Reply Brief — Loran Cole, Petitioner v. Florida

No.24-5389

IN THE SUPREME COURT OF THE UNITED STATES

_________________________

LORAN COLE,

PETITIONER,

VS.

STATE OF FLORIDA,

RESPONDENT.

________________________________

____________________________________________________________

On Petition for a Writ of Certiorari to the Supreme Court of Florida

____________________________________________________________

REPLY TO BRIEF IN OPPOSITION TO CERTIORARI

____________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, AUGUST 29, 2024, AT 6:00 PM

____________________________________________________________

ALI A. SHAKOOR*

FLORIDA BAR NO.: 0669830

EMAIL: SHAKOOR@CCMR.STATE.FL.US

ADRIENNE JOY SHEPHERD

FLORIDA BAR NO.: 1000532

EMAIL: SHEPHERD@CCMR.STATE.FL.US

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 NORTH TELECOM PARKWAY

TEMPLE TERRACE, FLORIDA 33637

PHONE: (813) 558-1600

SECONDARY EMAIL: SUPPORT@CCMR.STATE.FL.US

*COUNSEL OF RECORD

TABLE OF CONTENTS

TABLE OF CONTENTS …………………………….………………………………………..i

TABLE OF AUTHORITIES…………………………………….……………………………ii

PRELIMINARY STATEMENT………………………………………………………………1

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT…………...………1

CONCLUSION ……………………………………………………………………...………..12

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TABLE OF AUTHORITIES

Cases

Asay v. State,

224 So. 3d 695, 701 (Fla. 2017)………………………………………………………3

Barr v. City of Columbia,

378 U.S. 146 (1964) ……………………………………………………………...…..11

Baze v. Rees,

553 U.S. 35 (2008) ……………………………………………………..………………3

Correll v. State,

184 So. 3d 478 (Fla. 2015) …………………………………………………………..10

Davis v. State,

142 So. 3d 867 (Fla. 2014)…………………………………………………………9,10

Eisenstadt v. Baird,

405 U.S. 438 (1972) ……………………………………...…………………………..12

.

Ford v. Wainwright,

477 U.S. 399 (1986) …………………………………………………………………1,2

Glossip v. Gross,

576 U.S. 863 (2015) ……………………………………………………….…………..3

Hathorn v. Lovorn,

457 U.S. 255 (1982)…………………………………………………………………..11

Henry v. State,

134 So. 3d 938 (Fla. 2014) …………………………………………………….....,9,10

Howell v. State,

133 So. 3d 511 (Fla. 2014) ………………………………………………………..8,10

Johnson v. State,

486 U.S. 578 (1988) ………………………………………………………………….11

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McLaughlin v. Florida,

379 U.S. 184 (1964) …………………………………………………………………12

Panetti v. Quarterman,

551 U.S. 930 (2007) …………………………………………………..…………….1,2

Skinner v. Oklahoma,

316 U.S. 535 (1942) ………………………………………………………….………12

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PRELIMINARY STATEMENT

Petitioner, Loran Cole, offers the following reply to the Brief in Opposition from

the Respondent (“BIO”). Cole will not reply to every issue and argument raised by

Florida and will only address specific points. Cole expressly does not abandon any

issue not specifically replied to herein and relies upon his Petition for a Writ of

Certiorari (“Petition”) in reply to any argument or authority not specifically

addressed. This reply will focus on Florida violating Cole’s 14th Amendment rights to

due process and equal protection, by denying him an evidentiary hearing for his asapplied challenge to Florida’s lethal injection protocols.

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT

Florida violated Cole’s rights to due process and equal protection pursuant to

the 14th Amendment of the United States Constitution, by failing to hold an

evidentiary hearing for his as-applied challenge to his execution by lethal injection.

The BIO does not negate the fact that Cole is being treated differently than past

similarly situated capital litigants who raised an as-applied challenge to Florida’s

lethal injection protocols; those defendants received evidentiary hearings to provide

factual development for their claims. Petition at 7-9.

In Panetti v. Quarterman, 551 U.S. 930, 949-50 (2007), this Court opined on

what minimum due process safeguards are required for a capital defendant

challenging his sentence under the Eighth Amendment, to be qualify for execution

based on a mental condition. This Court cited directly to Ford v. Wainwright, 477

U.S. 399 (1986), in opining that Texas’s state-court competency proceedings were

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inadequate to provide 8th Amendment protections to capital litigants claiming to be

“insane,” and therefore not subject to execution:

Once a prisoner seeking a stay of execution has made “a substantial

threshold showing of insanity,” the protection afforded by procedural

due process includes a “fair hearing” in accord with fundamental

fairness. Ford, 477 U.S., at 426, 424, 106 S.Ct. 2595 (opinion concurring

in part and concurring in judgment) (internal quotation marks omitted).

This protection means a prisoner must be accorded an “opportunity to

be heard,” id., at 424, 106 S.Ct. 2595 (internal quotation marks omitted),

though “a constitutionally acceptable procedure may be far less formal

than a trial,” id., at 427, 106 S.Ct. 2595. As an example of why the state

procedures on review in Ford were deficient, Justice Powell explained,

the determination of sanity “appear[ed] to have been made solely on the

basis of the examinations performed by state-appointed psychiatrists.”

Id., at 424, 106 S.Ct. 2595. “Such a procedure invites arbitrariness and

error by preventing the affected parties from offering contrary medical

evidence or even from explaining the inadequacies of the State’s

examinations.” Ibid.

Justice Powell did not set forth “the precise limits that due process

imposes in this area.” Id., at 427, 106 S.Ct. 2595. He observed that a

State “should have substantial leeway to determine what process best

balances the various interests at stake” once it has met the “basic

requirements” required by due process. Ibid. These basic requirements

include an opportunity to submit “evidence and argument from the

prisoner’s counsel, including expert psychiatric evidence that may differ

from the State’s own psychiatric examination.” Ibid.

Panetti at 949-50. In granting Panetti relief, this Court specifically stated:

The procedures the state court provided petitioner were so deficient that

they cannot be reconciled with any reasonable interpretation of the Ford

rule. It is uncontested that petitioner made a substantial showing of

incompetency. It is also evident from the record, however, that the state

court reached its competency determination without holding a hearing

or providing petitioner with an adequate opportunity to provide his own

expert evidence. Moreover, there is a strong argument that the court

violated state law by failing to provide a competency hearing.

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Id. at 932. Cole’s trial court reached a determination of his as-applied claim without

holding an evidentiary hearing, nor providing Cole an adequate opportunity to

provide his own expert’s testimony. Similar to a capital litigant who is claiming that

he is constitutionally ineligible for execution under the Eighth Amendment based on

a mental condition, Cole’s as-applied challenge alleges that his medical condition

places him in a class of people who may not experience lethal injection under the

Eighth Amendment.

Cole also made a “substantial threshold showing” of his medical condition in

his successive pleading for this claim. The Eighth Amendment prohibits the infliction

of “cruel and unusual punishments.” Glossip v. Gross, 576 U.S. 863, 876 (2015). To

succeed on an Eighth Amendment method-of-execution claim, Cole needs to: (1)

establish that the method of execution presents a substantial and imminent risk that

is sure or very likely to cause serious illness and needless suffering, and also (2)

identify a known and available alternative method of execution that entails a

significantly less severe risk of pain. See Asay v. State, 224 So. 3d 695, 701 (Fla. 2017)

(citing Glossip, 576 U.S. at 877 and Baze, 553 U.S. 35, 50, 61 (2008)).

Cole suffers from Parkinson’s disease, a progressive neurological disorder

which causes him to experience significant symptoms. Parkinson’s can cause a host

of physical symptoms, including tremors, shaking, and involuntary movements of the

body. There are multiple references to these symptoms in Cole’s recent medical

records which show that Cole has been experiencing these symptoms since as far back

as 2017. A September 2017 Request for Pre-Approval of Health Care Services notes

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“involuntary movements hands (bilaterally)” and references a Parkinson’s diagnosis.

SC/693. A September 2017 Radiology Request form again references a Parkinson’s

diagnosis. SC/733. An August 2017 Chronological Record of Health Care notes that

Cole’s hands and arms would not stop shaking and he “presents with both hands

shaking

without

ceasing.”

SC/1087.

A

September

2018

Consultation

Request/Consultant’s Report describes Cole as a 52-year-old white male with

involuntary tremors. SC/691. A December 17, 2018 Radiology Request Form notes

“involuntary movements” and “altered mental state.” SC/727. A January 2019

Chronological Record of Health Care references a tremor in Cole’s hands and states

that the “[t]remors appear more Parkinson’s at this point.” SC/761. An April 5, 2019

Periodic Screening Encounter indicates that Cole responded he was “still shaky.”

SC/600. Cole reports that he never received proper or appropriate health care for his

Parkinson’s from the Florida Department of Corrections (“FDOC”), and his

Parkinson’s symptoms have progressed far beyond what they were in 2017. Cole now

experiences shaking in both of his arms from his neck to his fingertips and in his legs.

Cole’s Parkinson’s symptoms will make it impossible for Florida to safely and

humanely carry out his execution because his involuntary body movements will affect

the placement of the intravenous lines necessary to carry out an execution by lethal

injection. The March 10, 2023 Florida FDOC lethal injection procedures describe the

placement of the necessary venous lines as follows:

(h)

Unless the team warden has previously determined to gain venous

access through a central line, a designated team member will insert

one intravenous (IV) line into each arm at the medial aspect of the

antecubital fossa of the inmate and ensure that the saline drip is

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flowing freely. The team member will designate one IV line as the

primary line and clearly identify it with the number "l." The team

member will designate the other line as the secondary line and

clearly identify it with the number "2." If venous access cannot be

achieved in either or both of the arms, access will be secured at other

appropriate sites until peripheral venous access is achieved at two

separate locations, one identified as the primary injection site and

the other identified as the secondary injection site.

(i)

If peripheral venous access cannot be achieved, a designated team

member will perform a central venous line placement, with or

without a venous cut-down (wherein a vein is exposed surgically and

a cannula is inserted), at one or more sites deemed appropriate by

that team member. If two sites are accessed, each line will be

identified with an “l" or a "2," depending on their identification as

the primary and secondary lines.

See SC/1064.

The FDOC procedures explain that if peripheral venous access cannot be

achieved, then a designated execution team member will perform a central venous

line placement in order to gain the venous access necessary to complete the lethal

injection. Undersigned counsel has hired anesthesiologist Dr. Joel Zivot, who is

available and willing to testify to the substantial risk of needless pain and suffering

that Cole faces if executed by lethal injection due to the unique symptoms of his

Parkinson’s. Dr. Zivot is an associate professor and senior member of the

Departments of Anesthesiology and Surgery at Emory University School of Medicine

in Atlanta, Georgia. He is board certified in both anesthesiology and critical care

medicine. Dr. Zivot has reviewed medical records for Cole and the FDOC lethal

injection procedures and can opine that Cole suffers from significant and untreated

Parkinson’s disease that results in abnormal and involuntary muscle movements.

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Consequently, the attempt to place and secure two separate intravenous lines for the

purpose of execution creates a substantial risk of illness and injury and a high

likelihood of suffering. Dr. Zivot reviewed Cole’s medical records and found several

mentions that Cole suffers from Parkinson’s disease. Parkinson’s is a progressive

neurological disorder which manifests as a classic symptomatic tetrad that includes

a generalized involuntary tremor, generalized and specific rigidness of the body, and

an impingement of fluid body movement that makes walking and other movements

more difficult. Nonmotor symptoms of Secondary Parkinson’s disease include

cognitive dysfunction and a host of autonomic nervous system conditions, including

orthostasis. Cole suffers from significant involuntary tremors in his arms and legs.

He also suffers from periodic blackouts that may be attributed to his Parkinson’s

disease. Cole is not currently receiving any treatment for his Parkinson’s condition

and is not taking any medication for the disease.

The FDOC lethal injection procedures require the placement of two separate

intravenous catheters to provide a route of administration of the execution chemicals.

Cole’s untreated Parkinson’s disease will make the placing of two intravenous

catheters very difficult, needlessly painful, and unreasonably dangerous. As a direct

consequence, he faces a substantial risk of illness by injury and needless suffering.

When placing an intravenous line, each failed attempt creates a one-and-done for that

vein. Each attempt is singularly painful, and the pain will only escalate with each

successive attempt to place an intravenous line. Should FDOC fail to find a peripheral

vein in Cole’s arms or legs, the lethal injection protocol directs the placement of a

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central intravenous line. The skill needed to do this is beyond an average person

capable of placing intravenous lines in the arms or legs. The central vein location

includes the groin, the neck, and below the collarbone. In each of these locations, the

vein cannot be seen or felt but must be located by anatomical landmarks. In each of

these locations, a large artery containing flowing blood under great pressure abuts

against the vein. In the case of the neck and sub-collarbone location, an improperly

placed needle can collapse the lung, causing a profound inability to breathe and the

possibility of death by tension pneumothorax.

The FDOC procedures allow for a “cut down” to locate a vein in the central

position. This procedure requires the use of anesthesia in the region, as it involves

applying a sharp blade to the skin and subcutaneous tissue and making an opening

sufficient to reveal the location of a vein. The FDOC procedures make no mention of

anesthesia and do not further define precisely how this would be carried out. If FDOC

can secure two separate and working intravenous sites, Cole will still have ongoing

involuntary muscle movements, which can and will dislodge the catheters. To secure

Cole's body and block muscle movements, an extremely high amount of forceful

restraint will need to be applied. Such force would subject Cole to needless suffering,

cruelty, and pain.

A full and fair evidentiary hearing is necessary for Dr. Zivot to testify to the

full effect of his opinions concerning the needless pain that Cole will experience if

executed by lethal injection. Dr. Zivot can testify about how the progressive nature of

Cole’s Parkinson’s disease means Cole’s condition has worsened over the years. Cole

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made a timely request for an evidentiary hearing. Florida failed to conduct such a

hearing for Cole, in violation of his Fourteenth Amendment rights to due process and

equal protection. Florida has treated past similarly situated capital litigants in an

active death warrant posture differently than Cole, to his detriment.

In 2014, the Florida Supreme Court (“FSC”) relinquished jurisdiction to the

lower court to hold an evidentiary hearing on Paul Howell’s as-applied challenge to

Florida’s previous use of midazolam in executions, explaining that “because Howell

raised factual as-applied challenges and relied on new evidence not yet considered by

this Court … this Court relinquished jurisdiction for an evidentiary hearing.” Howell

v. State, 133 So. 3d 511, 515 (Fla. 2014). The FSC particularly rejected the lower

court’s summary denial of the claim in stating that an evidentiary hearing was

unnecessary, based on Howell’s claims being “speculative in nature.” Id. After the

relinquishment, the trial court held a two-day hearing and “carefully considered the

testimony submitted.” Id. at 519. Like Howell, Cole raised a factual as-applied

challenge based on evidence of his Parkinson’s disease that had not been considered

by the FSC previously. Cole should have been afforded the same relinquishment for

an evidentiary hearing as Howell, yet the FSC denied Cole that opportunity. Denying

Cole the same rights as Howell, who was also under an active death warrant, violates

Cole’s due process and equal protection rights.

Also in 2014, and during an active death warrant, the FSC relinquished

jurisdiction to the lower court to hold an evidentiary hearing on Robert Henry’s asapplied challenge to Florida’s lethal injection protocol related to his hypertension,

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high cholesterol level, and coronary artery disease. Henry v. State, 134 So. 3d 938,

943 (Fla. 2014). The FSC relinquished jurisdiction following Henry’s appeal of the

circuit court’s summary denial of his initial as-applied challenge during active death

warrant successive proceedings. Based on the FSC’s order, the state circuit court held

an evidentiary hearing during which both sides called medical experts to testify

concerning Henry’s unique medical condition. See id. at 944. Denying Cole the same

rights as Henry, who was also under an active death warrant, violates Cole’s due

process and equal protection rights.

A third time in 2014, the FSC relinquished jurisdiction to the lower court to

hold an evidentiary hearing on Eddie Wayne Davis’s as-applied challenge to Florida’s

execution procedures based on his diagnosis of porphyria. Davis v. State, 142 So. 3d

867, 870 (Fla. 2014). The FSC explained that the court relinquished jurisdiction

based, in part, on the “constitutional obligation to ensure that the method of lethal

injection in this state comports with the Eighth Amendment.” Id. Specifically, the

FSC appeared to understand the due process implications of fully litigating an asapplied challenge, along with the necessity to treat Florida’s capital litigants equally:

Along with his motion for stay of execution, Davis attached an affidavit,

which he had not produced during the circuit court proceedings, alleging

that he suffers from the medical condition porphyria, and that the use

of midazolam hydrochloride as the first drug of Florida’s lethal injection

protocol, as applied to him, is unconstitutional. Specifically, the affidavit

of Dr. Joel Zivot stated that it is his expert medical opinion “that a

substantial risk exists that, during the execution, Mr. Davis will suffer

from extreme or excruciating pain as a result of abdominal pain,

tachycardia, hypertension, nausea, and vomiting.” Based on the

allegations in the affidavit and our constitutional obligation to

ensure that the method of lethal injection in this state comports

with the Eighth Amendment, we relinquished jurisdiction to the

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circuit court, consistent with our prior decisions in Howell v.

State, 133 So.3d 511, 515 (Fla.), cert. denied, ––– U.S. ––––, 134 S.Ct.

1376, 188 L.Ed.2d 372 (2014), and Henry v. State, 134 So.3d 938,

944 (Fla.), cert. denied, ––– U.S. ––––, 134 S.Ct. 1536, 188 L.Ed.2d

466 (2014), to permit the parties and the circuit court to address

the allegations in Dr. Zivot’s affidavit, as related to Davis’ asapplied challenge. See Davis v. State, No. SC14–1178 (Fla.Sup.Ct.

order filed June 26, 2014). After holding a hearing and taking testimony,

the circuit court ultimately denied Davis’ claim.

Id (emphasis added). Despite the fact Davis provided belatedly attached findings

from the same Dr. Zivot, which had not been considered by Davis’s circuit court, the

FSC still relinquished jurisdiction to make sure the method of execution in the state

comported with the Eighth Amendment as applied to Davis. The FSC had the same

constitutional obligation in Cole’s case that was recognized by the FSC in Davis’s

case, and Cole should have been afforded the same opportunity for an evidentiary

hearing as Davis. The FSC denied Cole the opportunity. Denying Cole the same rights

as Davis, who was also under an active death warrant, violates Cole’s due process

and equal protection rights.

In 2015 the FSC relinquished jurisdiction to the lower court to hold an

evidentiary hearing on Jerry Correll’s as-applied challenge to Florida’s execution

procedures based on his alleged brain damage and history of alcohol and substance

use. Correll v. State, 184 So. 3d 478, 483 (Fla. 2015). Prior to the evidentiary hearing,

the FSC granted Correll’s motion for stay of proceedings and stay of execution which

was filed with his appeal of the lower court’s summary denial of his claims, which

subsequently allowed for enough time to hold the evidentiary hearing on Correll’s asapplied challenge. See id. at 482. An evidentiary hearing with multiple witnesses was

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subsequently held on Correll’s as-applied claim. Id. at 484. Same as Correll, Cole also

filed a motion to stay his proceedings and execution with his appeal to the FSC so

that a full and fair evidentiary hearing could be held on his as-applied challenge to

Florida’s execution procedures. Cole should have been afforded the same opportunity

as Correll for an evidentiary hearing and should have been granted a stay of

execution so that a full and fair evidentiary hearing could be conducted. The FSC

denied Cole that opportunity. Denying Cole the same rights as Correll, who was also

under an active death warrant, violates Cole’s due process and equal protection

rights.

Cole raises the four aforementioned Florida state cases to highlight Florida’s

blatant failure to follow its own precedent in protecting capital litigants’

constitutional rights after a signed death warrant. Moreover, Florida’s practice in

those cases, in contrast to its treatment of Cole, demonstrates the need for this

Court’s review, as Florida is not invoking its procedural rule “evenhandedly to all

similar claims,” and the procedural rule should have been “strictly or regularly

followed.” See Hathorn v. Lovorn, 457 U.S. 255, 263 (1982), citing Barr v. City of

Columbia, 378 U.S. 146, 149 (1964), and Johnson v. State, 486 U.S. 578, 587 (1988).

Florida cannot assert an adequate and independent state ground foreclosing this

Court’s intervention. Rather, Cole has proven to be an outlier as compared to

similarly postured capital defendants.

Cole is literally being deprived of his life, without “due process of law.”

Moreover, Cole’s equal protection rights are being infringed upon and distinctions in

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state criminal laws that impinge upon fundamental rights must be strictly

scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942); McLaughlin v.

Florida, 379 U.S. 184, 192 (1964); Eisenstadt v. Baird, 405 U.S. 438, 447 (1972). Cole

appears to be Florida’s only capital litigant who has had an as-applied challenge to

the lethal injection protocols under an active death warrant, without the benefit of

an evidentiary hearing for the trial court to make findings of fact regarding his

medical condition and the unconstitutional risks Cole’s execution will cause him to

suffer. Cole is simply requesting a stay of execution and the right to present his

findings in an evidentiary hearing, just like past same situated litigants. Cole is

facing grave suffering, and his execution is imminent. Cole respectfully pleads for

this Court’s intervention to protect his sacred rights under the United States

Constitution.

CONCLUSION

The petition for writ of certiorari should be granted.

s/Ali Shakoor

Ali Shakoor

Florida Bar No. 0669830

Law Office of the Capital Collateral

Regional Counsel – Middle Region

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

Phone No. (813)558-1600 Ext 603

Fax No. (813) 558-1601

Email: shakoor@ccmr.state.fl.us

*Attorney Of Record For Petitioner

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