Response to application from respondent Florida — Duane E. Owen, Applicant v. Florida

No. 22A1069

IN THE

Supreme Court of the United States

DUANE E. OWEN,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

Respondent's Response to Application for Stay of Execution

APPENDIX TO RESPONSE FOR APPLICATION FOR STAY OF EXECUTION

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, JUNE 15, 2023, AT 6:00 PM

Appendix 1. Emergency Motion for Stay of Execution, United States District

Court, Southern District of Florida, Case Number 9:23-cv-80901-RS.

Appendix 2. Order Denying Motion for Emergency Stay of Execution, United

States District Court, Southern District of Florida, Case Number 9:23-cv-80901-

RS.

ASHLEY MOODY

Attorney General of Florida

Tallahassee, Florida

Cap—

C. Suzanne Bechard*

Associate Deputy Attorney General

*Counsel of Record

Florida Bar No.: 0147745

CarlaSuzanne.Bechard@myfloridalegal.com

CapApp@myfloridalegal.com

Telephone: (813) 287-7900

Celia A. Terenzio

Chief Assistant Attorney General

Celia.Terenzio@myfloridalegal.com

Leslie T. Campbell

Senior Assistant Attorney General

Leslie. Campbell@myfloridalegal.com

Office of the Attorney General

3507 East Frontage Road, Suite 200

Tampa, FL 33607-7013

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

WEST PALM BEACH DIVISION

DUANE E. OWEN,

Petitioner,

v. CASE NO.:

DEATH PENALTY CASE

RICKY D. DIXON,

Secretary, Florida Department EXECUTION SCHEDULED FOR

of Corrections, JUNE 15, 2023 AT 6:00 P.M.

and

ASHLEY B. MOODY,

Attorney General, State of Florida,

Respondents.

EMERGENCY MOTION FOR STAY OF EXECUTION

COMES NOW Petitioner, Duane E. Owen, by and through undersigned counsel, and

moves the Court to grant this Emergency Motion for Stay of Execution to properly consider the

grounds raised in Owen’s Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus.

Owen respectfully requests emergency action because his execution has been set for

Thursday, June 15, 2023 at 6:00 p.m. A ruling is necessary prior to that date to avoid Owen being

executed in violation of the Eighth Amendment to the United States Constitution, Panetti v.

Quarterman, 551 U.S. 930 (2007), Ford v. Wainwright, 477 U.S. 399 (1986), and Madison v.

Alabama, 139 S. Ct. 718, 722 (2019).

Owen’s incompetency to be executed places him outside of the class of individuals eligible

to be executed because the Supreme Court of the United States has held that “[t]he Eighth

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 2 of 8

Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.”

Ford y. Wainwright, 477 U.S. 399, 410 (1986). “[T]he execution of a prisoner whose mental illness

prevents him from ‘rationally understanding’ why the State seeks to impose that punishment” is

prohibited. Madison v. Alabama, 139 S. Ct. 718, 722 (2019) (quoting Panetti, 551 U.S. at 959).

“Gross delusions stemming from a severe mental disorder may put an awareness ofa link between

a crime and its punishment in a context so far removed from reality that the punishment can serve

no proper purpose.” Panetti, 551 U.S. at 960.

Additionally, “[A] person suffering from dementia may be unable to rationally understand

the reasons for his sentence; if so, the Eighth Amendment does not allow his execution.” Madison,

139 S. Ct. at 726-27. The Eighth Amendment applies similarly to a prisoner suffering from

dementia as to one experiencing psychotic delusions, because either condition may impede the

requisite comprehension of his punishment.” /d. at 722. As the Supreme Court of the United States

has made clear, “[w]hat matters is whether a person has the ‘rational understanding’ Panetti

requires—not whether he has any particular memory or any particular mental illness.” /d. at 727.

Owen lacks a rational understanding of the connection between his crime and impending execution

due to his fixed psychotic delusions and dementia.

Owen’s claim regarding his incompetency to be executed only became ripe on May 9,

2023, when his death warrant was signed. “Mental competency to be executed is measured at the

time of execution, not years before then. A claim that a death row inmate is not mentally competent

means nothing unless the time for execution is drawing nigh.” Jompkins v. Sec'y, Dept. of Corr.,

557 F.3d 1257, 1260 (11th Cir. 2009) (citing Panetti, 551 U.S. at 946) (explaining that it is not

possible to resolve a petitioner’s Ford claim “before execution is imminent”). “It is not ripe years

before the time of execution because mental conditions of prisoners vary over time.” /d. (citing

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 3 of 8

Panetti, 551 U.S. at 943). Accordingly, Owen’s Petition Under 28 U.S.C. § 2254 for Writ of

Habeas Corpus, filed simultaneously with this motion, is not second or successive. Stewart v.

Martinez-Villareal, 523 U.S. 637, 644 (1998) (“respondent was not required to get authorization

to file a ‘second or successive’ application before his Ford claim could be heard”).

Owen has not delayed in the filing of this motion. On May 9, 2023, the Governor issued a

death warrant for Owen. The Warden set the execution for June 15, 2023 at 6:00 P.M. Due to

concerns with Owen’s competency after the death warrant was signed, Owen’s counsel invoked

section 922.07(1), Florida Statutes on May 17, 2023. On May 22, 2023, the Governor appointed

three psychiatrists to determine whether Owen understands the nature and effect of the death

penalty and why it is to be imposed upon him. Fla. Exec. Order No. 23-106 (May 22, 2023). On

May 23, 2023, a panel of three psychiatrists (“the Commission”), all present at the same time,

evaluated Owen for approximately 100 minutes. The Commission issued their report on May 24,

2023. The Governor adopted the Commission’s conclusion that “O[wen] has the mental capacity

to understand the nature of the death penalty and the reasons why it is to be imposed upon him.”

Fla. Exec. Order No. 23-116 (May 25, 2023). However, the findings of the Commission and the

Governor conflicted with the findings of Dr. Hyman Eisenstein, a neuropsychologist, who

evaluated Owen and conducted testing on May 15, 2023 and May 30, 2023, for a total of 13 hours

and 15 minutes. Dr. Eisenstein opined that Owen was incompetent to be executed due to his

delusions, schizophrenia, and dementia.

On May 26, 2023, the circuit court held a status conference to schedule the rule 3.812

hearing. On June 1, 2023, Owen filed a motion pursuant to Florida Rule of Criminal Procedure

3.811(d). The circuit court heard testimony at a rule 3.812 hearing on June 1-2, 2023. The circuit

court issued an order finding Owen sane to be executed on June 4, 2023. The Supreme Court of

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 4 of 8

Florida issued an opinion affirming the circuit court’s order on June 9, 2023. As a result, this is the

first instance Owen could file this only now ripe Petition.

In the instant case, the state courts placed undue emphasis on Owen’s past competency and

mental illness instead solely focusing on his present mental condition. The state courts also put the

credibility of the Commission who saw Owen for approximately 100 minutes and administered no

testing above the credibility of Dr. Eisenstein who evaluated Owen for over 13 hours and

administered a battery of testing. The Florida Supreme Court affirmed the circuit court’s order

which failed to properly make a finding regarding whether Owen had a “rational understanding”

of the connection between [his] crimes and his execution.” Ferguson v. Sec’y, Florida Dept. of

Corr, 716 F.3d 1315, 1336 (11th Cir. 2013); see also Panetti, 551 U.S. at 958. “A prisoner’s

awareness of the State’s rationale for an execution is not the same as a rational understanding of

it.” Panetti, 551 U.S. at 959. In addition, the state courts made no determination regarding Owen’s

dementia and whether that affects Owen’s rational understanding. Madison, 139 S. Ct. at 726-27.

The findings of the state courts directly contradict the holdings in Panetti and Madison.

“The prohibition [on carrying out a sentence of death] applies despite a prisoner's earlier

competency to be held responsible for committing a crime and to be tried for it. Prior findings of

competency do not foreclose a prisoner from proving he is incompetent to be executed because of

his present mental condition.” Panetti, 551 U.S. at 934. Consequently, the state court’s

adjudication of Owen’s competency to be executed claim resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States. 28 U.S.C. § 2254(d)(1). Further, the state court’s decision

was based on an unreasonable determination of the facts in light of the evidence presented in the

state court proceeding. 28 U.S.C. § 2254(d)(2).

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 5 of 8

This Court has the authority to stay these proceedings and in the interest of protecting

Owen’s constitutional rights, should stay the execution.

A justice or judge of the United States before whom a habeas corpus proceeding is

pending, may, before final judgment or after final judgment of discharge, or

pending appeal, stay any proceeding against the person detained in any State court

or by or under the authority of any State for any matter involved in the habeas

corpus proceeding.

28 U.S.C. § 2251(a)(1). A habeas corpus proceeding is pending due to the contemporaneously

filed Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus.

Owen has made a strong showing that he is likely to succeed on the merits, it is indisputable

he will be irreparably harmed if his execution is allowed to go forward, and the balance of equities

weigh heavily in favor of a stay. See Nken v. Holder, 556 U.S. 418, 434 (2009). Florida’s interest

in the timely enforcement of judgments handed down by its courts must be weighed against

Owen’s continued interest in his life. See Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289

(1998) (“[I]t is incorrect . . . to say that a prisoner has been deprived of all interest in his life before

his execution.”) (O'Connor, J., plurality opinion). On the one hand, Florida has a minimal interest

in finality and efficient enforcement of judgments. On the other, Owen, whose delusions and

dementia prevent him from rationally understanding the consequences of his execution, has a right

in ensuring that his execution comports with the United States Constitution. This right includes

the ability to have meaningful judicial review of the complex constitutional claims he timely raises.

“Approving the execution of a defendant before his appeal is decided on the merits would clearly

be improper.” Barefoot v. Estelle, 463 U.S. 880, 889 (1983).

The Supreme Court of the United States has stated:

we may seriously question the retributive value of executing a person who has no

comprehension of why he has been singled out and stripped of his fundamental

right to life. Similarly, the natural abhorrence civilized societies feel at killing one

who has no capacity to come to grips with his own conscience or deity is still vivid

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 6 of 8

today. And the intuition that such an execution simply offends humanity is evidently

shared across this Nation. Faced with such widespread evidence of a restriction

upon sovereign power, this Court is compelled to conclude that the Eighth

Amendment prohibits a State from carrying out a sentence of death upon a prisoner

who is insane. Whether its aim be to protect the condemned from fear and pain

without comfort of understanding, or to protect the dignity of society itself from the

barbarity of exacting mindless vengeance, the restriction finds enforcement in the

Eighth Amendment.

Ford, 477 U.S. at 409-10 (internal citation omitted). These sentiments are exactly why public

interest demands a stay and Owen’s Petition deserves to be considered outside of the accelerated

constraints of his execution being scheduled mere days later. In addition, the irreversible nature of

the death penalty frequently supports in favor of granting a stay. “[A] death sentence cannot begin

to be carried out by the State while substantial legal issues remain outstanding.” Barefoot v. Estelle,

463 U.S. 880, 888 (1983). Therefore, this Court should grant a stay to decide Owen’s legal issues

on the merits.

In the contemporaneously filed Petition Under 28 U.S.C. § 2254 for Writ of Habeas

Corpus, Owen respectfully requests leave to file a memorandum of law in support of his Petition,

and to exceed the page limit. Granting a stay would allow Owen to aid the Court by filing a

cohesive memorandum of law.

Based on the state court’s decision being contrary to, or involved an unreasonable

application of, clearly established Federal law, and being based on an unreasonable determination

of the facts presented in the state court proceeding, Owen asks this Court to stay his execution,

currently scheduled for Thursday, June 15, 2023 at 6:00 p.m., to give this Court an opportunity to

properly adjudicate Owen’s claims in his habeas petition which only now became ripe.

After reviewing the facts and researching applicable legal principles, we certify that this

motion in fact presents a true emergency (as opposed to a matter that may need only expedited

treatment) and requires an immediate ruling because the Court would not be able to provide

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 7 of 8

meaningful relief to a critical, non-routine issue after the expiration of seven days. We understand

that an unwarranted certification may lead to sanctions.

Respectfully submitted,

/s/ Lisa M. Fusaro

Lisa M. Fusaro

Assistant CCRC

Florida Bar Number 119074

Email: fusaro@ccmr:state.fl.us

/s/ Morgan P. Laurienzo

Morgan P. Laurienzo

Assistant CCRC

Florida Bar Number 1022658

Email: laurienzo@ccmr:state.fl.us

The Law Office of the Capital Collateral

Regional Counsel - Middle Region

12973 North Telecom Parkway

Temple Terrace, Florida 33637

Tel: (813) 558-1600

Fax: (813) 558-1601

Secondary Email: support@ccmr.state. fl.us

Counsel for Duane E. Owen

Case 9:23-cv-80901-RS Document 3 Entered on FLSD Docket 06/09/2023 Page 8 of 8

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of June, 2023, I electronically filed the

foregoing with the Clerk of the Court by using the CM/ECF system, which will send notice of

electronic filing to Chief Assistant Attorney General Celia Terenzio at

Celia.Terenzio@myfloridalegal.com and capapp@myfloridalegal.com; Senior Assistant Attorney

General Leslie Campbell at Leslie.Campbell@myfloridalegal.com; Chief Legal Counsel Philip A.

Fowler at Philip.Fowler@fdc.myflorida.ccom; Senior Attorney Christina Porrello at

Christina.Porrello@fdc.myflorida.com; and the Florida Supreme Court, at warrant@flcourts.org.

I further certify that a true copy of the foregoing was mailed to the following non-CM/ECF

participant: Duane E. Owen, DOC# 101660, Florida State Prison, P.O. Box 800, Raiford, Florida

32083.

/s/ Lisa M. Fusaro

Lisa M. Fusaro

Assistant CCRC

Florida Bar Number 119074

Email: fusaro@ccmr:state.fl.us

The Law Office of the Capital Collateral

Regional Counsel - Middle Region

12973 North Telecom Parkway

Temple Terrace, Florida 33637

Tel: (813) 558-1600

Fax: (813) 558-1601

Secondary Email: support@ccmr.state.fl.us

Case 9:23-cv-80901-RS Document 8 Entered on FLSD Docket 06/11/2023 Page 1 of 5

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 23-80901-CV-SMITH

DUANE E. OWEN,

Petitioner,

Vv.

RICKY DIXON, et al.,

Respondents.

/

ORDER DENYING EMERGENCY MOTION FOR STAY OF EXECUTION

This case is currently before the Court on Petitioner, Duane E. Owen’s Emergency Motion

for Stay of Execution [DE 3], filed in conjunction with Petitioner’s Petition Under 28 U.S.C. §

2254 for Writ of Habeas Corpus By a Person in State Custody [DE 1], and the State’s Response to

Emergency Motion for Stay of Execution [DE 6]. Petitioner, an inmate in state custody, is

scheduled to be executed on Thursday, June 15, 2023 at 6:00 p.m. Petitioner, arguing that he is

incompetent to be executed, seeks to stay his execution. Petitioner claims that he is not competent

to be executed because he suffers from schizophrenia and dementia.

Inmates seeking a stay of execution must satisfy all the requirements for a stay. Hill v.

McDonough, 547 U.S. 573, 584 (2006). Those requirements are: “(1) whether the stay applicant

has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will

be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the

other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder,

556 U.S. 418, 426 (2009). Ifa petitioner fails to establish any of these requirements, a court must

deny the stay. See Valle v. Singer, 655 F.3d 1223, 1225 (11th Cir. 2011) (“Because Valle has

Case 9:23-cv-80901-RS Document 8 Entered on FLSD Docket 06/11/2023 Page 2 of 5

failed to show a substantial likelihood of success on the merits, we need not address the other three

requirements for issuance of a stay of execution.”). To meet the first requirement, Petitioner must

show that he is likely to succeed in establishing that he is incompetent. A petitioner claiming

incompetence must show that he lacks a “‘rational understanding’ of the connection between [his]

crimes and his execution.” Ferguson v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir.

2013) (quoting Panetti v. Quarterman, 551 U.S. 930, 935, 958-59 (2007)). Because Petitioner

must show he is likely to succeed on the merits, he must show that he is likely to succeed on his

claim for a writ of habeas corpus based on his alleged incompetence.

A prisoner in state custody may not be granted a writ of habeas corpus for any claim that

was adjudicated on the merits in state court unless the state court’s decision was (1) “contrary to,

or involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) “based on an unreasonable determination of the facts

in light of the evidence presented” to the state court. 28 U.S.C. § 2254(d)(1), (2); see Williams v.

Taylor, 529 U.S. 362, 405-06 (2000); Fugate v. Head, 261 F.3d 1206, 1215-16 (11th Cir. 2001).

A state court decision is “contrary to” or an “unreasonable application of” the Supreme

Court’s clearly established precedent within the meaning of § 2254(d)(1) only if the state court

applies a rule that contradicts the governing law as set forth in Supreme Court case law, or if the

state court confronts a set of facts that are materially indistinguishable from those in a decision of

the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent.

Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 405-06. So long as neither the

reasoning nor the result of the state court decision contradicts Supreme Court decisions, the state

court’s decision will not be disturbed. Karly v. Packer, 537 U.S. 3, 8 (2002).

Case 9:23-cv-80901-RS Document 8 Entered on FLSD Docket 06/11/2023 Page 3 of 5

Further, a federal court must presume the correctness of the state court’s factual findings

unless the petitioner overcomes them by clear and convincing evidence. See 28 U.S.C. §

2254(e)(1); Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). Thus, a court “must defer to

the state circuit court’s credibility determination, which is a factual finding.” Rimmer v. Sec’y,

Fla. Dep’t of Corr., 876 F.3d 1039, 1055 (11th Cir. 2017). Additionally, the petitioner carries the

burden of proof and the § 2254(d)(1) standard is a high hurdle to overcome. See Cullen v.

Pinholster, 563 U.S. 170, 181 (2011) (acknowledging that § 2254(d) places a difficult burden of

proof on the petitioner).

Petitioner raises two issues. First, Petitioner argues that the state court made an

unreasonable determination of the facts in light of the evidence presented. Petitioner argues that

the state court incorrectly weighed the evidence regarding Petitioner’s mental illness. Petitioner

argues that the state court gave more weight to the opinions of the three-member Commission of

psychiatrists authorized by the governor than to Petitioner’s doctors. However, as set out above,

a federal court must presume the correctness of the state court’s factual findings unless the

petitioner overcomes them by clear and convincing evidence. Petitioner has not met this burden.

The state trial court explained its reasoning for affording more weight to the Commission’s

opinions than Petitioner’s witnesses and Petitioner has not shown that the state court’s reasons

were unreasonable. Petitioner further argues that state circuit court failed to make a finding that

Petitioner had a rational understanding of the connection between his crimes and his execution.

The state circuit court, however, found that Petitioner was sane, did not have any mental illness,

and “there is no evidence that [] mental illness interferes, in any way, with his ‘rational

understanding’ of the fact of his pending execution and the reason for it.” State v. Owen, Case No.

04-2023-CA-000264 at 21 (opinion filed at DE 1-2).

Case 9:23-cv-80901-RS Document 8 Entered on FLSD Docket 06/11/2023 Page 4 of 5

Petitioner further argues that the state court improperly focused on Petitioner’s mental state

in the past. A review of the state court’s decision, however, indicates that it considered Petitioner’s

past and present mental state. According to the state court opinion, a member of the Commission

testified that Petitioner “specifically told the Commission that the State of Florida was going to

kill him for having killed the two women; but that sadly enough that’s what he did; and that he

didn’t know how they think it was okay to kill him for killing them.” The state court then found

that “[t]hese statements very clearly demonstrate Mr. Owen understands the nature and effect of

the death penalty and why it is to be imposed on him.” /d. at 10-11. Members of the Commission

also testified: that Petitioner has no mental illness and is feigning psychopathology to avoid the

death penalty; that Petitioner showed no signs of dementia; that Petitioner is not phychotic and

knows exactly what is going on; and that Petitioner showed no signs of any mental illness during

the Commissions interview. /d. at 14-16. All of this testimony contradicts Petitioner’s argument

that the state court improperly focused on Petitioner’s past mental state. Thus, Petitioner has not

shown by clear and convincing evidence that state circuit court’s finding regarding his current

mental state was incorrect.

Second, Petitioner argues that the state court’s decision was contrary to, or involved an

unreasonable application, of clearly established federal law because the decision was based on an

unreasonable determination of the facts presented in the state court proceeding. However, because

Petitioner has not shown that the state court’s factual findings were incorrect, Petitioner cannot

establish that the state court’s decision was contrary to clearly established law.

Consequently, Petitioner has not established the first requirement for a stay — a strong

showing that he is likely to succeed on the merits. Accordingly, it is

Case 9:23-cv-80901-RS Document 8 Entered on FLSD Docket 06/11/2023 Page 5of5

ORDERED that Petitioner, Duane E. Owen’s Emergency Motion for Stay of Execution

[DE 3] is DENIED with prejudice and the Court will not entertain a motion for reconsideration.

DONE AND ORDERED in Fort Lauderdale, Florida, this 11th day of June, 2023.

oy SL

RODNEY S

UNITED STATES DISTRICT JUDGE

ce: All counsel of record