Opposition Brief — Jeffrey Hutchinson, Petitioner v. Ricky D. Dixon, Secretary, Florida Department of Corrections

Nos. 24-7117 and 24A1057

EXECUTION SCHEDULED FOR MAY 1, 2025, at 6:00 P.M.

In the

Supreme Court of the United States

——_

JEFFREY GLENN Hi UTCHINSON, Petitioner,

vu

SECRETARY, FLORIDA DEPARTMENT OF CoRRECTIONS, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION AND

RESPONSE TO APPLICATION FOR A STAY OF THE EXECUTION

On May 1, 2025, Hutchinson, represented by the Capital Habeas Unit of the

Office of the Federal Public Defender of the Northern District of Florida (CHU-N), filed

a petition for writ of certiorari in this Court seeking review of the Eleventh Circuit’s

denial of a certificate of appealability (COA) regarding a claim of incompetency to be

executed under Ford v. Wainwright, 477 U.S. 399 (1986). Hutchinson v. Sec’y, Fla.

Dep't of Corr., No. 25-11481-P (11th Cir, May 1, 2025). On May 1, 2025, CHU-N also

filed an application for a stay of the execution, Hutchinson seeks a stay of the execution

for this Court to decide his pending petition for certiorari. This Court should deny the

stay.

Stays of executions

Stays of executions are not granted as “a matter of course.” Hill v. McDonough,

547 U.S. 573, 583-84 (2006). Rather, a stay is “an equitable remedy” and “equity must

presumption against the grant of a stay where a claim could have been brought at such

atime as to allow consideration of the merits without requiring entry of a stay.” Nelson

v. Campbell, 541 U.S. 637, 650 (2004). Equity must also consider “an inmate’s attempt

at manipulation.” Gomez v. U.S. Dist. Ct. for N. Dist. of Cal., 503 U.S. 653, 654 (1992).

“Both the State and the victims of crime have an important interest in the timely

enforcement of a sentence.” Calderon v. Thompson, 523 U.S. 538, 556 (1998). This

Court has highlighted the State’s and the victims’ interests in the timely enforcement

of the death sentence. Bucklew v. Precythe, 587 U.S. 119, 149-151 (2019). The people

of Florida, as well as surviving victims and their families, “deserve better” than the

“excessive” delays that now typically occur in capital cases. Id. at 149. The Court has

stated that courts should “police carefully” against last minute claims being used “as

tools to interpose unjustified delay” in executions. Jd. at 150. This Court has also

repeatedly stated that last minute stays of execution should be the “extreme exception,

not the norm.” Barr v. Lee, 591 U.S. 979, 981 (2020) (vacating a lower court’s grant of

a stay of a federal execution quoting Bucklew, 587 U.S. at 151).

Three factors required for a stay

To be granted a stay of execution in this Court, Hutchinson must establish three

factors: (1) a reasonable probability that the Court would vote to grant certiorari; (2)

a significant possibility of reversal if review was granted; and (3) a likelihood of

irreparable injury to the applicant in the absence of a stay. Barefoot v. Estelle, 463 US.

880, 895 (1983). He must establish all three factors.

Probability of this Court granting certiorari

As to the first factor, there is little chance that four justices of this Court would

vote to grant certiorari review of the issue raised in the petition regarding the denial

of a certificate of appealability (COA). The Eleventh Circuit’s denial of a COA does not

warrant review because it is not debatable that the claim is not even a valid Ford

claim. Hutchinson did not, and cannot, meet the threshold showing required as the

first step to a valid Ford claim. Hutchinson must make a “substantial” threshold

showing of incompetency to be executed to be entitled to an evidentiary hearing on his

Ford claim. Panetti v. Quarterman, 551 U.S. 930, 950 (2007). As this Court has

explained, the “beginning of doubt about competence” to be executed “is not a

misanthropic personality or an amoral character;” rather, it “is a psychotic disorder.”

Panetti, 551 U.S. at 960. A capital defendant without any mental illness cannot make

any showing of insanity, much less the required “substantial” one. Hutchinson does not

have even the “beginnings” of a valid Ford claim. Panetti, 551 U.S. at 960.

At the 2001 penalty phase, both experts, that were originally appointed by the

trial court for purposes of an insanity determination, testified that Hutchinson did not

have a major mental illness. (T. XXXI 2490; 2516). Both Drs. McClaren and Larson

diagnosed him as narcissistic with antisocial features. (T. XXXI 2503; 2517). The

defense mental health expert, Dr. Dillon, diagnosed him with a mood disorder that was

manageable with medication (which Hutchinson stopped taking years ago). (T. XXX

2374-75; 2379). The Department of Corrections’ records classified him as S1 for mental

health purposes during the past decades. And recently, on April 21, 2025, as part of the

Governor’s statutory obligation when a Ford claim arises during a warrant under

section 922.07, Florida Statutes (2024), three psychiatrists, Drs. Werner, Meyers and

Lazarou, all concluded in their joint report that Hutchinson had no current mental

illness. All three experts diagnosed him as having narcissistic and antisocial traits.

Thus, the issue of his having a “substantial” threshold showing of incompetency is not

debatable, just as the Eleventh Circuit properly determined.

There is also no conflict between the Florida Supreme Court’s decision rejecting

a Ford claim based on delusions and similar Ford claims raised in the federal courts.

Dixon v. Shinn, 33 F.4th 1050 (9th Cir. 2022). Nor is there any conflict with the other

state supreme courts. State ex rel. Barton v. Stange, 597 S.W.3d 661, 666 (Mo. 2020)

(concluding a Ford claim, based on a diagnosis of “Major Neurocognitive Disorder,” did

not establish the “substantial threshold showing of insanity required by Panetti and

Ford.”). Opposing counsel points to no conflict in the lower courts in the petition.

The petition argues that there was a “misapplication” of this Court’s Ford

jurisprudence. Pet. at 2,15. But this Court does not grant review of misapplication of

correct statements of the law. Sup. Ct. R. 10 (“A petition for a writ of certiorari is

rarely granted when the asserted error consists of erroneous fact findings”); United

States v. Johnston, 268 U.S. 220, 227 (1925) (stating the Court does "not grant a

certiorari to review evidence and discuss specific facts”); Cash v. Maxwell, 565 U.S.

1138 (2012) (statement of Sotomayer, J., respecting the denial of certiorari) (“Mere

disagreement with” a “highly fact bound conclusion is, in my opinion, an insufficient

basis for granting certiorari”)

There is a low probability of this Court granting certiorari to insist the Eleventh

Circuit grant review ofa Ford claim that is not “substantial” raised in the federal district

court on the eve of the scheduled execution.

Hutchinson fails the first factor which alone is sufficient reason to deny his

request for a stay because he is required to establish all three factors.

Probability of this Court granting relief on the merits

As to the second factor, there is little possibility of Hutchinson being found

incompetent to be executed, if this Court were to grant review. Under the AEDPA, a

federal habeas court would have to defer to the state court’s findings of fact and

credibility determinations. The state trial court, following an evidentiary hearing on

the Ford claim, found Hutchinson “does not have any current mental illness” and his

“purported delusion” was “demonstrably false.” Hutchinson would have to rebut the

state court’s factual findings and credibility determinations by clear and convincing

evidence under 28 U.S.C. § 2254(e)(1).

And the Florida Supreme Court’s decision rejecting the Ford claim was not

contrary to, or an unreasonable application of, either Madison v. Alabama, 586 U.S.

265 (2019), or Panetti v. Quarterman, 551 U.S. 930 (2007). To the contrary, the Florida

Supreme Court repeatedly quoted from this Court’s decisions, including Madison, in

its opinion. Hutchinson v. State, 2025 WL 1248732, at *2-*3 (Fla. Apr. 30, 2025) (No.

$C2025-0590).

Hutchinson does not have a “significant” possibility of prevailing on the Ford

claim, if this Court were to grant review. So, Hutchinson also fails the second factor.

Irreparable injury

As to the third factor of irreparable injury, none is identified. While the

execution will result in Hutchinson’s death, that is the inherent nature of a death

sentence. The factors for granting a stay are taken from the standard for granting a

stay for normal civil litigation, which is not a natural fit in capital cases. Barefoot, 463

U.S. at 895-96 (citing Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1801,

1305 (1974) (Powell, J., in chambers)). In the capital context, more should be required

to establish irreparable injury than the execution itself. Hutchinson has identified no

irreparable harm that is not a direct consequence of his valid, constitutional, and longfinal death sentences for the mass murder of three young children.

Moreover, this Court has stated in the capital context that “the relative harms

to the parties” must still be considered, including “the State’s significant interest in

enforcing its criminal judgments.” Nelson, 541 U.S. at 649-50 (emphasis added).

Without finality, “the criminal law is deprived of much of its deterrent effect.” Calderon

v. Thompson, 523 U.S. 588, 555-56 (1998). And finality in a capital case is the

execution. These murders occurred in 1998 and his three death sentences have been

final since 2004. Hutchinson fails the third factor as well.

Accordingly, this Court should deny the motion to stay regarding a successive

habeas petition raising a Ford claim that is not “substantial” in a petition filed the

afternoon of the scheduled execution.

Respectfully submitted,

JAMES UTHMEIER

ATTORNEY GENERAL OF FLORIDA

Mime

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Associate Deputy Attorney General

Counsel of Record

Charmaine Millsaps

Senior Assistant Attorney General

OFFICE OF THE ATTORNEY GENERAL

CAPITAL APPEALS

THE CAPITOL, PL-01

TALLAHASSEE, FL 32399-1050

(850) 414-3300

email: capapp@myfloridalegal.com

charmaine.millsaps@myfloridalegal.com

COUNSEL FOR RESPONDENT