Reply Brief — Glen Edward Rogers, Petitioner v. Florida

No. 24-7169

IN THE

Supreme Court of the United States

_________________________________________________________________________

GLEN EDWARD ROGERS,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_________________________________________________________________________

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

REPLY TO BRIEF IN OPPOSITION

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, MAY 15, 2025, AT 6:00 P.M.

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

REPLY REGARDING STAY………………………………………………………………....1

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT…………...………4

CONCLUSION............................................................................................................ 10

i

TABLE OF AUTHORITIES

Cases

Page(s)

Asay v. State

224 So. 3d 695 (Fla. 2017) .................................................................................. 4, 6, 9

Barefoot v. Estelle,

463 U.S. 880 (1983) ............................................................................................. 1

Baze v. State,

553 U.S. 35 (2008)…………………………………………………………………….10

Cole v. State,

392 So. 3d 1054 (Fla. 2024)…………………………………………………………...4

Davis v. State,

142 So. 3d 867 (Fla. 2014)………………………………………………………………..4,6

Ford v. Wainwright,

477 U.S. 399 (1986)……………………………………………………………..…..2, 8

Glossip v. Gross,

576 U.S. 863 (2015)…………………………………………………………………...6, 9-10

Hutchinson v. State,

2025 WL 1248732 (Fla. 2025)....................................................................................8

Long v. State,

271 So. 3d 938 (Fla. 2019)……………………………………………………………..4

Ocha v. State,

826 So. 2d 956 (Fla. 2002)................................................................................... 2

Owen v. State,

363 So. 3d 1035 (Fla. 2023)…………………………………………………………………8

Panetti v. Quarterman

551 U.S. 930 (2007)……………………………………………………………….…7, 8

Tanzi v. State,

2025 WL 971568 (Fla. Apr. 1, 2025)……………………………………………….4,6

Woodson v. North Carolina,

428 U.S. 280, 305 (1976) ..................................................................................... 2

ii

Constitutional Provisions:

U.S. Const. amend. VIII………………………………………………………………….2, 7-9

U.S. Const. amend. XIV……………………………………………………………………….9

Other Authorities

28 U.S.C. § 2254(d)(2)………………………………………………………………………….9

Fla. Stat. § 922.07 (1985 and Supp.1986)…………………………………………………..9

Article

The Eighth Amendment and the Execution of the Presently Incompetent, 32 Stan.

L. Rev. 765, 777, n. 58 (1980)…………………………………………………………………8

iii

PRELIMINARY STATEMENT

Petitioner, Glen Edward Rogers (“Rogers”), offers the following Reply to the

Brief in Opposition from the Respondent (“BIO”). Rogers will not reply to every issue

and argument raised by Florida and will only address specific points. Rogers

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.

REPLY REGARDING STAY

Rogers’s execution is currently scheduled for May 15, 2025, only two days from

the date of the filing of this Reply. Filed contemporaneously with the BIO on May 12,

2025, the State also submitted a Response to Application for Stay of Execution. This

Court should grant Rogers a stay.

Florida’s compressed 30-day death warrant litigation schedule is completely

insufficient to protect Rogers’s constitutional rights. The standards for granting a

stay of execution are well-established. Barefoot v. Estelle, 463 U.S. 880, 895 (1983).

There “must be a reasonable probability that four members of the Court would

consider the underlying issue sufficiently meritorious for the grant of certiorari or the

notation of probable jurisdiction; there must be a significant possibility of reversal of

the lower court's decision; and there must be a likelihood that irreparable harm will

result if that decision is not stayed.” Id. (internal quotations omitted).

There is indeed a reasonable probability that four justices would consider

Florida’s refusal to hold evidentiary hearings for post-warrant as-applied challenges

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to be a sufficiently meritorious issue for certiorari. In the Petition at 19-23, Rogers

cited to examples from other jurisdictions that have issued rulings based on clear,

and often voluminous and extensive appellate records providing expert testimony.

Those examples of evidentiary hearings for capital defendants challenging their

executions under the Eighth Amendment show that Rogers’s case is the proper

vehicle to resolve the questions presented. The jurisdictions represent various regions

of the country, at both the state and federal level. The issue of evidentiary hearings

for as-applied challenges appears to have created a split-opinion among various

regions of the country, at both the state and federal levels. Rogers merely seeks a true

opportunity to be heard, pursuant to his protections under the Eighth Amendment

and Fourteeth Amendment to the United States Constitution. This Court is likely to

reverse Florida’s decision.

Rogers will be irreparably harmed if a stay is not granted. If this Court does

not intervene by pausing Rogers’s unnecessarily expedited warrant schedule, he faces

the ultimate and final sanction of death when Florida executes him via lethal

injection at 6:00 p.m. on May 15, 2025. Both Florida and this Court have recognized

that “execution is the most irremediable and unfathomable of penalties; that death is

different.” Ford v. Wainwright, 477 U.S. 399, 411 (1986) (citing Woodson v. North

Carolina, 428 U.S. 280, 305 (1976)); see also Ocha v. State, 826 So. 2d 956, 964 (Fla.

2002) (“This Court has long adhered to the idea that [i]n the field of criminal law,

there is no doubt that ‘death is different.’ ”); Swafford v. State, 679 So. 2d 736, 740

(Fla. 1996) (“[O]ur jurisprudence also embraces the concept that ‘death is different’

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and affords a correspondingly greater degree of scrutiny to capital proceedings.”).

Rogers’s unnecessarily expedited warrant schedule simply does not honor our justice

system’s acknowledgement that “death is different.” Rogers’s Porphyria diagnosis

forbids him from being executed under Florida’s current protocols, in a manner that

compromises with the Constitution. Rogers simply wants to present the testimony of

his expert concerning that medical condition.

Dr. Joel Zivot is extremely well credentialed. The only challenges to Dr. Zivot’s

professionally researched expertise are Respondents’ interpretation of medical

science, as balanced with Respondents’ interpretation of caselaw. Dr. Zivot is the only

actual expert in these proceedings. 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. Dr. Zivot holds board certification in

Anesthesiology from the Royal College of Physicians and Surgeons of Canada and the

American Board of Anesthesiology. He is board-certified in Critical Care Medicine

from the American Board of Anesthesiology. Dr. Zivot has practiced anesthesiology

and critical care medicine for thirty years, during which time he has personally

performed or supervised the care of over 50,000 patients. A stay is appropriate and

necessary for Dr. Zivot to fully provide a record, which will establish that Rogers’s

constitutional rights will be violated if Florida executes him on May 15, 2025 via

lethal injection. Rogers faces a grave and painful infringement upon his rights

without this Court’s intervention. This honorable Court should grant a stay.

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RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT

The questions presented are properly before this Court. The issue regarding

Rogers’s constitutional right to an evidentiary hearing was argued in the Initial Brief

of the Appellant filed with the Florida Supreme Court. See Appendix B of Petition at

51-57. Further the BIO is plainly incorrect in stating that the Florida Supreme Court

deemed this claim “unpreserved” at the state level. BIO at 11. Concerningly, in

misusing the term “unpreserved,” the BIO cited a section of the Florida Supreme

Court opinion that did not even address Rogers’s lethal injection claims. BIO at 11,

13-14. 1 In fact, the Florida Supreme Court in Appendix A of Petition takes a position

on the merits of Rogers’s underlying claim without the benefit of expert testimony.

The Florida Supreme Court states:

We agree with the postconviction court that Rogers cannot satisfy the

first prong. Rogers speculates that when etomidate is administered, the

drug could induce a porphyria attack and create a substantial risk that

Rogers will suffer from extreme and excruciating abdominal pain,

tachycardia, hypertension, nausea, vomiting, and seizures. But this

Court has repeatedly upheld Florida’s lethal injection protocol,

including the etomidate protocol. See Tanzi, 50 Fla. L. Weekly at S61,

2025 WL 971568, at *4 (upholding Florida’s etomidate protocol); Cole,

392 So. 3d at 1065 (noting that the “etomidate protocol ... includes

safeguards to ensure the condemned is unconscious throughout the

execution”); Long, 271 So. 3d at 945-46 (“[W]e have repeatedly affirmed

the summary denial of challenges ... to the use of etomidate as the first

drug in the protocol.”). And Rogers does not explain how his

speculative porphyria attack overcomes the well-established

fact that the administration of etomidate will render him

unconscious likely within one minute. See Asay, 224 So. 3d at 701

(“Intravenous injection of etomidate produces hypnosis characterized by

a rapid onset of action, usually within one minute.” (quoting the drug

insert for etomidate)); see also Davis, 142 So. 3d at 872 (affirming the

denial of an as-applied lethal injection claim “because Dr. Zivot failed to

1 The BIO cites

Appendix A in Petition at *6, when in fact, the Florida Supreme Court Opinion’s lethal

injection discussion does not begin until Appendix A in Petition at *7.

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demonstrate that the injection of midazolam, as the first drug in the

lethal injection protocol, would not render Davis unconscious and

insensate prior to him experiencing any possible symptoms of a

porphyria attack”).

Appendix A in Petition at *8 (emphasis added). Due to the expedited 30-day warrant

schedule, Rogers only had a small amount of time to secure the thorough findings of

his expert for this issue. The compressed schedule was further prejudicial to Rogers’s

due process rights as the death warrant was signed during Holy Week, with the

successive postconviction motion timely filed on Easter Sunday. Despite such

hardship, Rogers’s expert made definitive findings regarding Florida’s etomidate

protocol. Dr. Zivot opines in relevant part:

A review of the Florida lethal execution protocol involves the sequential

intravenous delivery of three drugs to a person to kill by execution. The

first drug is Etomidate, followed by Rocuronium Bromide, and then

Potassium Acetate. Etomidate is a non-barbiturate sedative hypnotic

drug used in anesthesiology practice in several different situations.

Etomidate metabolism is primarily hepatic which means it will

accumulate rapidly in the liver. Etomidate is not classically considered

an analgesic (used for the control of pain). Neither of the subsequent

drugs used in the protocol is analgesic. Rocuronium Bromide is a rapidly

acting paralyzing drug and will paralyze any individual, in this case the

prisoner, making it impossible to communicate to observers that pain is

occurring. Potassium Acetate is a drug that regulates the contraction of

the heart. In large doses, Potassium Acetate is painful when injected

and will cause the heart to cease functioning.

…

Studies have shown that etomidate can induce Porphyria attacks in

susceptible individuals. In the Florida execution protocol, the amount of

Etomidate given is up to 10 times the amount that might be injected in

a clinical setting. The consequence of this massive quantity on

Porphyrin accumulation and the ensuing negative symptoms would be

profound. As rocuronium bromide is injected after etomidate, the

subsequent paralysis will mask the severe and terrifying pain and other

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adverse effects from the etomidate-induced porphyria attack that Mr.

Rogers will experience.

…

Based on my review of Mr. Rogers medical record, it is my opinion that

a substantial risk exists that, during the execution, Mr. Rogers will

suffer from extreme and excruciating abdominal pain, tachycardia,

hypertension, nausea, vomiting, and seizures.

Appendix C of Petition. Dr. Zivot thoroughly reviewed the Florida protocols and

understands the state of the law regarding as-applied challenges to lethal injection

procedures. In challenging this claim, Respondents are citing to cases in which the

litigants had completely separate medical conditions, or in the case of Davis’s

Porphyria under the midazolam protocols, an entirely different ingredient for the

execution process. BIO at 20. Irrespective of what etomidate is supposed to “likely”

or “usually” accomplish regarding allegedly rendering unconsciousness within oneminute, Appendix A in Petition at *8, that analysis is entirely speculative. An

evidentiary hearing, with Dr. Zivot perhaps being challenged by an expert testifying

for the Respondents, would create a clear record of how the current lethal injection

protocols would cause Rogers unconstitutional pain and suffering. Similarly

problematic, the Florida Supreme Court found:

Even if Rogers could satisfy the first prong, we agree with the

postconviction court that he has failed under the second prong to

“identify a known and available alternative method of execution that

entails a significantly less severe risk of pain.” Asay, 224 So. 3d at 701

(citing Glossip, 576 U.S. at 877, 135 S.Ct. 2726). In Tanzi, we recently

rejected Rogers’ two proposed alternatives, lethal gas or firing squad,

because Tanzi failed to show “how either of his two proposed alternate

methods ... could be ‘readily implemented,’ or in fact significantly

reduce[ ] the substantial risk of severe pain, given the physical

conditions he describes.’ ” 50 Fla. L. Weekly at S61, 2025 WL 971568, at

6

*4.13 Rogers, likewise, fails to make this showing.

Appendix A in Petition at *8. Without an evidentiary hearing to rebut Dr. Zivot’s

findings, it is improper and a violation of Rogers’s due process rights to opine that he

failed to demonstrate whether the proposed alternative methods would “significantly

reduce[ ] the substantial risk of severe pain, given the physical conditions he

describes.’ ” Id. Importantly, Dr. Zivot also opines that one of the drugs used in the

protocols, Rocuronium Bromide, could mask the terrifying pain and suffering Rogers

will experience without this Court’s intervention. Appendix C of Petition. Dr. Zivot’s

evidentiary hearing testimony could similarly explain how Rogers’s chosen

alternative methods would “significantly reduce the substantial risk of severe pain,

given the physical conditions he describes.” Rogers is leery to discuss anything that

would imply he wants this Court, at this stage, to review, let alone decide the merits

of his as-applied claim. Rogers merely seeks an evidentiary hearing to create a record

in support of the Eighth Amendment challenge to his execution. Dr. Zivot’s

evidentiary hearing testimony would also further settle the “timeliness” discussion

regarding this claim. Rogers’s liver condition has worsened over time because of his

Porphyria disorder, which would have caused prior litigation to be unripe and

premature.

Like this Court has upheld that a capital defendant who is challenging his

sanity to be executed is entitled to an evidentiary hearing, this Court should expand

the rationale of Panetti v. Quarterman, 551 U.S. 930, 948-50 (2007) to those

individuals raising an as-applied challenge to their execution. Panetti cited to the

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controlling concurrence from Ford v. Wainwright, 477 U.S. 399, 424-27 (2006),

stating:

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.

Id. at 949-50. Although Florida’s current procedures regarding this specific

Ford/Panetti area of the law are inadequate, Florida does follow this Court’s

requirement for minimum due process in the way of evidentiary hearings for such

claims, particularly while under an active death warrant. See Owen v. State, 363 So.

3d 1035 (Fla. 2023) and Hutchinson v. State, 2025 WL 1248732 (Fla. 2025). Each of

those defendants were provided evidentiary hearings for their Ford/Panetti claims.

Ford forbids the execution of the criminally insane based on an analysis pursuant to

the Eighth Amendment:

For today, no less than before, we may seriously question the retributive

value of executing a person who has no comprehension of why he has

been singled out and stripped of his fundamental right to life. See Note,

The Eighth Amendment and the Execution of the Presently

Incompetent, 32 Stan.L.Rev. 765, 777, n. 58 (1980). Similarly, the

natural abhorrence civilized societies feel at killing one who has no

capacity to come to grips with his own conscience or deity is still vivid

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

**2602 is evidently shared across this Nation. Faced with such

widespread evidence of a restriction upon sovereign power, this Court is

compelled to conclude that the Eighth Amendment *410 prohibits a

State from carrying out a sentence of death upon a prisoner who is

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

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

itself from the barbarity of exacting mindless vengeance, the restriction

8

finds enforcement in the Eighth Amendment.

Id. at. 409-10. This Court went on to determine that an evidentiary hearing is

required to support a record for the Eighth Amendment principles:

Today we have explicitly recognized in our law a principle that has long

resided there. It is no less abhorrent today than it has been for centuries

to exact in penance the life of one whose mental illness prevents him

from comprehending the reasons for the penalty or its implications. In

light of the *418 clear need for trustworthiness in any factual finding

that will prevent or permit the carrying out of an execution, we hold that

Fla.Stat. § 922.07 (1985 and Supp.1986) provides inadequate assurances

of accuracy to satisfy the requirements of Townsend v. Sain, 372 U.S.

293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Having been denied a

factfinding procedure “adequate to afford a full and fair hearing” on the

critical issue, 28 U.S.C. § 2254(d)(2), petitioner is entitled to an

evidentiary hearing in the District Court, de novo, on the question of his

competence to be executed. Townsend v. Sain, supra, at 312, 83 S.Ct., at

756–757.

Id. at 417-18. If a capital defendant is “entitled to an evidentiary hearing” to

determine his mental fitness for execution under the Eighth Amendment, it is

axiomatic that the same due process protections are applied to similar Eighth

Amendment challenges to execution. Obviously, historically, the Eighth Amendment

encompasses the physical nature of the execution process. Specifically, the Eighth

Amendment, which is made applicable to the States through the Fourteenth

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-ofexecution claim, Rogers must: (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

9

So. 3d 695, 701 (Fla. 2017) (citing Glossip, 576 U.S. at 877 and Baze, 553 U.S. at 50,

61). Rogers has retained an expert to opine that Rogers satisfies the Baze/Glossip

tests, and that proceeding with his execution would be unconstitutional. Rogers faces

the risk of severe pain and suffering, which, without this Court’s intervention, will

cause his execution to be an unconstitutional miscarriage of justice. This Court should

grant the writ.

CONCLUSION

This Court should grant the petition for a writ of certiorari; stay the execution

and order further briefing; and/or vacate and remand this case to the Florida

Supreme Court.

Respectfully submitted,

/s/ Ali A. Shakoor*

Ali A. Shakoor

Florida Bar No.: 0669830

Assistant CCRC

Email: shakoor@ccmr.state.fl.us

Email: support@ccmr.state.fl.us

/s/ Adrienne Joy Shepherd

Adrienne Joy Shepherd

Florida Bar No.: 1000532

Assistant CCRC

Email: shepherd@ccmr.state.fl.us

Email: support@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

May 13, 2025

Dated

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