Emergency Application — Jeffrey G. Hutchinson, Petitioner v. Florida, et al.

No. ______

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2024

___________________________________________________________

JEFFREY GLENN HUTCHINSON,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

____________________________________________________________

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

______________________________________________________________

APPLICATION FOR STAY OF EXECUTION

______________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, MAY 1, 2025, AT 6:00 P.M.

______________________________________________________________

To the Honorable Clarence Thomas, Associate Justice of the Supreme Court of

the United States and Circuit Justice for the Eleventh Circuit:

The State of Florida has scheduled the execution of Petitioner Jeffrey Glenn

Hutchinson for Thursday, May 1, 2025, at 6:00 p.m. The Florida Supreme Court

denied state court relief on Monday, April 21, 2025. Pursuant to Supreme Court Rule

23 and 28 U.S.C. § 2101(f), Mr. Hutchinson requests a stay of execution pending the

disposition of the petition for a writ of certiorari accompanying this application.

The petition concerns a pattern of due process violations related to the

unnoticed issuance of Mr. Hutchinson’s death warrant; truncated adjudication of his

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Eighth Amendment litigation that was ongoing at the time the death warrant was

signed; and oppressive warrant litigation scheme, all of which failed to provide Mr.

Hutchinson, an impaired combat veteran, a meaningful opportunity for his

constitutional claims to be heard. The petition raises issues worthy of certiorari, and

this Court should not allow the State to proceed with Mr. Hutchinson’s scheduled

execution “without ensuring a meaningful period for [the state courts] to conduct a

full review.” Hutchinson v. State, 2025 WL 1198037 at *7 (Labarga, J., dissenting).

I.

Background 1

On March 31, 2025, while Mr. Hutchinson’s pending state-court Eighth

Amendment litigation was still in the early stages, Governor Ron DeSantis signed

his death warrant. PCR4 671-72. Although at least 10 days’ notice of the 31-day

warrant was given to other individuals, including the victims’ family and Attorney

General’s Office, Mr. Hutchinson’s counsel was not notified until hours after the

warrant had issued—and 30 minutes after the Attorney General’s Office had filed

their first pleading. PCR4 647-70, PCR5 95.

The next day, the case was reassigned to a new judge with no familiarity with

Mr. Hutchinson’s case. PCR4 711. Within three days, the court had denied the

1 Citations are as follows: “R.” refers to the first eighteen volumes of the record on

direct appeal to the Florida Supreme Court (SC01-500). “T.” refers to the separately

paginated trial transcript in volumes nineteen through thirty-two of the record on

appeal. “PCR1” refers to the record on appeal to the Florida Supreme Court from the

initial state postconviction appeal (SC08-99); “PCR2” to the record on appeal from the

successive state postconviction appeal (SC17-1229); “PCR3” to the record on appeal

from the second successive postconviction appeal (SC21-18); and “PCR4” to the record

on appeal from this appeal (SC25-0497). Other references are self-explanatory.

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pending postconviction motion without providing any notice or opportunity for Mr.

Hutchinson to address the new judge’s concerns about the claims. PCR4 1080-1116.

Within a day of filing the notice of appeal in the Florida Supreme Court, Mr.

Hutchinson’s initial brief was due. This was not a case of last-minute death-warrant

litigation—Mr. Hutchinson filed his claims before the death warrant was signed.

Meanwhile, Mr. Hutchinson’s April 7, 2025, postconviction motion, which in

the Eighth Amendment and due process context challenged the manner of his

warrant proceedings, was denied on April 11, 2025. PCR4 699-710, 746-50, PCR5 24155, App. A2. The state habeas petition was due three days later alongside the notice

of appeal, and the initial appellate brief was due less than 24 hours after the record

was filed. Over dissent, the Florida Supreme Court denied relief in both actions on

April 25, 2025. Hutchinson v. State, 2025 WL 1198037 at *1 (Apr. 25, 2025).

Concurrently with this stay application, Mr. Hutchinson has filed a petition

for a writ of certiorari.

II.

The stay factors weigh in favor of granting a stay

This Court is empowered to stay an execution pending consideration and

disposition of a petition for a writ of certiorari because “[a]pproving 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 standards for granting a stay are

well established. See id. at 895; Hill v. McDonough, 547 U.S. 573, 584 (2006). While

Mr. Hutchinson recognizes that a stay of execution is “an equitable remedy” and is

“not available as a matter of right,” Hill, 547 U.S. at 584, the relevant factors—

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likelihood of success on the merits, undue delay, relative harm to the parties, and the

public interest—weigh in favor of granting one here.

A.

Mr. Hutchinson is likely to succeed on the merits

The questions raised in Mr. Hutchinson’s petition are sufficiently meritorious

for a grant of certiorari review, and it is likely that at least four Justices will agree.

See Hollingsworth v. Perry, 558 U.S. 183, 190 (2010). And, should this Court grant a

stay and review of the underlying petition, there is a significant possibility that it will

reverse the lower court for the reasons explained in the accompanying petition.

Briefly, the Florida Supreme Court’s justifications for denying Mr.

Hutchinson’s under-warrant due process and mental health claims are at odds with

this Court’s precedent. Indeed, in dissenting from the Florida Supreme Court’s

majority opinion, Justice Labarga emphasized that “due process requires more” and

referenced the Florida Supreme Court’s lack of notice that Governor DeSantis had

temporarily stayed the proceedings: “Given these circumstances, I cannot concur in

the majority’s decision to permit this execution to proceed at this time, without

ensuring a reasonable period for this Court to conduct a full review.” Hutchinson,

2025 WL 1198037 at *7 (Labarga, J., dissenting).

Individuals facing the death penalty “must have a fair opportunity to show

that the Constitution prohibits their execution.” Hall v. Florida, 572 U.S. 701, 724

(2014). “[F]undamental fairness is the hallmark of the procedural protections

afforded by the Due Process Clause.” Ford v. Wainwright, 477 U.S. 399, 424 (1986)

(Powell, J., concurring in part and in the judgment). Due process entails notice and

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the opportunity to be heard “at a meaningful time and in a meaningful manner.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976); see also Cleveland Bd. of Ed. v.

Loudermill, 470 U.S. 532, 542 (1985).

Although the Florida courts acknowledge due process in word and proclaim

that “[h]aste has no place in proceedings in which a person may be sentenced to

death[,]” Scull v. State, 569 So. 2d 1252 (Fla. 1990), in deed they denied Mr.

Hutchinson the meaningfulness and fundamental fairness required by the

circumstances of his case. This offends “the very concept of justice.” Lisenba v. People

of State of California, 314 U.S. 219, 236 (1941).

For instance, Mr. Hutchinson’s efforts to mount a defense in the oppressive

climate of his death warrant were perversely held against him when the Florida

Supreme Court referenced them as a reason for denying his due process claim: “In

sum, although the warrant period in this case was admittedly short and the record

lengthy, Hutchinson has been able to raise numerous postconviction claims and

advance arguments to support them.” Hutchinson, 2025 WL 1198037 at *4. This is

the epitome of a lack of fundamental fairness. With such a truncated warrant period

and no advance notice, defendants and counsel—no matter how diligent—are forced

to submit the very sorts of last-minute pleadings that are discouraged by courts. As

former Florida Supreme Justice Pariente observed:

Th[e] extremely short warrant period create[s] a fire drill approach to

the review of [the defendant’s] claims….The postconviction court and

[defense] attorneys were forced to race around the clock in reviewing

and presenting all of [the] claims, respectively. But for this Court

entering a stay of execution…this Court would have also had inadequate

time to thoroughly review his claims.

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Jimenez v. Bondi, 259 So. 3d 722, 726 (Fla. 2018) (Pariente, J., concurring). Warrant

litigation may always be arduous and may always entail a level of triage, but this

Court should not permit Florida to continue its “fire drill approach[.]” Id.

The particular circumstances presented by Mr. Hutchinson’s petition clearly

demonstrate that he is deserving of the protections from the death penalty provided

by the Eighth and Fourteenth Amendments. But without this Court’s intervention,

Florida will continue to perpetuate a Kafkaesque warrant litigation scheme that

makes it impossible to vindicate those rights.

Furthermore, Mr. Hutchinson’s claims are not subject to any legitimate

procedural impediments. The state courts have foreclosed substantive review, but

Eighth Amendment exemptions from the ultimate punishment cannot be nullified by

any state-law waiver provision. And, even if such a state provision could trump this

Court’s constitutional prerogatives, the state courts’ procedural impediments were

not adequate and independent. The “fire drill approach to the review” of Mr.

Hutchinson’s Eighth Amendment claims once his warrant was signed deprived him

of a meaningful opportunity to be heard—including on the issue of why the evidence

he seeks to have considered is timely and not barred. Id. This Court’s review must

not be constrained by the very malady this petition seeks to correct.

B.

There is no undue delay

Mr. Hutchinson’s state postconviction motion was filed within eight days of his

death warrant being signed. It was not until after the warrant was signed that Mr.

Hutchinson’s due process claim—which necessarily impacted his ability to vindicate

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his Eighth Amendment rights—ripened. As described in his petition for a writ of

certiorari and above, the due process claim centers around the confluence of such

factors as the truncated review of his pending constitutional claim after the warrant

was signed; the lack of notice and hearing regarding the presiding judge’s

reassignment; the uneven playing field regarding notice of the warrant’s issuance;

and the rushed warrant schedule and inability to obtain expert assistance prior to

filing his under-warrant postconviction motion. Mr. Hutchinson filed promptly—this

was not a motion “filed too late in the day.” Hill, 547 U.S. at 584.

The State of Florida arbitrarily set a rushed execution date that truncated Mr.

Hutchinson’s pending review and obstructed a meaningful opportunity for underwarrant claims. To the extent the Court’s consideration of this application is rushed,

this is not due to any delay by Mr. Hutchinson.

C.

Harm to parties

Irreparable injury to the petitioner “is necessarily present in capital cases.”

Wainwright v. Booker, 473 U.S. 935, 935 n.1 (1985); see also In re Holladay, 331 F.3d

1169, 1177 (11th Cir. 2003) (“We consider the irreparability of the injury that

petitioner will suffer in the absence of a stay to be self-evident.”); Ferguson v. Warden,

Fla. State Prison, 493 F. App’x 22, 26 (11th Cir. 2012) (Wilson, J., concurring) (“[I]n

the circumstances of an imminent execution, this Court presumes the existence of

irreparable injury.”); Hutchinson v. Sec’y, Fla. Dep’t of Corr., No. 3:13-cv-128-MW,

ECF No. 98 at 17 (11th Cir. Apr. 16, 2025) (“[T]his Court agrees with Mr. Hutchinson

that he would suffer irreparable injury if he was executed without being afforded an

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opportunity to be heard” on the underlying merits if procedural requirements were

satisfied).

A stay will not substantially harm the State. While the State has a legitimate

interest in the timely enforcement of valid criminal judgments, it does not have a

legitimate interest in depriving a death-sentenced individual due process and

arbitrarily executing him without any meaningful opportunity to hear constitutional

claims that had been pending prior to the warrant or those he was unable to fully

bring due to the oppressive warrant litigation schedule. Cf. Holladay, 331 F.3d at

1177 (“Moreover, contrary to the State’s contention that its interest in executing

Holladay outweighs his interest in further proceedings, we perceive no substantial

harm that will flow to the State of Alabama or its citizens from postponing petitioner’s

execution to determine whether that execution would violate the Eighth

Amendment.”). Moreover, the State chose not to pursue a death warrant for years

after the conclusion of Mr. Hutchinson’s initial round of state and federal appellate

litigation. The State will suffer no substantial harm from waiting at least until this

Court completes certiorari review of a vital constitutional issue that was being

litigated at the time Mr. Hutchinson’s death warrant was signed. A stay of execution

pending certiorari review is appropriate.

D.

Public interest

Granting a stay of execution would not be detrimental to the public interest.

Like the State, the public has a legitimate interest in enforcing criminal judgments.

However, the public also has an interest in a legal system that opts for deliberate

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rather than hasty resolutions of criminal cases, especially cases where the

consequence for foregoing justice is a petitioner’s death. It would undermine rather

than serve the public’s confidence in a just system to execute a veteran who honorably

served his country on the front lines of the Gulf War; was frustrated in an attempt to

demonstrate that he is entitled to exemption from execution—by the signing of a

death warrant; and now has further been obstructed from meaningfully presenting

constitutional claims under warrant due to an oppressive litigation schedule and the

uneven footing caused by the Governor’s arbitrary notice practices in this case. A stay

of execution should be granted. “[D]ue process requires more.” Hutchinson, 2025 WL

1198037 at *7 (Labarga, J., dissenting).

III.

Conclusion

The Court should grant a stay of execution.

/s/ Chelsea Shirley

Chelsea Shirley

Counsel of Record

Lisa Fusaro

Alicia Hampton

Office of the Capital Collateral Regional

Counsel – Northern Region

1004 DeSoto Park Drive

Tallahassee, FL 32301

(850) 487-0922

Chelsea.Shirley@ccrc-north.org

Counsel for Petitioner

DATED: APRIL 29, 2025

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