MEMBER OF THE BAR OF THE
UNITED STATES SUPREME COURT
40
CASE NO.:_____________
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 2019
BOBBY JOE LONG
Petitioner,
v.
STATE OF FLORIDA
Respondent.
CERTIFICATE OF SERVICE
I, ROBERT A. NORGARD, a member of the Bar of this
Court, hereby certify that on this 20th day of May, 2019,
one copy of the Petition for Writ of Certiorari, one copy
of the Motion for Leave to Proceed In Forma Pauperis, and
one copy of the Petitioner’s Affidavit in support of this
Motion
were
mailed
and
e-mailed
to
Assistant
Attorney
General, Concourse Center 4, 3507 E. Frontage Road, Suite
200, Tampa, FL 33607, capapp@myflorialegal.com
respondent.
counsel for
I further certify that all parties required to
be served have been served.
/S/ ROBERT A. NORGARD
ROBERT A. NORGARD
Attorney at Law
P.O. Box 811
Bartow, FL 33831
863-533-8556
Fla. Bar No. 322059
Counsel for Petitioner
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