Petition for Writ of Certiorari — Anthony Floyd Wainwright, Petitioner v. Florida

Supreme Court briefJun 5, 2025

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*** CAPITAL CASE ***

No. _____

IN THE

Supreme Court of the United States

_________________________________________________________________

ANTHONY FLOYD WAINWRIGHT,

Petitioner,

STATE OF FLORIDA,

Respondent.

__________________________________________________________________

On Petition for a Writ of Certiorari to the

Supreme Court of Florida

___________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

TUESDAY, JUNE 10, 2025, AT 6:00 PM.

____________________________________________________________________

TERRI L. BACKHUS

Counsel of Record

Backhus & Izakowitz, P.A.

13321 Lake George Ln.

Tampa, FL 33618

(813) 957-8237

terribackhus@gmail.com

Counsel for Petitioner

*** CAPITAL CASE ***

QUESTIONS PRESENTED

Whether the Florida Supreme Court’s persistent and fundamental

misapprehension of this Court’s holding in Brady v. Maryland, 373 U.S. 83

(1963), and its progeny warrants correction to ensure Florida citizens,

including Mr. Wainwright, are not deprived of their due process rights?

Whether the Florida Supreme Court’s refusal to consider properly presented

mitigating evidence that provides a mitigating cause to cognitive and

neurobehavioral impairments violates the Eighth Amendment?

Whether the Florida Supreme Court’s imposition of a time-bar to preclude

relief on meritorious Eighth Amendment claims based on new scientific

evidence raises “troubling” due process concerns, as one Justice of this Court

has observed?

LIST OF DIRECTLY RELATED PROCEEDINGS

Underlying Criminal Trial

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 1994 CF 150

Direct Appeal

Florida Supreme Court (No. 86022)

Anthony Floyd Wainwright v. State of Florida, 704 So. 2d 511 (Fla. 1997)

Judgment Entered: November 13, 1997 (affirming)

Rehearing Denied: January 16, 1998

Petition for Writ of Certiorari Denied:

Supreme Court of the United States (No. 97-8324)

Anthony Floyd Wainwright v. State of Florida, 118 S. Ct. 1814 (1998)

Judgment Entered: May 18, 1998

Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: April 12, 2002 (denying motion for postconviction relief)

Florida Supreme Court (Nos. SC02-1342; SC02-2021)

Anthony Floyd Wainwright v. State of Florida, 896 So. 2d 695 (Fla. 2004)

Judgment Entered: November 24, 2004 (affirming denial of postconviction

relief and denying state habeas corpus relief)

Rehearing Denied: March 1, 2005

Petition for Writ of Certiorari Denied:

Supreme Court of the United States (No. 05-5025)

Anthony Floyd Wainwright v. State of Florida, 126 S. Ct. 188 (2005)

Judgment Entered: October 3, 2005

Federal Habeas Proceedings

District Court for the Middle District of Florida

Wainwright v. Sec’y, Fla. Dep’t of Corr., Case No. 3:05-cv-276-TJC

Judgment Entered: March 10, 2006 (dismissing habeas petition as untimely)

Reconsideration Denied: May 12, 2006

Eleventh Circuit Court of Appeals (No. 06-13453)

Wainwright v. Sec’y, Fla. Dep’t of Corr., 537 F.3d1282 (11th Cir. 2007)

Judgment Entered: November 13, 2007 (affirming habeas dismissal)

Rehearing Denied: December 26, 2007

First Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: September 20, 2007 (summarily denying)

Florida Supreme Court (No. SC07-2005)

Anthony Floyd Wainwright v. State of Florida, 2 So. 3d 948 (Fla. 2008)

Judgment Entered: November 26, 2008 (affirming)

Rehearing Denied: February 6, 2009

Second Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: June 15, 2009 (dismissing)

Florida Supreme Court (No. SC09-1411)

Anthony Floyd Wainwright v. State of Florida, 43 So. 3d 45 (Fla. 2010)

Judgment Entered: May 6, 2010 (affirming)

Rehearing Denied: August 3, 2010

Third (Amended) Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: June 15, 2012 (denying)

Florida Supreme Court (No. SC11-1669)

Anthony Floyd Wainwright v. State of Florida, 77 So. 3d 648 (Fla. 2011)

Judgment Entered: December 2, 2011 (affirming)

Fourth Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: June 15, 2012 (denying)

Florida Supreme Court (No. SC11-1669)

Anthony Floyd Wainwright v. State of Florida, 77 So. 3d 648 (Fla. 2011)

iii

Judgment Entered: December 2, 2011 (affirming)

Fifth Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: February 6, 2014 (denying)

Judgment Amended: April 24, 2014

Sixth Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgments Entered: June 2, 2015 and September 22, 2015 (denying)

Florida Supreme Court (No. SC15-2280)

Anthony Floyd Wainwright v. State of Florida, 2017 WL 394509 (Fla. Jan. 30, 2017)

Judgment Entered: January 30, 2017

Seventh Successive Postconviction Proceedings

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: July 15, 2022 (denying)

Rehearing Denied: August 4, 2022

Florida Supreme Court (No. SC22-1187)

Anthony Floyd Wainwright v. State of Florida, 2022 WL 4282149

Judgment Entered: September 16, 2022 (striking)

Rehearing Denied: January 12, 2023

Proceedings Under Federal Rule of Civil Procedure 60(b)

District Court for the Middle District of Florida

Wainwright v. Sec’y, Fla. Dep’t of Corr., Case No. 3:05-cv-276-J-TJC

Judgment Entered: January 27, 2020 (denying relief from judgment in part

and dismissing in part)

Reconsideration Denied: August 24, 2020

Eleventh Circuit Court of Appeals

Wainwright v. Sec’y, Fla. Dep’t of Corr. (No. 20-13639)

Judgment Entered: July 18, 2023 (affirming)

Rehearing Denied: October 13, 2023

Petition for Writ of Certiorari Denied:

Supreme Court of the United States (No. 23-6737)

Anthony Floyd Wainwright v. Sec’y, Fla. Dep’t of Corr., 144 S. Ct. 1363 (2024)

Judgment Entered: April 15, 2024

Eighth (Amended) Successive Postconviction Proceedings

and State Habeas (under warrant)

Circuit Court of Hamilton County, Florida

State of Florida v. Anthony Floyd Wainwright, Case No. 94-150-CF-2

Judgment Entered: May 20, 2024 (denying)

Florida Supreme Court (No. SC25-0708)

Anthony Floyd Wainwright v. State of Florida, 2025 WL 1561151 (Fla. June 3, 2025)

Judgment Entered: June 3, 2025 (affirming)

Florida Supreme Court (No. SC25-0709) (state habeas)

Anthony Floyd Wainwright v. Sec’y Fla. Dep’t of Corr., 2025 WL 1531495

Judgment Entered: May 29, 2025 (striking)

Related Proceedings Under 42 U.S.C. § 1983 (under warrant)

District Court for the Middle District of Florida

Wainwright v. Governor of Florida, et al., Case No. 3:25-cv-607

Judgment Pending

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................................................................... i

LIST OF DIRECTLY RELATED PROCEEDINGS ...................................................... ii

TABLE OF CONTENTS ............................................................................................... vi

INDEX TO APPENDIX ............................................................................................... vii

TABLE OF AUTHORITIES ....................................................................................... viii

DECISION BELOW ...................................................................................................... 1

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

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

STATEMENT OF THE CASE....................................................................................... 2

Introduction.......................................................................................................... 2

II. Procedural History ............................................................................................... 2

III. Facts Relevant to Mr. Wainwright’s Postconviction Claims .............................. 4

A. The State’s suppression of evidence that it knew a key witness at Mr.

Wainwright’s trial expected to receive a sentencing benefit from the State

in exchange for his testimony ........................................................................ 4

B. Mr. Wainwright’s transgenerational exposure to Agent Orange through his

father’s combat service in the Vietnam War ................................................. 8

REASONS FOR GRANTING THE WRIT .................................................................. 16

The Florida Supreme Court’s persistent, fundamental misapplication of Brady

and its precedent warrants correction by this Court to ensure uniform

protection of criminal defendants’ Due Process rights ..................................... 16

II. This Court should enforce its longstanding precedent recognizing the need for

individualized sentencing determinations under the Eighth Amendment ..... 23

III. Without this Court’s intervention, Florida will unjustly foreclose any

meaningful opportunity for a condemned individual to demonstrate that his

unique vulnerabilities render his execution unconstitutional ......................... 30

CONCLUSION............................................................................................................. 33

INDEX TO APPENDIX

Florida Supreme Court Order Affirming Denial of Eighth Amended Successive

Motion for Postconviction Relief, June 3, 2025 .......................................................... A1

Third Judicial Circuit Court for Hamilton County Order Denying Eighth Amended

Successive Motion for Postconviction Relief, May 20, 2025 ....................................... A2

vii

TABLE OF AUTHORITIES

Cases:

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) ...................................................... 25

Atkins v. Virginia, 536 U.S. 304 (2002) .......................................................... 24, 25, 28

Banks v. Dretke, 540 U.S. 668 (2004) .................................................................... 17, 21

Barwick v. State, 361 So. 3d 785 (Fla. 2023) .............................................................. 33

Brady v. Maryland, 373 U.S. 83 (1963) ................................................... i, 4, 16, 17, 21

Davis v. State, 928 So. 2d 1089 (Fla. 2005)................................................................. 20

Eddings v. Oklahoma, 455 U.S. 104 (1982) ................................................................ 29

Enmund v. Florida, 458 U.S. 782 (1982) ................................................................. 24, 25

Erlinger v. United States, 602 U.S. 821 (2024) ............................................................. 4

Ford v. Wainwright, 477 U.S. 399 (1986) ................................................................... 30

Godfrey v. Georgia, 446 U.S. 420 (1980) ...................................................................... 24

Hall v. Florida, 572 U.S. 701 (2014) ........................................................................... 30

Hunter v. State, 29 So. 3d 256 (Fla. 2008)................................................................... 27

Hurst v. Florida, 577 U.S. 92 (2016) ........................................................................... 24

Hutchinson v. State, 2025 WL 1155717 (Fla. Apr. 21, 2025) ..................................... 33

Kennedy v. Louisiana, 554 U.S. 407 (2008) .......................................................... 23, 24

Kyles v. Whitley, 514 U.S. 419 (1995).................................................................... 17, 22

Lockett v. Ohio, 438 U.S. 586 (1978) ............................................................................ 25

McCrory v. Alabama, 144 S. Ct. 2483 (2024)........................................................ 32, 33

Melton v. State, 367 So. 3d 1175 (Fla. 2023)............................................................... 33

Miller v. Alabama, 567 U.S. 460 (2012) ....................................................................... 24

Napue v. Illnois, 360 U.S. 264 (1959).......................................................................... 17

Penry v. Lynaugh, 492 U.S. 302 (1989) ....................................................................... 26

Porter v. McCollum, 558 U.S. 30 (2009)................................................................ 26, 29

Roper v. Simmons, 543 U.S. 551 (2005) .............................................. 23, 24, 25, 28, 29

Sears v. Upton, 561 U.S. 945 (2010)............................................................................ 30

Sheppard v. State, 338 So. 3d 803 (Fla. 2022) ............................................................ 20

Spaziano v. Florida, 468 U.S. 447 (1984) ................................................................... 24

viii

Stein v. State, 406 So. 3d 171 (Fla. 2024) ................................................................... 20

Strickland v. Washington, 466 U.S. 668 (1984) .......................................................... 29

Tennard v. Dretke, 542 U.S. 274 (2004)....................................................................... 25

Thompson v. Oklahoma, 487 U.S. 815 (1988) ............................................................. 23

United States v. Bagley, 473 U.S. 667, 676 (1985) ......................................... 17, 18, 19

Wainwright v. Dixon, 144 S. Ct. 1363 (2024)................................................................ 3

Wainwright v. Florida, 523 U.S. 1127 (1998) ............................................................... 3

Wainwright v. Florida, 546 U.S. 878 (2005) ................................................................. 3

Wainwright v. Sec’y, Fla. Dep’t of Corr., 537 F.3d 1282 (11th Cir. 2007).................... 3

Wainwright v. Sec’y, Fla. Dep’t of Corr., 3:05-cv-00276 (M.D. Fla. Jan. 27, 2020) ..... 3

Wainwright v. Sec’y, Fla. Dep’t of Corr., 2023 WL 4582786

(11th Cir. July 18, 2023) ................................................................................................ 3

Wainwright v. State, 704 So. 2d 511 (Fla. 1997) .......................................................... 3

Wainwright v. State, 896 So. 2d 695 (Fla. 2004) .......................................................... 3

Wainwright v. State, 2025 WL 1561151

(Fla. June 3, 2025) ............................................ 1, 4, 8, 18, 20, 21, 23, 27, 28, 29, 31, 33

Wiggins v. Smith, 539 U.S. 510 (2003) ................................................................. 26, 29

Woodson v. North Carolina, 428 U.S. 280 (1976)......................................................... 25

Constitutional Provisions:

U.S. Const. amend. VIII ................................................................................................ 1

U.S. Const. amend. XIV ................................................................................................. 1

Statutes and Rules:

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

Fed. R. Civ. P. 60(b) ....................................................................................................... 3

Fla. R. Crim. P. 3.851 .................................................................................................... 1

Petitioner Anthony Floyd Wainwright, a prisoner on Florida’s death row

whose execution is scheduled for June 10, 2025, respectfully urges this Honorable

Court to issue its writ of certiorari to review the decision of the Florida Supreme

Court issued on June 3, 2025.

DECISION BELOW

The Florida Supreme Court’s opinion affirming the denial of Mr.

Wainwright’s motion for postconviction relief appears as Wainwright v. State, 2025

WL 1561151 (Fla. June 3, 2025), and is reproduced in the Appendix at A1.

JURISDICTION

The judgment of the Florida Supreme Court was entered on June 3, 2025.

This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a).

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.

The Fourteenth Amendment provides, in relevant part:

No State shall . . . deprive any person of life, liberty, or property,

without due process of law.

Florida Rule of Criminal Procedure 3.851(d)(2)(A) provides, in relevant part:

(2) No [postconviction] motion shall be filed or considered pursuant to

this rule if filed beyond the [one-year] time limitation provided in

subdivision (d)(1) unless it alleges:

(A) the facts on which the claim is predicated were unknown to

the movant or the movant’s attorney and could not have

been ascertained by the exercise of due diligence[.]

STATEMENT OF THE CASE

Introduction

Mr. Wainwright’s death sentence is the product of multiple failures in the

legal system that occurred at every stage of his proceedings, in both the state and

federal courts. These failures have continued throughout Mr. Wainwright’s warrant

litigation and culminated in the opinion below. Certiorari review is necessary to

correct the Florida Supreme Court’s comprehensive misapplication of this Court’s

line of precedent regarding suppression of material evidence on the part of the

State, as well as the lower court’s persistent refusal to meaningfully consider

meritorious Eighth Amendment claims despite the Court’s clear mandate that such

consideration is constitutionally required.

II.

Procedural History

In 1994, Mr. Wainwright and his co-defendant Richard Hamilton were

indicted in Hamilton County for first-degree murder and associated charges. R. 1-2.

They were convicted after a joint trial before two separate juries. R. 1473, 1903.

After a penalty phase, Mr. Wainwright’s jury unanimously recommended an

advisory sentence of death, which the trial court imposed. 1 R. 1170-77, 3738-39,

The trial court found the following aggravating circumstances: (1) committed

while under sentence of imprisonment; (2) previous felony conviction involving use

or threat of violence; (3) committed while engaged in the commission of armed

kidnapping and sexual battery; (4) committed to avoid arrest; (5) especially heinous,

atrocious or cruel; and (6) committed in a cold, calculated and premeditated

manner. R. 1171-73. The court found no statutory mitigating circumstances. R.

1174-75. As for non-statutory mitigation, the court found that “defendant’s

3790. The Florida Supreme Court affirmed, and this Court denied certiorari.

Wainwright v. State, 704 So. 2d 511, 513 n.4 (Fla. 1997), cert. denied, Wainwright v.

Florida, 523 U.S. 1127 (1998). Mr. Wainwright’s sentence was upheld on

postconviction review, Wainwright v. State, 896 So. 2d 695 (Fla. 2004) (also denying

state habeas relief), cert. denied, Wainwright v. Florida, 546 U.S. 878 (2005), and

his subsequent efforts to raise meritorious issues in state court were summarily

rejected.

In 2005, Mr. Wainwright filed a petition for writ of habeas corpus in federal

district court, which the court ultimately dismissed as untimely due to federal

counsel filing the petition after the one-year statute of limitations under the

Antiterrorism and Effective Death Penalty Act had expired. Wainwright v. Sec’y,

Fla. Dep’t of Corr., 537 F.3d 1282 (11th Cir. 2007) (affirming). In 2019, Mr.

Wainwright unsuccessfully moved for relief from that judgment under Federal Rule

of Civil Procedure 60(b)(6). Wainwright v. Sec’y, Fla. Dep’t of Corr., No. 3:05-cv00276 (M.D. Fla. Jan. 27, 2020). The Eleventh Circuit affirmed, Wainwright v.

Sec’y, Fla. Dep’t of Corr., No. 20-13639, 2023 WL 4582786 (11th Cir. July 18, 2023),

and this Court denied certiorari review. Wainwright v. Dixon, 144 S. Ct. 1363

(2024).

On May 9, 2025, Governor Ron DeSantis signed a death warrant for Mr.

Wainwright, setting his execution for June 10 at 6:00PM. On May 15, Mr.

difficulties in school and his social adjustment problems, due in part to his problems

associated with bed-wetting do provide some measure of mitigation.” R. 1176.

Wainwright filed an amended eighth successive postconviction motion raising three

claims: (1) that his due process rights had been violated under Brady v. Maryland,

373 U.S. 83 (1963), when the State suppressed evidence that two critical witnesses

who testified at the joint trials expected to receive sentencing benefits in exchange

for their testimony; (2) that his execution would violate the Eighth Amendment in

light of new scientific evidence regarding his transgenerational exposure to Agent

Orange through his father’s combat service in the Vietnam War; and (3) a claim

that his sentencing proceedings violated the Sixth and Fourteenth Amendments

under this Court’s recent opinion, Erlinger v. United States, 602 U.S. 821 (2024).

The circuit court summarily denied Mr. Wainwright’s successive postconviction

motion without an evidentiary hearing on May 20, 2025. Mr. Wainwright appealed

to the Florida Supreme Court, which affirmed the circuit court’s decision on June 3,

2025. Wainwright v. Florida, 2025 WL 1561151 at *1; App. A1 at 1.

III.

Facts Relevant to Mr. Wainwright’s Postconviction Claims

The State’s suppression of evidence that it knew a key witness

at Mr. Wainwright’s trial expected to receive a sentencing

benefit from the State in exchange for his testimony

At Mr. Wainwright’s trial, the State presented the testimony of jailhouse

informant Robert Allen Murphy, who was then serving a 12-year sentence. R. 270204. Murphy met Mr. Wainwright in confinement after Murphy used his “trustee”

status to have sex with a female prisoner. R. 2705.

Murphy testified that, while at the jail, Mr. Wainwright had told him he and

Hamilton came to Florida after escaping jail or prison. They abducted a woman at

“some kind of store” and “went off into the woods.” Mr. Wainwright said he

strangled the woman, but she wouldn’t die, “kind of like when you hit a puppy in

the head and it kind of shakes a little bit[,]” so Mr. Wainwright shot her in the head

twice then dragged her off and left her. R. 2708.

Murphy could not initially identify Mr. Wainwright in the courtroom. R.

2705. But after his testimony, the State asked him to “specifically [] direct your

attention to [defense] counsel table over there. Do you recognize anybody seated at

that table right there?” At that point, Murphy said a man sitting there “does look

like Anthony Wainwright, but he didn’t have any hair and he didn’t have no

mustache [when I talked to him].” R. 2710.

On cross-examination, Murphy said that he had a pending “modification of

sentence” to lower his sentence, but he was “not necessarily” hoping to get a

sentence reduction. R. 2712-13. On redirect, Murphy said the State did not promise

anything in exchange for his testimony. R. 2726.

At Hamilton’s trial, the State presented testimony from Dennis Givens,

another jailhouse informant who was placed in confinement at the Taylor County

Jail with Mr. Wainwright after bringing tobacco in. R-RH. 3375-77.

Givens testified that Mr. Wainwright claimed to have been the dominant

actor in the murder. R-RH. 3385. He “took a scarf or shirt or something and

wrapped it around her neck and tried to strangle her, and that didn’t work, so he

said he punched her in the back of the head a few times.” R-RH. 3384. “I put a

bullet in the gun, walked over there and I shot her in the back of the head [twice]. I

kicked her to make sure she was dead, and I drug her off in some bushes and threw

some bushes over her.” R-RH. 3385. Givens said Mr. Wainwright called Hamilton a

“pussy” for not killing her. R-RH. 3385. Givens characterized Mr. Wainwright as a

“lunatic” who would say things like “it is a good night for a homicide” or “I finally

did it[.]” R-RH. 3387, 3392. He said Mr. Wainwright was “evil” and called himself a

maniac. R-RH. 3392-93.

On May 13, 2025, Murphy admitted for the first time that, contrary to his

trial testimony, he expected a sentencing benefit in exchange for testifying against

Mr. Wainwright. He also disclosed that Dennis Givens likewise expected a benefit

in return for testifying against Mr. Wainwright.

Murphy disclosed that while he was housed with Mr. Wainwright in

confinement, Mr. Wainwright “was talking crazy about everything, including his

case. What he was saying about his case was not believable to me, because it was so

sensational and seemed more like he was trying to act tough.” PCR8. at 240. When

he informed law enforcement of Mr. Wainwright’s purportedly inculpatory

statements, he told them, “I didn’t believe it all because it was so crazy. I remember

asking them, ‘Would you even believe that?’” PCR8. at 240. But law enforcement

ignored this. Without any prior notice, Murphy was later transported from where he

was serving his prison sentence to the county jail so that he could testify against

Mr. Wainwright. PCR8. at 240. Murphy’s upcoming hearing regarding a

modification of his sentence, which had been scheduled prior to his testimony, was

“pushed back until after my testimony in Wainwright’s case.” PCR8. at 240.

While at the county jail, Murphy and Dennis Givens met and “kept

discussing the case and our testimony before we gave it.” Id. Givens “told [Murphy]

that he was receiving a benefit in exchange for his testimony against Anthony.”

PCR8. at 240. He specified what it was to Murphy, although Murphy no longer

remembers what he said. PCR8. at 240. This prompted Murphy to seek a benefit

before testifying as well. He contacted his defense attorney, who spoke with the

State about it. PCR8. at 240. Murphy’s attorney assured him that he would receive

a benefit in exchange for testifying. PCR8. at 240.

Then, when I met with the prosecutor prior to testifying, he said that

he could not make a promise but the way he said it made it clear to

me that I would get a benefit if I testified. He repeated that so

much that it became annoying, and I found it unusual because

everyone knew the elephant in the room. We all knew what

was going on and that I would be receiving something in

exchange for my testimony.

PCR8. at 240-41 (emphasis added). And, just as he had been assured, Murphy’s

benefit was realized after his testimony against Mr. Wainwright. “At the

[modification of sentence] hearing, the judge called the prosecutor on the phone and

he provided information about my testimony. After the phone call, I was given a

choice of doing time in prison or a lengthier probation. I chose the probation.” PCR8.

at 241.

The Florida Supreme Court denied the claim, finding that “[Mr.] Wainwright

failed to exercise reasonable diligence in pursuing” it. Wainwright, 2025 WL

1561151 at *8; App. A1 at 5. The court also found that “the allegations [in the

Murphy affidavit] are insufficient to establish that the State suppressed evidence”

because there was no evidence that Murphy had entered into an explicit deal with

the State in exchange for his testimony. Id. at *9; App. A1 at 6. As to materiality,

the state court found the evidence was not material because “there was other

significant evidence introduced against Wainwright . . . [t]he alleged evidence of

Murphy’s expectation of a benefit for his testimony would not undermine confidence

in the outcome.” Id.; App. A1 at 6.

Mr. Wainwright’s transgenerational exposure to Agent Orange

through his father’s combat service in the Vietnam War

From conception, Anthony had a minimal chance of developing into a

fully functioning adult….His low cognitive functioning impaired his

ability to make independent and normative decisions regarding his

behaviors. Anthony’s condition is the result of his father’s heroism in

Vietnam, and a Nation that chose to turn a blind eye to the problems

manifest in children like him.

PCR8. at 238 (report of Dr. Victoria Cassano).

At the time of Mr. Wainwright’s trial and sentencing 30 years ago, little

research was being done into the in utero transmission of the dioxin TCDD (more

commonly referred to as Agent Orange). This was a calculated decision by the

Veterans Administration, an agency in the same government that had sent its

citizens off to fight in the combat zones that would be heavily sprayed with Agent

Orange and the other toxic “rainbow herbicides” in the Vietnam War. As a result of

this concealment, it is only recently that the scientific and medical communities

have begun to research the transgenerational effects—including cognitive and

neurobehavioral impacts—of this exposure on the children of Vietnam combat

Veterans, like Mr. Wainwright.

Ken Wainwright’s Agent Orange exposure and Anthony’s afflictions

Anthony was conceived approximately six months after his father, Ken,

returned from a ten-month Vietnam War deployment for which he received multiple

awards including a Bronze Star. 2 PCR8. at 221. While deployed, Ken was assigned

to the III Corps Tactical Zone as a Field Wireman. PCR8. at 221. This was in the

region Northeast of Saigon, amidst some of the heaviest fighting and heaviest

spraying with “rainbow herbicides” including Agent Orange and Agent Blue, an

arsenic-containing herbicide. PCR8. at 221. Due to the specifics of Ken’s service,

there exists “[c]ompensable, irrefutable evidence of [his] Agent Orange exposure.”

PCR8. at 237. Agent Orange contains “the most potent dioxin manufactured.”

PCR8. at 225.

It is now understood that Ken’s defoliant exposure had a lifelong impact on

Anthony. “Even as a tiny baby there was something ‘off’ about Anthony…. [H]e

never stopped crying.” PCR8. at 237. In the first year of his life, he was in and out of

the hospital with bronchitis and asthma. As a child, he displayed many of the same

For clarity, the Wainwrights’ first names are used.

ailments that were present in Ken after his service and that are presumptively

associated with Agent Orange exposure. PCR8. at 237-38 (detailing tremors, speech

difficulties, and dermatological problems).

The physical afflictions were increasingly accompanied by cognitive and

emotional deficits. Anthony was taken for mental and behavioral evaluations

beginning at the age of six, due to behavioral struggles, an inability to sit still,

immaturity, and poor impulse control. PCR8. at 222. In fourth grade, he was tested

for learning disabilities and placed in a classroom for learning disabled students.

PCR8. at 222. At age 11, he was found to be “borderline mentally retarded” based on

his intellectual and adaptive functioning. PCR8. at 222. He could not read. PCR8. at

224. “In today’s lexicon, he would be considered to have an ‘intellectual disorder.’”

PCR8. at 222. His struggles grew more pronounced with age, and by 12 his

developmental and neurological functioning was equivalent to a child four to five

years younger. PCR8. at 223. He had to repeat the seventh grade and was in

remedial classes. PCR8. at 222.

Continuing into his teens, Anthony suffered from impulsivity, excessive

talking, a tendency to follow others, negative attention-seeking behaviors, enuresis,

defiance, trauma symptoms, social and emotional impairment, poor academic

performance, low self-esteem, detachment, substance dependence, despondence,

continued tremors, and global intellectual and learning difficulties. PCR8. at 22325. Minimal therapeutic interventions were utilized, and those that were proved not

only inadequate but affirmatively worsened his symptoms and contributed to

further behavioral struggles. PCR8. at 223-5. His prognosis was “not very

promising” for becoming an independent and functioning adult. His family was

warned that without admission to a long-term treatment facility, he would likely

end up in training school or prison, PCR8. at 224, a prediction realized by July

1987, when he was placed on probation for a nonviolent offense. PCR8. at 224. A

counselor noted that Anthony appeared “despondent, but not disrespectful.” PCR8.

at 224. A few months later, he was “very depressed and almost catatonic.” PCR8. at

224. His tremors were apparent. PCR8. at 224.

A 2019 evaluation concluded that Anthony’s history was defined by cognitive

impairment, below-average intellectual functioning, and immaturity. PCR8. at 224.

He lagged behind his peers in his ability to develop age appropriate social-emotional

skills and displayed depression, “hyperkinetic activity,” trauma symptoms, and

social impairment. These longstanding impairments impacted his ability to

“formulate, crystalize, and express his thoughts and feelings.” PCR8. at 224-25.

Anthony’s afflictions, while ameliorated to a degree by the structured prison

environment in which he lives, have never gone away.

Anthony’s deficits are directly attributable to Agent Orange exposure

Anthony’s father, Ken, was a Vietnam combat Veteran who was exposed to

tactical herbicides. PCR8. at 225. The “rainbow herbicides,” including Agent

Orange, were a class of chlorinated phenoxy compounds used to defoliate large

areas of dense forest during the Vietnam war. PCR8. at 225. Agent Orange

(hereinafter “TCDD”, its chemical formulation) is the most potent dioxin

manufactured. PCR8. at 225. The intense combat operations in the area sprayed

earth and flora disrupted by various munitions, spreading herbicide-laden dust

which was inhaled, ingested, and permeated clothing and skin. PCR8. at 225.

Catastrophic risks of TCDD to the child of an exposed Veteran are now

established by scientific study, but medical advancements regarding this topic have

been very limited due to governmental decisions:

[T]here is an increasing body of literature indicating that children of

Vietnam Veterans have a proportionally greater incidence of cognitive

disorders and neurobehavioral disorders than the general population.

In the 22 years that The Institute of Medicine (IOM) published its

Reports on Veterans and Agent Orange, it never once investigated

neurobehavior effects in offspring of Vietnam Veterans…. There

is a reason for this that is not readily apparent to those not intimately

involved in the process of developing these reports. While initially

mandated by congress, each…report, [until] 2018, was produced under

contract with the VA….A VA representative presents the “charge” to

the committee, in which it directs…what it wishes to be investigated.

The IOM is bound by this charge, and by contract, cannot exceed the

authority given to it in the charge. Despite all the evidence over the

years, VA never asked IOM to investigate it.

PCR8. at 225-26 (emphasis added). Research now shows that TCDD accumulates in

fat tissue, affecting numerous aspects of cell metabolism and altering the expression

of a large number of genes. PCR8. at 225-26. Due to TCDD’s long half-life, the levels

in Ken’s body were “great and persisted long after his son, Anthony, was conceived.

In fact, his body burden of these compounds contributed to his ultimate demise from

esophageal cancer.” PCR8. at 226-27. TCDD’s damage to genes means that second

and third generational effects, especially neurocognitive effects in a child, can be

attributed to parental exposure. PCR8. at 226-27.

Though literature supports the link, the VA has done little to investigate it.

In November 2023, a United States Senator held a hearing on a Children’s Toxic

Exposure Research law. PCR8. at 227-28. There, a VA representative testified that

if a connection was found between a parent’s toxic exposure to TCDD during

military service and a child’s illness, the VA would be responsible for providing

health care and compensation, and that would greatly increase their budget. PCR8.

at 228. This suggests VA knowledge of the link. PCR8. at 228.

TCDD is the most toxic chemical produced by humans. It causes genomic

instability, where genetic damage is observed several generations later in the

progeny of exposed cells. PCR8. at 228. TCDD promotes transgenerational

inheritance of disease via changes in the chemical structure of DNA. PCR8. at 228.

This happens from the male germline after fertilization, resulting in changes to the

offspring’s genome that can lead to disease in future generations. PCR8. at 228. For

example, one study on an Italian town that was exposed to dioxins in World War II

documented health effects in the grandchildren of women that conceived children

even more than 25 years after exposure. PCR8. at 229.

Agent Orange exposure and parental PTSD have a complex interaction as

contributing factors to cognitive and neurobehavioral effects in the children of

Vietnam Veterans. PCR8. at 229. When disabilities in children of Vietnam Veterans

were compared to those of non-veterans, the comparison yielded an emerging

pattern of functional problems in the Veterans’ children, including significant

increases in all types of learning and attention disorders and emotional/behavioral

disorders. PCR8. at 229. This is attributed to parental damage to the immune

system induced by TCDD and similar compounds. PCR8. at 229.

A striking study was conducted on the reproduction of Agent Orange-exposed

women, or the wives of soldiers exposed to dioxins. PCR8. at 230. Less than

10% resulted in miscarriages and 14% in still- or premature births. Of the

successful births, 14 children died at an early age, and 66% of children had

developed a physical or mental disability. PCR8. at 230. Similarly, a recent

2023 study of Vietnamese children living near the previous Da Nang Airbase 40

years after the Vietnam War showed that perinatal exposure to TCDD impacts

social,

emotional,

and

cognitive

functions,

leading

sex-specific

neurodevelopmental disorders. PCR8. at 230. By the age of eight, girls with high

TCDD levels had ADHD-like behaviors and autism spectrum disorder, whereas

boys showed neurodevelopmental disorder and learning disabilities of the same ilk

as evident in Anthony by the time he was in 4th grade. PCR8. at 230.

The studies’ conclusions now can be corroborated and extrapolated to

children of American Vietnam Veterans. PCR8. at 230. At the end of the Vietnam

War, the level of TCDD present in Vietnam Veterans was at least 35 times, and up

to 1500 times, greater than that of the general population. PCR8. at 230. A child

like Anthony, who was conceived only six months after his father returned from

Vietnam, would have been affected by that TCDD, either due to epimutations, or to

direct exposure of TCDD during fertilization of the maternal gamete. PCR8. at 230.

The effects of TCDD exposure on Anthony’s development are further

complicated by Ken’s likely undiagnosed, untreated PTSD. PCR8. at 230. Children

of Vietnam combat Veterans with PTSD exhibit a substantially greater degree of

dysfunctional social and emotional behavior (including inadequate self-control

manifesting in behaviors like aggression, hyperactivity, and delinquency) than

those of non-combat Veterans without PTSD. PCR8. at 231. Even among children

whose fathers all served in combat, those whose fathers had PTSD symptoms

showed more problems with activity, social and school conduct, behavior, emotional

difficulties, and neuroticism. PCR8. at 231.

Information on transgenerational effects of Agent Orange exposure is not

readily accessible or widely known by the general medical community, let alone the

general public. Prior IOM reports did not address the neurobehavioral or cognitive

effects of transgenerational exposure, and most clinicians review only those reports

when seeking available information on the effects of Agent Orange. PCR8. at 231.

Further, the stringent requirements placed on the IOM for accepting research

studies vastly limited the available information in these reports.

Research regarding transgenerational effects is even newer and more

obscure to the general medical community. PCR8. at 231. Modes of transmission to

offspring were not established until the early 2020s, and the studies discussing this

phenomenon only began to be published in 2023 at the earliest. PCR8. at 231. Thus,

the ability to integrate studies into a cogent medical, much less legal, theory has

only recently become possible. PCR8. at 231.

Dr. Cassano concluded that many neurobehavioral and cognitive issues

linked to transgenerational exposure to TCDD manifested in Anthony from an early

age, including learning disabilities, poor impulse control, and low social functioning.

PCR8. at 231. Anthony was exposed to the effects of Agent Orange through his

father’s service in Vietnam. This detrimentally affected Anthony’s development and

strongly contributed to his cognitive and behavioral disorders. PCR8. at 232-33.

From the moment of conception, Anthony had a slim chance of developing into a

fully functioning adult. The effects of his Agent Orange exposure were exacerbated

by a lack of appropriate medical treatment, and his subjection to harsh behavioral

modification techniques at wilderness camps, training school, and detention centers,

which only magnified his emotional and behavioral instability. PCR8. at 232-33.

REASONS FOR GRANTING THE WRIT

The Florida Supreme Court’s persistent, fundamental misapplication

of Brady and its precedent warrants correction by this Court to

ensure uniform protection of criminal defendants’ Due Process

rights.

In a long line of cases, this Court has etched out the contours of the due

process violation that occurs when the State resorts to evidentiary gamesmanship

in its efforts to prosecute a criminal defendant. Brady v. Maryland, 373 U.S. 83, 87

(1963). “Society wins not only when the guilty are convicted but when criminal

trials are fair; our system of the administration of justice suffers when any accused

is treated unfairly.” Id. In Brady, this Court held that due process is violated when

“the suppression by the prosecution of evidence favorable to an accused . . . violates

due process where the evidence is material to guilt or to punishment, irrespective of

the good faith or bad faith of the prosecution.” Id.

The Court extended this principle to impeachment evidence in United States

v. Bagley, 473 U.S. 667, 676 (1985). The Bagley Court explained that such evidence,

“if disclosed and used effectively, [] may make the difference between conviction and

acquittal.” Id; cf. Napue v. Illinois, 360 U.S. 264, 269 (1959) (“The jury’s estimate of

the truthfulness and reliability of a given witness may well be determinative of

guilt or innocence, and it is upon such subtle factors as the possible interest of the

witness in testifying falsely that a defendant’s life or liberty may depend.”).

In Kyles v. Whitley, this Court clarified that Brady materiality must be

analyzed cumulatively, “not item by item.” 514 U.S. 419, 437 (1995). Finally, the

Court held in Banks v. Dretke that the prosecution’s disclosure obligation is a

continuing one: When police or prosecutors conceal exculpatory or impeaching

material in the State’s possession, it is “incumbent on the State to set the record

straight.” 540 U.S. 668, 676 (2004). Collectively, this Court’s Brady line of cases

delineates well-defined obligations on the State, as well as clear analytical

parameters for lower courts to follow when considering such claims.

The Florida Supreme Court’s ruling on Mr. Wainwright’s Brady claim flouted

this Court’s holdings in multiple critical respects. Given the pervasive nature of this

misapplication in the lower court’s opinion, and in light of the seriousness of the

punishment imposed on Mr. Wainwright as a result, this Court’s review is

warranted to correct the Florida Supreme Court’s understanding of Brady and its

precedent in order to ensure that criminal defendants in Florida are able to

meaningfully raise and litigate due process claims based on prosecutorial

misconduct.

First, the court found that no violation occurred because there was no

evidence in Murphy’s affidavit that the State ever made a formal or informal deal

with him in exchange for his testimony. Wainwright, 2025 WL 1561151 at *8; App.

A1 at 5. Yet this Court confronted this exact scenario in Bagley and held that that is

not the standard. There,

Defense counsel asked the prosecutor to disclose any inducements that

had been made to witnesses, and the prosecutor failed to disclose

that the possibility of a reward had been held out . . . if the

information

[the

witnesses]

supplied

led

‘the

accomplishment of the objective sought to be obtained [by the

Government]. This possibility of a reward gave [them] a direct,

personal stake in respondent’s conviction. The fact that the

stake was not guaranteed through a promise or binding

contract, but was expressly contingent on the Government’s

satisfaction with the end result, served only to strength any

incentive to testify falsely in order to secure a conviction. . . .

While the Government is technically correct that [there was not] a

‘promise of reward,’ [it] misleadingly induce[d] defense counsel to

believe that [the witnesses] provided [their statements] . . . without

any “inducements.”

Bagley, 473 U.S. at 683-84 (emphasis added). That is exactly what happened here.

At Mr. Wainwright’s trial, defense counsel attempted to impeach Murphy’s

testimony by asking about his pending motion to modify his twelve-year sentence.

Murphy admitted that he had such a motion pending. R. 2712. However, he stated

that he was “not necessarily” hoping to get a sentence reduction. R. 2713. On

redirect, Murphy testified that the State had not promised him anything in

exchange for his testimony. R. 2726.

His 2025 statement now shows that he had actively pursued—and expected

to receive—a deal with the State in exchange for testifying against Mr. Wainwright.

As in Bagley, no “promise or binding contract was made” prior to his testimony,

Bagley, 473 U.S. at 683-84, but “everyone knew the elephant in the room. We all

knew what was going on and that I would be receiving something in exchange for

my testimony.” PCR8. at 240-41. That expectation came to pass after Murphy

testified to the State’s satisfaction against Mr. Wainwright. “[T]he judge called the

prosecutor on the phone and he provided information about my testimony. After the

phone call, I was given a choice of doing time in prison or a lengthier probation. I

chose the probation.” PCR8. at 241.

The Florida Supreme Court’s persistent refusal to recognize that a Brady

violation may occur even absent an “explicit deal”—and that, in fact, the absence of

an express promise can be even stronger motivation for a witness to modify his

testimony to please the prosecution and secure a deal—flies in the face of Bagley

and is a recurring issue in the state court’s opinions that warrants this Court’s

review to ensure the uniform application of Brady nationwide. See, e.g., Stein v.

State, 406 So. 3d 171, 175 (Fla. 2024) (denying Brady claim in the absence of an

explicit deal); Sheppard v. State, 338 So. 3d 803, 827 (Fla. 2022) (same); Davis v.

State, 928 So. 2d 1089, 1115-16 (Fla. 2005) (no Brady violation where there was “no

evidence that a deal was in fact made or a promised conclusively extended”).

The Florida Supreme Court’s finding that “Wainwright failed to exercise

reasonable diligence in pursuing” the claim is likewise predicated on a

misapprehension of this Court’s Brady precedent. Wainwright, 2025 WL 1561151 at

*8; App. A1 at 5. The court framed the issue as a question of diligence, but this

Court has never held that diligence is an element that must be satisfied to establish

a Brady violation. Even so, Mr. Wainwright was diligent—at trial and afterwards—

in attempting to uncover this evidence.

At trial, defense counsel asked Murphy about his pending motion for a

sentence modification, but Murphy stated that he was “not necessarily” hoping to

get a sentence reduction. R. 2713. And on redirect by the State, Murphy reiterated

that the State had not promised him anything in exchange for his testimony. R.

2726. Mr. Wainwright made subsequent post-trial efforts to contact Murphy

regarding his testimony, to no avail. Thus, Mr. Wainwright was diligent. On the

contrary, the State failed to uphold its ongoing Brady obligations by disclosing this

evidence to Mr. Wainwright, instead continuing to suppress it. But as this Court

held in Banks, when police or prosecutors conceal exculpatory or impeaching

material in the State’s possession, it is “incumbent on the State to set the record

straight.” 540 U.S. at 676. That never happened here.

Additionally, the state court’s diligence finding rested on a critical factual

error: that Murphy’s affidavit did not establish any Brady violation because “it was

clear from the trial testimony that Murphy had a [pending] motion for modification

of sentence . . . . And it was a matter of public record that [he] was released on

probation shortly after his testimony.” Wainwright, 2025 WL 1561151 at *8; App.

A1 at 5-6. But this entirely ignores the crux of Mr. Wainwright’s Brady claim. Until

Murphy’s affidavit, there was no evidence demonstrating the nexus between his

testimony in Mr. Wainwright’s case and his release to probation shortly thereafter.

Murphy’s affidavit provided that missing link—one that Mr. Wainwright diligently

attempted to uncover, even after his conviction, but that was continuously

suppressed by the State.

The Florida Supreme Court’s flawed application of Brady’s principles did not

stop there. The court’s materiality analysis erroneously focused exclusively on the

impact of the evidence on the guilt phase, and failed to analyze its impact on Mr.

Wainwright’s sentence. Wainwright, 2025 WL 1561151 at *9; App. A1 at 6. Yet as

this Court held in Brady, a due process violation occurs “where the evidence is

material to guilt or to punishment.” Brady, 373 U.S. at 87 (emphasis added).

Murphy’s testimony, which detailed inflammatory statements Mr. Wainwright

supposedly made regarding his role in the murder, played an outsized role in

sentencing Mr. Wainwright to death. The trial court relied on Murphy’s testimony

to find the ‘HAC’ and ‘CCP’ aggravating factors. See R. 1173. It also used his

testimony to reject a statutory mitigator. R. 1174. 3 The lower court’s exclusive focus

on the guilt phase did not comport with this Court’s instruction that a Brady

analysis must be conducted with respect to both the conviction and the sentence.

Finally, the Florida Supreme Court failed to conduct the cumulative

materiality analysis that this Court mandated in Kyles. When such an analysis is

properly undertaken, Murphy’s affidavit paints the State’s case against Mr.

Wainwright in an entirely new light. If the jury had been told that Murphy expected

to receive a sentencing benefit from the State in exchange for his testimony against

Mr. Wainwright, it would have potentially altered how the jury viewed all of the

jailhouse informant testimony against Mr. Wainwright, as well as the State’s case

for death as a whole. 4 See Kyles, 514 U.S. at 445 (evidence can be material for

As for the guilt phase, the State clearly relied on the jailhouse informant

testimony to secure Mr. Wainwright’s conviction. See R. 3552 (closing argument at

guilt phase stating that “the defendant Wainwright by his own lips has convicted

himself of all four of these crimes of which he is accused”); R. 3555-57 (detailing

Murphy’s inculpatory statements not only for the purpose of establishing Mr.

Wainwright’s guilt but also to convince the jury not to believe any defensive

statements attributed to him); R. 3579 (State attempting to bolster Murphy’s

credibility).

Murphy’s statement also called into question the testimony of jailhouse

informant Dennis Givens, who testified at the trial of Mr. Wainwright’s codefendant. Although Mr. Wainwright’s jury did not hear Givens’s testimony, the

same trial judge who was responsible for deciding his sentence presided over both

impeaching a witness and attacking the “thoroughness and . . . good faith” of the

investigation). Yet the Florida Supreme Court did not address this possibility,

instead conclusorily stating that “[t]he alleged evidence of Murphy’s expectation of a

benefit for his testimony would not undermine confidence in the outcome.”

Wainwright, 2025 WL 1561151 at *9; App. A1 at 6.

In light of the seriousness of the punishment imposed on Mr. Wainwright and

the pervasive misapplication of this Court’s precedent, certiorari review is

warranted to correct the lower courts’ fundamental misunderstanding of Brady and

to ensure that the due process rights of criminal defendants in Florida are

safeguarded from prosecutorial misconduct as this Court requires.

II.

This Court should enforce its longstanding precedent recognizing

the need for individualized sentencing determinations under the

Eighth Amendment.

The Eighth Amendment applies with special force in capital cases. See Roper

v. Simmons, 543 U.S. 551, 568 (2005) (citing Thompson v. Oklahoma, 487 U.S. 815,

856 (1988) (O’Connor, J., concurring in judgment)). This Court “insists upon confining

the instances in which the punishment can be imposed,” Kennedy v. Louisiana, 554

trials and so heard the inflammatory statements Givens testified Mr. Wainwright

made to him. Furthermore, evidence of Givens’s anticipation of a deal in exchange

for inculpating Mr. Wainwright would have further impeached Murphy, who by his

own admission was influenced by Givens to seek a deal from the State in exchange

for his testimony against Mr. Wainwright. See PCR8. at 240 (Murphy crediting his

decision to pursue a deal to Givens’ statement that he was receiving one); PCR8. at

240 (Murphy admitting that he and Givens repeatedly discussed their upcoming

testimony against Mr. Wainwright). The Florida Supreme Court did not discuss

Givens at all in its analysis.

U.S. 407, 420 (2008); otherwise, the law “risks its own sudden descent into brutality,

transgressing the constitutional commitment to decency and restraint.” Id. Thus,

states must administer the death penalty “in a way that can rationally distinguish

between those individuals for whom death is an appropriate sanction and those for

whom it is not.” Spaziano v. Florida, 468 U.S. 447, 460 (1984) (overruled on other

grounds by Hurst v. Florida, 577 U.S. 92 (2016); see also Godfrey v. Georgia, 446 U.S.

420, 428, 433 (1980) (setting death sentence aside in order to avoid “arbitrary and

capricious infliction of the death penalty” because the situation did not reflect “a

consciousness materially more ‘depraved’ than that of any person guilty of

murder.”).

“With respect to retribution—the interest in seeing that the offender gets his

‘just deserts’—the severity of the appropriate punishment necessarily depends on the

culpability of the offender.” Atkins v. Virginia, 536 U.S. 304, 319 (2002). For this

reason, the death penalty is reserved not only for “a narrow category of the most

serious crimes[,]” but must be limited even further to those “whose extreme

culpability makes them ‘the most deserving of execution.’” Roper, 543 U.S. at 568

(citing Atkins, 536 U.S. at 319); see also Miller v. Alabama, 567 U.S. 460 (2012). Thus,

under this Court’s longstanding precedent, a capital defendant’s “punishment must

be tailored to [his] personal responsibility and moral guilt.” Enmund v. Florida, 458

U.S. 782, 800 (1982).

Over the years, this Court’s “narrowing jurisprudence, which seeks to ensure

that only the most deserving of execution are put to death,” has enumerated classes

of individuals whose “lesser culpability” does not merit imposition of the death

penalty as retribution. Atkins, 536 U.S. at 314-15, 319. See id. (categorically

exempting individuals with intellectual disability from execution); Roper, 543 U.S. at

571 (“Retribution is not proportional if the law’s most severe penalty is imposed on

one whose blameworthiness is diminished, to a substantial degree, by reason of youth

and immaturity.”).

And, in addition to categorical exemptions, this Court has repeatedly

emphasized the need for individualized sentencing that evaluates a particular

defendant’s culpability by “focus[ing] on ‘relevant facets of the character and record

of the individual offender.’” Enmund, 458 U.S. at 798 (citing Lockett v. Ohio, 438 U.S.

586 (1978), and Woodson v. North Carolina, 428 U.S. 280 (1976)); see also AbdulKabir v. Quarterman, 550 U.S. 233, 264 (2007) (a sentencer faced with the “grave

task of imposing a death sentence” must “decide whether death is an appropriate

punishment for that individual in light of his personal history”); Tennard v. Dretke,

542 U.S. 274, 285-87 (2004) (rejecting requirement that “an individual must establish

a nexus between [their] mental capacity and the crime” in order for such mitigating

evidence to be considered).

Here, Mr. Wainwright’s circumstances exemplify the appropriateness of a

recognition that the ultimate penalty—that reserved for only the most culpable

offenders—would be disproportionate, excessive, and cruel as applied to his

individual circumstances. In Porter v. McCollum, 558 U.S. 30 (2009), the United

States Supreme Court reaffirmed that “[e]vidence about [a] defendant’s background

and character is relevant because of the belief, long held by this society, that

defendants who commit criminal acts that are attributable to a disadvantaged

background…may be less culpable.” 558 U.S. at 41 (quoting Penry v. Lynaugh, 492

U.S. 302, 319 (1989)) (quotations omitted). And, in particular, wartime combat

injuries are precisely the “kind of troubled history [the Court has] declared relevant

to assessing a defendant’s moral culpability.” Id. (quoting Wiggins v. Smith, 539

U.S. 510, 535 (2003)). Although Mr. Wainwright did not serve in the Vietnam War,

and was not even a viable life at that point, he was catastrophically and immutably

cognitively damaged from it. Unlike Veterans, who make knowing sacrifices for our

country in the face of grave risks, Mr. Wainwright had no such choice. This does not

diminish the mitigating force of Porter—it underscores why such individualized

considerations and grants of mercy are necessary.

The evidence Mr. Wainwright presented to the state courts on his in utero

exposure to Agent Orange and the lifelong cognitive and neurobehavioral impacts

from which he suffered as a result completely alters the mitigation narrative

compared to what was available to Mr. Wainwright’s sentencing jury thirty years

ago. It provided a sympathetic explanation—one that was entirely out of Mr.

Wainwright’s control—that tied together many disparate threads in his life,

including

his delinquent

behavior as a

juvenile

and his cognitive and

neurobehavioral impairments as an adult.

But contrary to this Court’s well-espoused and repeatedly reaffirmed Eighth

Amendment principles, the circuit court did not engage with the constitutional

dimension of Mr. Wainwright’s claim. The circuit court’s denial rested on a

procedural bar and on the ground that the evidence would not have made a

difference to Mr. Wainwright’s proceedings. PCR8. at 451-54. The court failed

entirely to address the constitutional merits underlying the claim.

Given the circumstances of the circuit court’s denial, the Florida Supreme

Court had a duty to construe in Mr. Wainwright’s favor all allegations as to the

impact of the newly presented evidence on his sentencing outcome. See, e.g., Hunter

v. State, 29 So. 3d 256, 261 (Fla. 2008). But instead, in upholding the lower court’s

denial of relief, the Florida Supreme Court dismissed the Eighth Amendment

component of Mr. Wainwright’s claim in a single sentence as being “inadequately

briefed and without merit.” Wainwright, 2025 WL 1561151 at *7; App. A1 at 5,

n.16. 5 However, the lower court’s comments on the substantive merit of the

evidence Mr. Wainwright presented flew in the face of decades of this Court’s

Eighth Amendment jurisprudence on the importance of mitigating evidence to an

This finding was erroneous, as Mr. Wainwright put both the State and the

lower courts on notice as to the constitutional nature of his claim. See PCR8. at 153155 (briefing in the circuit court), 449 (circuit court ruling characterizing the claim

as arguing that “newly discovered evidence establishes his execution would violate

the Eighth Amendment.”).

individualized sentencing procedure.

First, the court downplayed the significance of the evidence because Mr.

Wainwright’s “intellectual, behavioral, and psychological issues have been an issue

throughout the postconviction proceedings. Thus, it is unlikely that one additional

cause to explain this set of behaviors would result in a life sentence.” Wainwright,

2025 WL 1561151 at *7; App. A1 at 5. Contrary to the Florida Supreme Court’s

statement, Mr. Wainwright was not previously able to pinpoint a unifying cause

that explained his cognitive and neurobehavioral deficits and their impacts on his

behavior. And such knowledge of a cause can be powerful mitigating evidence.

For instance, this Court explained in Atkins that symptoms of intellectual

disability “may create an unwarranted impression of lack of remorse . . . [and] as a

mitigating factor [they] can be a two-edged sword.” 536 U.S. at 320-21 (2002). Thus,

the cause of those symptoms was pivotal to properly contextualizing them—so much

so that this Court imposed a sweeping categorical protection for individuals whose

otherwise potential aggravating symptoms were caused by the mitigating condition

of intellectual disability. Id. Similarly, in Roper, the Court recognized that the

factors attributable to youth could unfairly be viewed as “aggravating rather than

mitigating”:

An unacceptable likelihood exists that the brutality or cold-blooded

nature of any particular crime would overpower mitigating arguments

based on youth as a matter of course, even where [the defendant’s]

objective immaturity, vulnerability, and lack of true depravity should

require a sentence less severe than death.

543 U.S. at 572-73. The Florida Supreme Court’s casual dismissal of Mr.

Wainwright’s evidence as “one additional cause” improperly downplayed its

significant mitigating impact in determining Mr. Wainwright’s personal culpability.

Similarly, the court rejected any potential mitigating value because of the

number of aggravating factors involved and in light of the trial court’s finding that

“the mitigating circumstances were outweighed by any single aggravating

circumstance.” Wainwright, 2025 WL 1561151 at *7; App. A1 at 5. But as this Court

held in Eddings, a sentencer must consider and carefully weigh all mitigating

evidence. Eddings v. Oklahoma, 455 U.S. 104, 113 (1982). The state court’s preemptive determination that the evidence Mr. Wainwright presented would not have

made any difference in light of the aggravation—without ever substantively

considering it for Eighth Amendment purposes—contravenes this Court’s precedent.

“This is not a case in which the new evidence ‘would barely have altered the

sentencing profile[.]’” Porter, 558 U.S. at 43 (quoting Strickland v. Washington, 466

U.S. 668, 700 (1984)). Had the trial court and Mr. Wainwright’s jury been fully

aware of the pervasive neurocognitive damage that took place before he even drew

his first breath, they would have been “able to place [Mr. Wainwright’s]

excruciating life history on the mitigating side of the scale.” Wiggins, 539 U.S. at

536, and the balance of aggravators and mitigators would have been profoundly

different. The new evidence “might not have made [Mr. Wainwright] any more

likeable…but it might well have helped” his jury contextualize otherwise adverse

facts, including the aggravating factors presented as well as any sensational

inculpatory statements testified to by witnesses against him. Sears v. Upton, 561

U.S. 945, 951 (2010). Ultimately, it would have helped his jury understand why,

despite his role in the offenses for which he stood convicted, his moral culpability

was diminished and he was deserving of mercy. The state courts’ failure to address

the constitutional dimensions of Mr. Wainwright’s claim conflicts with this Court’s

longstanding caselaw regarding the need for proportional sentencing and

individualized culpability assessments, and it necessitates this Court’s review.

III.

Without this Court’s intervention, Florida will unjustly foreclose any

meaningful opportunity for a condemned individual to demonstrate

that

his

unique

vulnerabilities

render

his

execution

unconstitutional.

The Eighth Amendment prohibits cruel and unusual punishment as a

categorical imperative. See, e.g., Ford v. Wainwright, 477 U.S. 399, 409-10 (1986)

(Eighth Amendment-based exemptions from execution not only protect deathsentenced individuals but also protect “the dignity of society itself from the barbarity

of exacting mindless vengeance[.]”). Thus, no state-law waiver provision may trump

this Court’s mandate that death-sentenced individuals “must have a fair opportunity

to show that the Constitution prohibits their execution[,]” Hall v. Florida, 572 U.S.

701, 724 (2014). Just as it would be unconstitutional for Florida to invoke timeliness

as justification to execute individuals subject to categorical exemptions or exclusions,

so too would it be unconstitutional to execute Mr. Wainwright on the grounds that

he failed to raise his claim at the “appropriate” procedural time. But this Court need

not make such a finding to provide unencumbered review of the constitutionality of

Mr. Wainwright’s death sentence, because the lower court’s imposition of a time bar,

Wainwright, 2025 WL 1561151 at *7; App. A1 at 4-5, was erroneous and inadequate

to prevent this Court’s review.

The Florida Supreme Court found that Mr. Wainwright’s claim was untimely

because the primary expert report he presented in support of his claim is “based on

preexisting studies dating years back[,] [a]nd while it points to shortcomings in the

investigation of the effects of toxins on the children of Vietnam veterans, it does not

suggest the information was unavailable.” Wainwright, 2025 WL 1561151 at *7;

App. A1 at 4-5. This ruling was flawed and, as one Justice of this Court has

observed in a similar context, raises troubling due process concerns.

The Florida Supreme Court’s timeliness analysis failed to grapple with the

necessarily incremental nature of scientific progress and consensus making. As Dr.

Cassano’s report explained, the most widely recognized reports on Agent Orange

effects on Vietnam Veterans deliberately did not explore the link between Agent

Orange exposure in Vietnam combat Veterans and cognitive and neurobehavioral

effects in their children. PCR8. at 233. Thus,

[t]he research regarding transgenerational effects is even newer and

more obscure to the general medical community . . . Epimutations and

transgenerational transmission were not established as modes of

transmission of disorders until the early 2020s, and . . . were not

published until 2023 to 2025. Therefore, the ability to integrate

these various studies into a cogent medical treatise is only

recently possible.

PCR8. at 232-33 (emphasis added). Thus, contrary to the lower court’s finding, this

information only recently started to become available. But although one study on

the phenomenon of transgenerational Agent Orange exposure was published in

2023, a single study does not make a consensus.

Scientific understanding does not change overnight. The nature of scientific

progress—and what makes such evidence so important and reliable—is inherently

incremental. As Justice Sotomayor recently observed, “because science evolves

slowly rather than in conclusive bursts, it can be hard to pinpoint when someone

should have discovered [newly-discrediting evidence] through the exercise of

reasonable diligence.” McCrory v. Alabama, 144 S. Ct. 2483, 2486 (2024) (statement

of Sotomayor, J., respecting the denial of certiorari) (internal quotation marks

omitted; alteration in original). Each new step builds on the previous one until,

gradually, a new understanding is reached that may lead to entirely different

conclusions than the starting point of the original research. Just because a new

scientific advancement appears in one scientific journal does not equate to it being

generally accepted in the medical community.

Here, while the general research about transgenerational exposure to Agent

Orange was taking place within the relevant scientific communities, that research

was neither widely disseminated nor had culminated to the point where it could be

used in any meaningful way. Under the Florida Supreme Court’s flawed

interpretation of timeliness, a litigant was apparently required to access

preliminary research and conclusions before they were disseminated beyond the

scientific community. Yet, by the time any given scientific principle has been

reliably established, the state courts would impose a time bar, pointing to the

research and review period that accompanies the scientific process as rendering the

evidence not newly discovered. 6 Such an approach raises “troubling” due process

concerns, id., 144 S. Ct. at 2483, and should not stand in the way of this Court’s

review. 7

CONCLUSION

The Court should grant the petition for a writ of certiorari and review the

decision of the Florida Supreme Court.

Respectfully submitted,

/s/ Terri L. Backhus

TERRI L. BACKHUS

Counsel of Record

Backhus & Izakowitz, P.A.

Florida courts routinely deny meritorious Eighth Amendment claims on these

grounds. See, e.g., Barwick v. State, 361 So. 3d 785 (Fla. 2023) (imposing a time-bar

on an Eighth Amendment claim); Melton v. State, 367 So. 3d 1175 (Fla. 2023)

(same); Hutchinson v. State, 2025 WL 1155717 (Fla. Apr. 21, 2025) (same).

In addition to the constitutionally flawed legal analysis, the Florida Supreme

Court’s timeliness ruling was factually erroneous as well. Mr. Wainwright had no

reason to raise a claim regarding the cognitive and neurobehavioral effects of Agent

Orange exposure through his father until he became aware that his father may

have been exposed to Agent Orange in the first place. That only happened recently,

after his sister developed breast cancer—also presumptive of Agent Orange

exposure under VA standards—and thought to mention the possibility of their

father’s exposure to Agent Orange to Mr. Wainwright. On this point the Florida

Supreme Court stated, without elaboration, that “we reject Wainwright’s

argument.” Wainwright, 2025 WL 1561151 at *7; App. A1 at 5.

13321 Lake George Ln.

Tampa, FL 33618

(813) 957-8237

terribackhus@gmail.com

Counsel for Petitioner

DATED: JUNE 5, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.