Petition for Writ of Certiorari — Allen Ward Cox, Petitioner v. Florida

No. _____

IN THE

Supreme Court of the United States

_________________________________________________________________________

ALLEN WARD COX,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_________________________________________________________________________

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

PETITION FOR A WRIT OF CERTIORARI

CAPITAL CASE

David Dixon Hendry*

Florida Bar Number 160016

sylvesterslk320@yahoo.com

1800 Grant Street

Tampa, Florida 33605-6042

(813) 247-3154

CAPITAL CASE

QUESTION PRESENTED

1. Whether the Petitioner’s medical condition which includes brain damage

and dementia that results in impulse control deficits, impaired executive function

and emotional dysregulation, would subject Petitioner to cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution

if he is executed, based on evolving standards of decency that mark the progress of a

maturing society.

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page. Petitioner, Allen

Ward Cox, a death-sentenced Florida prisoner, was the appellant in the Supreme

Court of Florida. Respondent, State of Florida, was the appellee in the Supreme Court

of Florida.

LIST OF RELATED CASES

Trial

Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida

State of Florida v. Allen Ward Cox; Case number: 99-249-CF

Judgement entered: March 14, 2000. Death recommendation, March 18, 2000. Death

sentence imposed by court on July 24, 2000;

Direct Appeal

Supreme Court of Florida

Cox v. State, 819 So. 2d 705 (Fla. 2002); Case Number: SC2000 - 1751

Judgment entered: May 23, 2002; Rehearing denied: July 23, 2002.

Certiorari

Supreme Court of the United States

Cox v. Florida, 571 U.S. 1120 (2003); Case Number: 02-7094

Judgment entered: January 13, 2003; cert denied.

Postconviction Motion

Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida

Allen Ward Cox v. State of Florida; Case Number: 99-249-CF

Judgment entered: April 19, 2005; order denying postconviction relief (unpublished).

Appeal of denial of postconviction

Supreme Court of Florida

Cox v. State, 966 So. 2d 337 (Fla. 2007); Case Number: SC05-914.

Judgment entered: July 5, 2007; Rehearing denied: September 25, 2007.

State habeas petition

Supreme Court of Florida

Cox v. Secretary, 966 So. 2d 337 (Fla. 2007); Case Number: SC06-40

Judgment entered: July 5, 2007; Rehearing denied: September 25, 2007.

ii

Successive Postconviction Motion

Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida

Allen Ward Cox v. State of Florida; Case Number: 99-249-CF

Judgment entered: March 24, 2008; order denying postconviction

(unpublished). Rehearing denied: April 8, 2008.

relief

Appeal of Denial of Successive Postconviction Motion

Supreme Court of Florida

Cox v. State, 5 So. 3d 337 (Fla. 2009); Case Number: SC08-887

Judgment entered: March 12, 2009.

Federal habeas petition

United States District Court, Middle District. Florida, Ocala Division.

Cox v. McNeil, Case Number: 07-00425-CV-WTH-GRJ.

Judgment signed: April 8, 2009; Judgment entered: April 9, 2009.

Appeal from the denial of federal habeas petition

United States Court of Appeals, Eleventh Circuit.

Cox v. McNeil, 638 F. 3d 1356 (11th Cir. 2011); Case Number: 09-12480-P

Judgment entered: April 21, 2011.

Certiorari

Supreme Court of the United States

Cox v. Tucker, 565 U.S. 906 (2011); Case Number: 11–5424

Judgment Entered: October 3, 2011; cert denied.

Successive Postconviction motion

Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida

Allen Ward Cox v. State of Florida; Case Number: 99-249-CF

Judgment entered: July 23, 2017; order granting motion for postconviction relief.

(Pursuant to Hurst v. Florida, 577 U.S. 92 (Fla. 2016)).

Penalty Phase Trial (Hurst)

Circuit Court of the Fifth Judicial Circuit, in and for Lake County, Florida

State of Florida v. Allen Ward Cox; Case number: 99-249-CF

Death sentence imposed by court following unanimous death recommendation on

October 24, 2022.

Direct Appeal

Supreme Court of Florida

Cox v. State, 390 So. 3d 1189 (Fla. 2024); Case Number: SC2022 - 1553

Judgment entered: July 11, 2024.

iii

TABLE OF CONTENTS

CONTENTS

PAGE

QUESTION PRESENTED ............................................................................................. i

LIST OF PARTIES ........................................................................................................ ii

LIST OF RELATED CASES ......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

INDEX TO APPENDICES ........................................................................................... vi

TABLE OF AUTHORITIES ........................................................................................ vii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1

STATEMENT OF THE CASE....................................................................................... 1

I.

Procedural History......................................................................................... 1

REASONS FOR GRANTING PETITION ..................................................................... 3

A. It would be a violation of the Eighth Amendment to the United States

Constitution to execute Mr. Cox, because of the evolving standards of

decency that mark the progress of a maturing society ......................... . 3

B. It would be a violation of the Eighth Amendment to the United States

Constitution to execute Mr. Cox, considering the trial court findings

regarding his unique mental health disorders, which would place him

outside of the class of individuals to be executed based on this Court’s

reasoning in Atkins. ................................................................................ 9

C. It would be a violation of the Eighth Amendment to the United States

Constitution to execute Mr. Cox, considering other evidence of mental

impairment proven at trial regarding his unique mental health

iv

disorders, which would place him outside of the class of individuals to

be executed based on this Court’s reasoning in Atkins. ....................... 14

CONCLUSION............................................................................................................. 20

v

INDEX TO APPENDICES

[IN SEPARATE VOLUME]

Appendix A

Cox v. State, 390 So. 3d 1189 (Fla. 2024).

vi

TABLE OF AUTHORITIES

CASES

PAGE(S)

Atkins v. Virginia, 536 U.S. 304 (2002) ...............................................................passim

Coker v. Georgia, 433 U.S. 584 (1977) ......................................................................... 6

Cox v. Florida, 571 U.S. 1120 (2003) ............................................................................ ii

Cox v. McNeil, 638 F. 3d 1356 (11th Cir. 2011) ............................................................ ii

Cox v. Secretary, 966 So. 2d 337 (Fla. 2007) ................................................................. ii

Cox v. State, 819 So. 2d 705 (Fla. 2002) ................................................................... ii, 2

Cox v. State, 966 So. 2d 337 (Fla. 2007) ................................................................... ii, 2

Cox v. State, 5 So. 3d 337 (Fla. 2009) ........................................................................... ii

Cox v. State, 390 So. 3d 1189 (Fla. 2024) ............................................................. iii, 10

Cox v. Tucker, 565 U.S. 906 (2011) ............................................................................. iii

Eddings v. Oklahoma, 455 U.S. 104 (1982) .......................................................... 6, 17

Enmund v. Florida, 458 U.S. 782 (1982) ..................................................................... 6

Ford v. Wainwright, 477 U.S. 399 (1986) .................................................................... 6

Furman v. Georgia, 408 U.S. 238 (1972) .................................................................... 6

Godfrey v. Georgia, 446 U.S. 420 (1980) ...................................................................... 6

Hurst v. Florida, 577 U.S. 92 (2016) ...................................................................... iii, 2

Johnson v. Texas, 509 U.S. 350 (1993) ........................................................................ 6

Lockett v. Ohio, 438 U.S. 586 (1978) ...................................................................... 6, 17

Penry v. Lynaugh, 492 U.S. 302 (1989) ................................................................... 4, 7

Roper v. Simmons, 543 U.S. 551 (2005) .............................................................. passim

vii

CASES

PAGE(S)

Thompson v. Oklahoma, 487 U.S. 815 (1988) ....................................................... 6, 13

Trop v. Dulles, 356 U.S. 86 (1958) ........................................................................... 5, 9

CONSTITUTIONAL PROVISIONS

PAGE(S)

U.S. CONST. Amend. VIII ......................................................................................passim

STATUTES AND RULES

PAGE(S)

28 U.S.C. § 1257 ............................................................................................................. 1

viii

IN THE SUPREME COURT OF THE UNITED STATES

PETITION FOR A WRIT OF CERTIORARI

Allen Ward Cox respectfully petitions for a writ of certiorari to review the

judgment of the Supreme Court of Florida.

OPINIONS BELOW

This is a petition regarding the errors of the Supreme Court of Florida in

affirming the Circuit Court of The Fifth Judicial Circuit, In and For Lake County,

Florida. The opinion at issue is reported and reproduced at Appendix A (hereinafter

App. A).

JURISDICTION

The opinion of the Supreme Court of Florida was entered on July 11, 2024.

Jurisdiction of this Court is invoked under 28 U.S.C. §1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Eighth Amendment provides: Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted. U.S. Const.

Amend. VIII.

STATEMENT OF THE CASE

I.

Procedural History

Petitioner, Allen Ward Cox was charged by indictment in this capital case with

first-degree murder following an incident in December of 1998 at the Lake

Correctional Institute (“LCI”) which resulted in the death of a fellow inmate, Thomas

Baker. (R 2012-13). At the conclusion of his first trial, Mr. Cox was convicted and

1

sentenced to death. (R 2010). The Florida Supreme Court (“FSC”) affirmed his

sentence on direct appeal 1 in 2002 and affirmed the denial of his subsequent postconviction challenge2 in 2007. In July of 2017, Mr. Cox was granted a new penalty

phase pursuant to Hurst v. Florida, 577 U.S. 92 (2016). (R 627-635, 2011).

In April of 2022, the new penalty phase commenced, wherein the State sought

to prove four aggravating circumstances: (1) the murder was “committed by a person

previously

convicted

of

a

felony

and

under

sentence

of

imprisonment”

(“Imprisonment”); (2) the defendant was previously convicted of another violent

felony (“Prior Violent Felony”); (3) the murder was especially heinous, atrocious, or

cruel (“EHAC”); and (4) the murder was cold, calculated, and premeditated (“CCP”).

(R 643). Of these, only EHAC and CCP were contested. (T 612, 1754).

The defense sought to prove a total of 80 mitigating circumstances, two of

which were statutory: specifically, (1) “The capital felony was committed while the

defendant was under the influence of extreme mental or emotional disturbance” and

(2) “The capacity of the defendant to appreciate the criminality of his conduct or to

conform his conduct to the requirements of the law was substantially impaired.” (R

1842-1848, 2017-20).

At the conclusion of the 2022 penalty phase, the jury found that the State had

proven only two of the four aggravators presented: specifically, the “Imprisonment”

See Cox v. State, 819 So.2d 705 (Fla.2002), cert. denied, 537 U.S. 1120, 123 S.Ct.

889, 154 L.Ed.2d 799 (2003).

1

2

Cox v. State, 966 So. 2d 337 (Fla. 2007).

2

and “Prior Violent Felony” aggravators. (R 1832-34). The jury further found that the

aggravating

circumstances

outweighed

the

mitigating

circumstances

and

unanimously recommended a sentence of death. (R 1832-34). One or more jurors

found that one or more mitigating circumstances were established by the greater

weight of the evidence. (R 1833). The State and the Defense submitted sentencing

memorandums shortly thereafter. (R 1893-1933, 1934-2007).

On October 24, 2022, the trial court sentenced Appellant to death, and

contemporaneously issued a written sentencing order detailing the court’s

consideration and weighing of the aggravating and mitigating circumstances. (R

2010-54). In all, the court found that 57 mitigating circumstances had been

established and were entitled to weight. The court specifically found that:

(i)

Neither of the two statutory mitigating circumstances had been

established;

(ii)

Of the 78 non-statutory mitigating circumstances, 7 had not been

established; and,

(iii)

Of the 71 established non-statutory mitigating circumstances, 7

were “not mitigating under the facts of this case”. 3

The FSC affirmed the denial of relief on July 11, 2024. (App. A.). This petition follows.

REASONS FOR GRANTING THE PETITION

A. It would be a violation of the Eighth Amendment to the United

States Constitution to execute Mr. Cox, because of the evolving

standards of decency that mark the progress of a maturing

society.

3

(R 2034-35, 2037, 2044, 2046-47, 2048, 2053, 2061).

3

Mr. Cox’s death sentence is unconstitutional because evolving standards of

decency have reached the point where someone suffering from the severe mental

deficits that Mr. Cox does, cannot constitutionally be sentenced to death. This Court

has barred the execution of the intellectually disabled and the execution of juveniles

in Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005).

Both cases cited to evolving standards of decency in today’s society as the main factors

justifying vacation of those death sentences. In light of the principles announced in

Atkins and Simmons, and in light of the evolving standards of decency in today’s

society, this Court should grant the writ.

This Court reaffirmed the necessity of referring to the evolving standards of

decency that mark the progress of a maturing society to determine which

punishments are so disproportionate as to be cruel and unusual. This Court outlined

the similarities between its analysis of the constitutionality of executing juvenile

offenders and the constitutionality of executing the intellectually disabled.

Prior to 2002, this Court had refused to categorically exempt intellectually

disabled persons from capital punishment. Penry v. Lynaugh, 492 U.S. 302 (1989).

However, in Atkins v. Virginia, 536 U.S. 304 (2002), this Court held that standards

of decency had evolved in the 13 years since Penry and that a national consensus had

formed against such executions, demonstrating that the execution of the intellectual

disabled is cruel and unusual punishment. Atkins, Id. at 307. The majority opinion

found significant that 30 states prohibit the juvenile death penalty, including 12 that

have rejected the death penalty altogether. This Court counted the states with no

4

death penalty, pointing out that a State’s decision to bar the death penalty altogether

of necessity demonstrates a judgment that the death penalty is inappropriate for all

offenders, including juveniles.

In ruling that juvenile offenders cannot with reliability be classified as among

the worst offenders, the Roper v. Simmons Court found it significant that juveniles

are vulnerable to influence and susceptible to immature and irresponsible behavior.

In light of a juvenile’s diminished culpability, neither retribution nor deterrence

provides adequate justification for imposing the death penalty. Justice Kennedy,

writing for the majority, said: Retribution is not proportional if the law’s most severe

penalty is imposed on one whose culpability or blameworthiness is diminished, to a

substantial degree, by reason of youth and immaturity. Roper v. Simmons at 571.

Mr. Cox’s culpability and blameworthiness are diminished in this case. Mr.

Cox’s sentence of death violates the Eighth and Fourteenth Amendments prohibiting

cruel and unusual punishment, as well as the arbitrary and capricious imposition of

the ultimate penalty as applied.

Evolving standards of decency prevent the execution of Mr. Cox. The United

States Supreme Court has long recognized that:

The prohibition against cruel and unusual punishments, like other

expansive language in the Constitution, must be interpreted according

to its text, by considering history, tradition, and precedent, and with due

regard for its purpose and function in the constitutional design. To

implement this framework we have established the propriety and

affirmed the necessity of referring to the evolving standards of decency

that mark the progress of a maturing society to determine which

punishments are so disproportionate as to be cruel and unusual. Trop v.

Dulles, 356 U.S. 86, 100-101, 78 S.Ct. 590, 2 L.Ed.2d 630 (1958)

(plurality opinion).

5

Roper v. Simmons, 543 U.S. 551, 560-61(2005). Indeed:

Capital punishment must be limited to those offenders who commit a

narrow category of the most serious crimes and whose extreme

culpability makes them Athe most deserving of execution. Atkins, supra,

at 319, 122 S.Ct. 2242. This principle is implemented throughout the

capital sentencing process. States must give narrow and precise

definition to the aggravating factors that can result in a capital

sentence. Godfrey v. Georgia, 446 U.S. 420, 428-429 (1980) (plurality

opinion). In any capital case a defendant has wide latitude to raise as a

mitigating factor Aany aspect of [his or her] character or record and any

of the circumstances of the offense that the defendant proffers as a basis

for a sentence less than death. Lockett v. Ohio, 438 U.S. 586, 604 (1978)

(plurality opinion); Eddings v. Oklahoma, 455 U.S. 104 (1982); see also

Johnson v. Texas, 509 U.S. 350, 359-362 (1993) (summarizing the

Court’s jurisprudence after Furman v. Georgia, 408 U.S. 238 (1972) (per

curiam), with respect to a sentencer’s consideration of aggravating and

mitigating factors). There are a number of crimes that beyond question

are severe in absolute terms, yet the death penalty may not be imposed

for their commission. Coker v. Georgia, 433 U.S. 584 (1977) (rape of an

adult woman); Enmund v. Florida, 458 U.S. 782(1982) (felony murder

where defendant did not kill, attempt to kill, or intend to kill). The death

penalty may not be imposed on certain classes of offenders, such as

juveniles under 16, the insane, and the mentally retarded, no matter

how heinous the crime. Thompson v. Oklahoma, supra; Ford v.

Wainwright, 477 U.S. 399 (1986); Atkins, supra. These rules vindicate

the underlying principle that the death penalty is reserved for a narrow

category of crimes and offenders.

Id. 568-69.

In Atkins v. Virginia, 536 U.S. 304 (2002), this Court found that the execution

of the intellectual disabled violated the Eighth Amendment's prohibition of cruel and

unusual punishment based on evolving standards of decency. Id. at 306-307. This

Court was very careful to distinguish between the criminal responsibility of the

intellectual disabled and the prohibition of their execution:

Those mentally retarded persons who meet the law's requirements for

criminal responsibility should be tried and punished when they commit

6

crimes. Because of their disabilities in areas of reasoning, judgment, and

control of their impulses, however, they do not act with the level of moral

culpability that characterizes the most serious adult criminal conduct.

Moreover, their impairments can jeopardize the reliability and fairness

of capital proceedings against mentally retarded defendants.

Presumably for these reasons, in the 13 years since we decided Penry v.

Lynaugh, 492 U.S. 302, 106 L. Ed. 2d 256, 109 S. Ct. 2934 (1989), the

American public, legislators, scholars, and judges have deliberated over

the question whether the death penalty should ever be imposed on a

mentally retarded criminal. The consensus rejected in those

deliberations informs our answer to the question presented by this case:

whether such executions are "cruel and unusual punishments"

prohibited by the Eighth Amendment to the Federal Constitution.

Id.

Mr. Atkins presented expert testimony that he was "mildly mentally retarded."

Id. at 308. Mr. Atkins' expert psychologist reached this conclusion "based on

interviews with people who knew Atkins, a review of school and court records, and

the administration of a standard intelligence test which indicated that Atkins had a

full-scale IQ test of 59." Id. This Court noted that Mr. Atkins' credibility at trial was

damaged because of "its substantial inconsistency with the statement he gave to the

police upon his arrest." Id. at 308, N2.

At the resentencing, the State presented testimony from their own rebuttal

expert. Id. at 309. The State's expert expressed an opinion that Mr. Atkins "was not

mentally retarded, but rather was of 'average intelligence, at least,' and diagnosable

as having antisocial personality disorder." Id. The State's expert reviewed Mr. Atkins

school records, interviewed correctional staff, and asked Mr. Atkins questions taken

from a "1972 version of the Wechsler Memory Scale." Id.

Mr. Atkins argued on state appeal "that he is mentally retarded and thus

7

cannot be sentenced to death." Id. at 310 (citation omitted). The majority rejected this

claim. Two Justices on the court dissented and "rejected [the State's expert]'s opinion

that Atkins possesses average intelligence as 'incredulous as a matter of law,' and

concluded that 'the imposition of the sentence of death upon a criminal defendant who

has the mental age of a child between the ages of 9 and 12 is excessive.'" Id. The

dissenters found that "'it [wa]s indefensible to conclude that individuals who are

mentally retarded are not to some degree less culpable for their criminal acts. By

definition, such individuals have substantial limitations not shared by the general

population. A moral and civilized society diminishes itself if its system of justice does

not afford recognition and consideration of those limitations in a meaningful way.'" Id.

(citations omitted).

This Court explained the evolving standards of decency regarding the execution

of intellectually disabled. Id. at 313-14. This Court found it determinative that despite

the legislative popularity of "anti-crime legislation," overwhelmingly, states had

prohibited the execution of the intellectually disabled by statute. Moreover, states that

had the death penalty and did not regularly use it, and states that had no death

penalty, showed the consensus against executing the intellectually disabled. This:

provide[d] powerful evidence that today our society views the execution

of mentally retarded persons (and the complete absence of States passing

legislation reinstating the power to conduct such executions) provides

powerful evidence that today our society views mentally retarded

offenders as categorically less culpable than the average criminal.

Mentally retarded offenders as categorically less culpable than the

average criminal.

Id. at 315-316. This Court found:

8

This consensus unquestionably reflects widespread judgment about the

relative culpability of mentally retarded offenders, and the relationship

between mental retardation and the penological purposes served by the

death penalty. Additionally, it suggests that some characteristics of

mental retardation undermine the strength of the procedural protections

that our capital jurisprudence steadfastly guards.

Id. at 317.

This Court found that neither of the two permissible bases for capital

punishment, deterrence and retribution, were measurably contributed to by the

execution of the intellectually disabled. Id. at 319. This Court concluded:

Our independent evaluation of the issue reveals no reason to disagree

with the judgment of "the legislatures that have recently addressed the

matter" and concluded that death is not a suitable punishment for a

mentally retarded criminal. We are not persuaded that the execution of

mentally retarded criminals will measurably advance the deterrent or the

retributive purpose of the death penalty. Construing and applying the

Eighth Amendment in the light of our "evolving standards of decency,"

we therefore conclude that such punishment is excessive and that the

Constitution "places a substantive restriction on the State's power to take

the life" of a mentally retarded offender."

Id. at. 321.

In two historic cases, this Court found that death may not be imposed on a

certain class of individuals because of “evolving standards of decency.” See Roper, 536

U.S. at 589; citing Trop v. Dulles, 356 U.S. 86, 100-101 (1958); Atkins, 536 U.S. at

311-12; citing Trop at 100-101. Evolving standards of decency have rendered the

execution of Mr. Cox constitutionally impermissible. As will be discussed in the next

sections, deterrence and retribution are not served with Mr. Cox’s execution.

B. It would be a violation of the Eighth Amendment to the United

States Constitution to execute Mr. Cox, considering the trial

court findings regarding his unique mental health disorders,

which would place him outside of the class of individuals to be

9

executed based on this Court’s reasoning in Atkins.

The trial court made findings and gave weight to mitigating factors regarding

Mr. Cox’s mental health, while failing to give weight to others. Cox v. State, 390 So.

3d 1189, 1193 (Fla. 2024). Specifically, the trial court determined it was proven at

trial that Mr. Cox suffers from the following conditions: (k) Cox suffered head injuries

as a child, (l) Cox has brain damage, (m) Cox has suffered from emotional

dysregulation throughout his life, and (vvv) Cox suffers from impairments to his

executive functioning. Id.

While Mr. Cox was a mere child with a developing brain, he experienced a

series of brain injuries. He suffered at least one traumatic brain injury growing up.

(R 2027). He was hit in the head with a softball at age 10 and woke up on his aunt’s

couch sometime later. (T 715-716). 4 He was knocked unconscious again in a

motorcycle accident at age 14. (T 716, R 2027-28). He was rendered unconscious

again, in a logging accident at 16. (R 2027-28).

Mr. Cox should not be held accountable for injuries sustained to his brain while

he was only a child, and his brain was still in development. Concussive brain injuries

experienced in childhood only reveal part of the story about Mr. Cox’s mental health

deficits. Regarding emotional dysregulation, One of the experts specified that Mr. Cox

“when he gets angry…can’t calm himself down.” (T 771-72).

Q. The fact that he wasn't able to calm down from that and he wasn't

able to process that and logically think about it and react like a normal

human being would, is that a direct result of his brain abnormalities?

4

Dr. Mark Rubino, a neurologist, testified this was “[c]learly a concussion.” (T 716).

10

A. Yes, a loss of emotional regulation is something that you can

see on the MRIs now, which is documented in Dr. McMahon's

neuropsych testing, even back in 2000, and that was present then. Even

Mr. Stamp mentioned that he his emotions were -- he had mental

problems, as he said. So those have been present for a long time. So

when he gets angry, he can't calm himself down and he certainly

isn't looking at all the possibilities of what can happen from his

actions.

Q. Inherently impulsive too?

A. That's inherently impulsive as well.

(T 771-72) (emphasis added).

Q. In regard to the abnormalities that you see and the emotional

dysregulation that you see, based on the scans and based on the

neuropsychological testing, what happens when Mr. Cox is under a

stressful situation and he gets upset, can he calm down like the

rest of us?

A. He has a more difficult time calming down.

Q. As opposed to a human being with a normal brain that doesn't have

all these abnormalities?

A. Right. A lot of people get angry, they're over it if they don't have

anything keeping it going, will stay angry and I think more executive

function becomes impaired with planning become poor.

Q. So it's not that he can't control himself, it's that he has a hard

time regulating those emotions?

A. Correct.

Q. And that certainly affects the choices that he makes?

A. It does.

(T 857-58) (emphasis added). Mr. Cox, to no fault of his own, is predisposed to

having problems regulating his emotions. Similar to a person with an intellectual

11

disability or immature brain development, Petitioner’s mental health condition is

mitigating and beyond his ability to self-regulate or control. Mr. Cox’s issues with

executive function were also proven to mitigate his circumstances. The defense called

three expert witnesses – a radiologist, a neurologist, and a neuropsychologist – who

each testified that significant damage has affected areas of Petitioner’s brain which

control impulsivity. (T 724-62, 857-58, 882-92, 1094-95, 1101).

A. Well, where the red arrows are, this again is the frontal lobe. There

are some impairments in there. There's holes in his frontal lobe,

which again leads to loss of function regarding impulsiveness,

loss of judgment, loss of planning, ultra planning, judgment.

The insula, insula being more prominent in emotional control and

executive function, sort of like the integrating part of the brain, that's

impaired.

Q. So the parts of the brain that are not functioning properly on

the PET scan are the parts of the brain that controls emotional

regulation and impulse control; is that what I'm hearing?

A. Yes.

(T 760) (emphasis added). A second neuropsychologist compared him to “a

freight train that just started down the track and just kept picking up speed without

the ability to brake,” and a third agreed that “[h]e gets going on a track and that is

where he continues…[h]e just keeps moving in the same direction.” (T 984, 1270).

Q. Okay. Trying to think in layman terms again, is he someone that's

able to kind of cognize in a rational way and kind of, you know, tap at

the handbrake when required, in terms of his decision making, does that

make sense?

A. So when I was -- it does. And I'm going to say no. Obviously, it depends

on the situation. [ . . .] But based on what I've read from those events, to

me, the analogy would be, you know, a freight train that just started

12

down the track and just kept picking up speed without the

ability to brake.

Q. Okay.

A. And led to disastrous horrible consequences.

(T 984) (emphasis added).

A. [. . .] The main problem is further back, but he shows a problem in

the front also. And that is up here in the frontal lobes where our

executive functioning is. It's mild. And the main impact of that is

simply that he's not dealing with an intact brain. He's not dealing

with a brain that is working at a hundred percent. He's dealing with a

brain that is working somewhat less than that, particularly in those

areas where he is asked to remember something or he's asked to shift

set.

In other words, to shift, to be flexible. And it's probably the greatest

impact on his every day thinking is that he's had trouble being

flexible in his thinking. He gets going on a track and that is

where he continues. It's very difficult for him to stop, shift set, and go

in another direction. He just keeps moving in the same direction.

(T 1269-70) (emphasis added). The evidentiary support for Mr. Cox’s brain damage,

which again, was found to be mitigating by the trial court, will be further presented

in the next subclaim, as there is an overlap with the findings the trial court should

have made based on the evidence presented during the penalty phase. The death

penalty is unconstitutional in this case. “Because the death penalty is the most severe

punishment, the Eighth Amendment applies to it with special force.” Roper, 543 U.S.

at 568 citing Thompson v. Oklahoma, 487 U.S. 815, 856, (1988) (O'CONNOR, J.,

concurring in judgment). The Eighth Amendment requires that capital punishment

must be limited to those offenders who commit “a narrow category of the most serious

crimes” and whose extreme culpability makes them “the most deserving of execution.”

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Roper v. Simmons, 543 U.S. 551, 568-69 (2005) citing Atkins v. Virginia, 536 U.S.

304, 319 (2002). To this end, Mr. Cox respectfully submits that the death penalty is

inappropriate in this case, and accordingly prohibited by the Eighth Amendment, as

the brain damage Petitioner sustained during childhood, and the resulting

significant, life-long impairments causing emotional dysregulation and deficits to his

executive functioning that flowed therefrom, necessarily exclude him from the

category of offenders with “extreme culpability” for which the death penalty is

exclusively reserved.

C. It would be a violation of the Eighth Amendment to the United

States Constitution to execute Mr. Cox, considering other

evidence of mental impairment proven at trial regarding his

unique mental health disorders, which would place him outside

of the class of individuals to be executed based on this Court’s

reasoning in Atkins.

Mr. Cox suffers from brain damage and has been diagnosed with dementia. His

mental health experts also made findings that he lacks impulse control. Based on this

Court’s analysis in Atkins that people with intellectual disability are ineligible to be

executed, Petitioner’s unique mental health deficits place him outside of the class of

individuals that may be put to death. Dr. Rubino, the neurologist called by the

defense, testified that dementia is present in this case. The doctor distinguished

progressive dementia, such as that caused by Alzheimer’s disease, from “static”

dementia caused by brain injury, and concluded that both were likely present:

Q. And how about possible dementia?

A. That's part of the cognitive disorder. He probably has -- he has a

dementia, because he has a severe impairment of his thinking,

it's I don't know if it's progressive or static.

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Q. And by progressive you mean Alzheimer's?

A. Progressive would be Alzheimer's disease.

Q. And by static you mean just from his brain injury?

A. Just from brain injury. Static just means it's not going anywhere, it's

just he has loss of function and it's not going anywhere.

(T 768) (emphasis added).

Q. Okay. The results in the MoCA, is it consistent with any type of

neurodegenerative disease?

A. Well, 21 is quite remarkable, and because that puts us into a range

where Parkinson's patients would not be allowed to say they could have

surgery or not, that puts us in a dementia range. And dementia is

a term for cognitive impairments that cause functional

impairment. But dementia can be both static and progressive.

Static would be a severe brain injury that causes cognitive impairment.

And progressive, for example, would be Alzheimer's disease.

Q. Okay.

A. He's definitely in a range where he could also be suffering from

early Alzheimer's disease.

Q. But it could also be that the dementia could be a result of his head

injuries from throughout his life?

A. All the head injuries and everything that's happened to him since the

head injuries.

(T 737) (emphasis added).

Q. And whether it is progressive dementia or static dementia, in other

words if it's going to get worse and worse or if it's going to stay exactly

the same, that dementia, as a neurologist, where do you believe that

dementia that he has came from?

A. Well, the traumatic brain injury caused -- there's lots of, lots of factors

here. He has severe depression, head injuries, alcohol abuse, so those

are all risk factors for Alzheimer's disease. So he could have really

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Alzheimer's disease. But with all the concussions he had, he also could

have CTE, which is kind of more of an insidious thing where you have

what's called chronic traumatic encephalopathy. Only time will tell

what happens, I'm not a soothsayer, but he seems -- I expect him to get

worse over the next through years.

Q. And is the neuropsychological testing consistent with

dementia as well?

A. Yes. The difference between the 2000, 2004, and current

neuropsych testing shows that he has gotten worse.

(T 855-56) (emphasis added).

Dr. Rubino concluded his testimony by reiterating that there was no doubt in

his mind that the abnormalities seen in Appellant’s results – both in the brain

imaging and in the psychological testing – were caused by traumatic brain injury.

Q. All the abnormalities that you saw in all the studies, the 2010 MRI,

2019 MRI, 2019 NeuroQuant, and the abnormalities in the 2019 PET

scan, could they have occurred or could those abnormalities exist

without traumatic brain injury?

A. In something called frontal temporal dementia you can see it, but he

didn't have frontal temporal dementia. Behavior is even more messed

up in people with FTD. So the only other thing that would cause focal

atrophy of the frontal and temporal lobes, and over those areas are very

consistent with traumatic brain injury.

Q. So is it your opinion today that the abnormalities that you

have seen are from traumatic brain injury?

A. Yes.

Q. Is there any doubt in your mind about that?

A. No.

(T 856-57) (emphasis added).

Despite this testimony, the court ruled that the non-statutory mitigating factor

of “early signs of dementia” had not been proved. The trial court’s sentencing order

stated:

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Dr. Rubino opined that Mr. Cox has dementia. Dr. Rubino testified that

he does not know if the dementia is progressive or static. Dr. Rubino

opined that static dementia would be just from brain injuries. Dr.

Rubino also opined that it is likely Mr. Cox's dementia symptoms are

static and caused by head trauma. Dr. Ouaou opined that Mr. Cox's

testing results were consistent with a decline in neurocognitive abilities.

However, there is no evidence that Mr. Cox suffers from early signs of

progressive dementia. It is not established by the greater weight of the

evidence that Mr. Cox suffers from the early signs of dementia.

(R 2057-58). This Court requires further proceedings where a trial court fails to

consider relevant mitigating evidence. Eddings v. Oklahoma, 455 U.S. 104, 113-15

(1982). In Eddings, this Court noted that Oklahoma’s death penalty statute permits

evidence to be permitted as to any mitigating circumstance, and held that “Lockett [v.

Ohio, 438 U.S. 586 (1978)] requires the sentencer to listen.” 455 U.S. 104 at n.10.

Eddings and Lockett are based in the federal Eighth Amendment, which in all death

penalty cases requires consideration of the character of the offender as well as the

circumstances of the offense. 455 U.S. 104 at 112. Dr. Rubino’s testimony was clear

that neuropsych testing since 2000 and 2004 indicates that Mr. Cox has gotten worse.

Petitioner is slowly deteriorating. Dr. Rubino also opined that Petitioner has a “severe

impairment of his thinking.” (T 768). Mr. Cox’s impaired thinking is also reflected in

his deficits in impulse control. As noted in the previous section (B), experts made

findings during trial testimony regarding Petitioner’s inability to control his

impulses:

Q. The fact that he wasn't able to calm down from that and he wasn't

able to process that and logically think about it and react like a normal

human being would, is that a direct result of his brain abnormalities?

A. Yes, a loss of emotional regulation is something that you can see on

the MRIs now, which is documented in Dr. McMahon's neuropsych

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testing, even back in 2000, and that was present then. Even Mr. Stamp

mentioned that he his emotions were -- he had mental problems, as he

said. So those have been present for a long time. So when he gets

angry, he can't calm himself down and he certainly isn't looking

at all the possibilities of what can happen from his actions.

Q. Inherently impulsive too?

A. That's inherently impulsive as well.

(T 771-72) (emphasis added).

Q. In regard to the abnormalities that you see and the emotional

dysregulation that you see, based on the scans and based on the

neuropsychological testing, what happens when Mr. Cox is under a

stressful situation and he gets upset, can he calm down like the

rest of us?

A. He has a more difficult time calming down.

Q. As opposed to a human being with a normal brain that doesn't have

all these abnormalities?

A. Right. A lot of people get angry, they're over it if they don't have

anything keeping it going, will stay angry and I think more executive

function becomes impaired with planning become poor.

Q. So it's not that he can't control himself, it's that he has a hard

time regulating those emotions?

A. Correct.

Q. And that certainly affects the choices that he makes?

A. It does.

(T 857-58) (emphasis added). Testimony at trial further established Petitioner’s

inability to control his behavior:

A. [. . .] The main problem is further back, but he shows a problem in

the front also. And that is up here in the frontal lobes where our

executive functioning is. It's mild. And the main impact of that is

simply that he's not dealing with an intact brain. He's not dealing

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with a brain that is working at a hundred percent. He's dealing with a

brain that is working somewhat less than that, particularly in those

areas where he is asked to remember something or he's asked to shift

set.

In other words, to shift, to be flexible. And it's probably the greatest

impact on his every day thinking is that he's had trouble being

flexible in his thinking. He gets going on a track and that is

where he continues. It's very difficult for him to stop, shift set, and go

in another direction. He just keeps moving in the same direction.

(T 1269-70) (emphasis added).

Q. [. . .] Do you believe Allen's capacity to appreciate the criminality of

his conduct or to conform his conduct to the requirements of law was

substantially impaired when he committed the crime that we're here

for?

A. Yes, I think so.

Q. Please explain.

A. He's not able to process I'm going to get him and kill him and that's

going to be bad and I'm going to go – he doesn't process that. He's -- he

can't control his emotions. He doesn't plan well. His process just

does not work.

(T 772) (emphasis added).

In its sentencing order, the court found that the crime was neither spontaneous

nor impulsive. (R 2021). The court acknowledged that four defense experts agreed

that impulse control deficits are present, but – relying on its own finding that the

defendant’s actions leading up to the murder showed he could control his behavior –

nevertheless ruled that the non-statutory mitigating circumstance that Appellant

“suffers from impulse control deficits” is not mitigating on the facts of this case. (R

2021, 2035-36). The trial court’s findings are contrary to the weight of the evidence

presented. Pursuant to the Court’s reasoning in Atkins, executing Mr. Cox would

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violate the Eighth Amendment. Evolving standards of decency have made the

execution of Mr. Cox to be constitutionally impermissible. Deterrence and retribution

are not served with Mr. Cox’s execution because:

1. People suffering from the level of mental illness Mr. Cox did at the time of

offense are incapable of being deterred by the death penalty.

2. It is hardly a just retribution, as Mr. Cox had little capacity at the time of

offense to act rationally and avoid committing capital murder.

3. Like the intellectually disabled, it is morally repugnant to take the life of an

individual whose ability to plan, regulate, and control themselves is so impaired by

severe mental health deficits.

This Court should grant the petition.

CONCLUSION

For all of these reasons, the Court should grant the petition for a writ of

certiorari.

Respectfully Submitted,

Dixon Hendry*

Florida Bar Number 160016

sylvesterslk320@yahoo.com

1800 Grant Street

Tampa, Florida 33605-6042

(813) 247-3154

October 31, 20244

Dated

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