Reply Brief — Thomas Lee Gudinas, Petitioner v. Florida

No. 24-7457

IN THE

Supreme Court of the United States

_________________________________________________________________________

THOMAS LEE GUDINAS,

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, JUNE 24, 2025, AT 6:00 P.M.

ALI A. SHAKOOR*

FLORIDA BAR NO.: 0669830

EMAIL: SHAKOOR@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

CAPITAL CASE

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…………...………3

CONCLUSION............................................................................................................ 15

i

TABLE OF AUTHORITIES

Cases

Page(s)

Barefoot v. Estelle,

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

Cafeteria & Restaurant Workers v. McElroy,

367 U.S. 886 (1961)…………………………………………………………………….6

City of Cleburne, Tex. v. Cleburne Living Ctr.,

U.S. 432 (1985)………………………………………………………………………..10

Clubside, Inc. v. Valentin,

468 F.3d 144 (2d Cir. 2006)………………………………………………………….10

Connecticut Bd. of Pardons v. Dumschat,

452 U.S. 458 (1981)…………………………..........................................................5

Dep’t of Agriculture v. Moreno,

413 U.S. 528 (1973)…………………………………………………………………….9

Econ. Dev. Corp. of Dade Cnty., Inc. v. Stierheim,

782 F.2d 952 (11th Cir.1986)…………………………………………………………6

Eisenstadt v. Baird,

405 U.S. 438 (1972)……………………………………………………………………9

Espinosa v. Florida,

505 U.S. 1079 (1992)…………………………………………………………………13

Ford v. Wainwright,

477 U.S. 399 (1986)……………………………………………………………..….3, 5

Furman v. Georgia,

408 U.S. 238 (1972)………………………………………………………………11, 14

Gilbert v. Homar,

520 U.S. 924 (1997)…………………………………………………………………...6

Greenholtz v. Inmates of Neb. Penal and Correctional Complex,

442 U.S. 1 (1979)……………………………………………………………………...5

Gregg v. Georgia,

428 U.S. 153 (1976)...........................................................................................12

ii

Hall v. Florida,

502 U.S. 701(Fla. 2014)………………………………………………………………2

Marbury v. Madison,

5 U.S. 1 (1803)………………………………………………………………………….5

McLaughlin v. Florida,

379 U.S. 184 (1964)……………………………………………………………………9

Morrissey v. Brewer,

408 U.S. 471 (1972)……………………………………………………………………6

Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272 (1998)……………………………………………………………………5

Plyler v. Doe,

457 U.S. 202 (1982)…………………………………………………………………..10

Proffitt v. Florida,

428 U.S. 242 (1976)…………………………………………………………………..12

Roviero v. U.S.,

353 U.S. 53 (1957)…………………………………………………………………….14

Sioux City Bridge Co. v. Dakota County,

260 U.S. 441 (1923)…………………………………………………………………..10

Skinner v. Oklahoma,

316 U.S. 535 (1942)………………………………………………………………….. 9

Sunday Lake Iron Co. v. Township of Wakefield,

247 U.S. 350 (1918)…………………………………………………………………..10

U.S. v. Armstrong,

517 U.S. 456 (1996)……………………………………………………………………9

Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000)…………………………………………………………………..10

Wainwright v. Booker,

473 U.S. 935 (1985)……………………………………………………………………3

iii

Woodson v. North Carolina,

428 U.S. 280 (1976)……………………………………………………………………3

Constitutional Provisions:

U.S. Const. amend. VIII……………………………………………………………...2-4, 9-14

U.S. Const. amend. XIV……………………………………………………………..2, 4, 9-11

Other Authorities

28 U.S.C. § 2101(f), ……………………………………………………………………………3

Supreme Court Rule 23……………………………………………………………………….3

iv

PRELIMINARY STATEMENT

Petitioner, Thomas Lee Gudinas (“Gudinas”), offers the following Reply to the

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

and argument raised by Florida and will only address specific points. References to

the Appendix A/B/C are regarding those same attachments to the pending Petition

for a Writ of Certiorari (“Petition”). Gudinas expressly does not abandon any issue

not specifically replied to herein and relies upon his Petition in reply to any argument

or authority not specifically addressed.

REPLY REGARDING STAY

Gudinas’s execution is currently scheduled for June 24, 2025, only three days

from the date of the filing of this Reply. Filed contemporaneously with the BIO on

June 19, 2025, the State also submitted a Response to Application for Stay of

Execution. This Court should grant Gudinas a stay.

Florida’s compressed thirty-two-day death warrant litigation schedule is

completely insufficient to protect Gudinas’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

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Florida’s death warrant selection scheme, and refusal to provide Gudinas the

demanded records from the Executive Office of the Governor (“EOG”) to be a

sufficiently meritorious issue for certiorari. In the Petition at 17-18, Gudinas cited to

examples from other states that have a death warrant and execution date selection

process distinct from Florida’s where the Governor maintains exclusive control. The

jurisdictions represent various regions of the country. Florida is an extreme outlier

when it comes to the exclusive authority provided to the Governor. This Court should

intervene so that Florida is more aligned with the rest of the United States when it

comes to selecting a candidate for execution. The death penalty is the “gravest

sentence.” Hall v. Florida, 502 U.S. 701,724 (Fla. 2014).

Moreover, Gudinas also seeks necessary records, pursuant to his protections

under the Eighth Amendment and Fourteenth Amendment to the United States

Constitution. Petitioner provided a thorough and unimpeachable factual basis in

support of his colorable claims for relief. This Court is likely to reverse Florida’s

decision, as there is no basis for the obstruction and secrecy concerning Gudinas’s

access to records. Gudinas’s willingness to streamline his demand for the records to

address his constitutional concerns serves more specifically as another basis why this

Court is likely to remand the proceedings back to Florida.

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

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

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

injection at 6:00pm on June 24, 2025. This Court has recognized that “execution is

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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)). Gudinas’s unnecessarily expedited warrant schedule simply does

not honor our justice system’s acknowledgement that “death is different.”

The irreparable harm to Gudinas is clear. Wainwright v. Booker, 473 U.S. 935,

937 n.1 (1985) (Powell, J., concurring) (finding the requirement of irreparable harm

as “necessarily present in capital cases”). Additionally, the Florida Supreme Court’s

refusal to allow Gudinas records from the EOG is not just a matter of life and death

for Gudinas. The Eighth Amendment not only protects the individual from cruel and

unusual punishment, but it also safeguards the public’s interest in living in a humane

society. See, e.g., Ford, supra, at 409-10 (Eighth Amendment restriction protects not

only the individual, but “the dignity of society itself from the barbarity of exacting

mindless vengeance[.]”). Gudinas respectfully requests that this Court stay his

execution, pursuant to Supreme Court Rule 23 and 28 U.S.C. § 2101(f), pending

consideration of his petition for writ of certiorari.

RESPONSE TO STATE’S REASONS FOR DENYING THE WRIT

Gudinas prays for relief from this Court due to Florida’s unconstitutional death

warrant selection process as applied to Petitioner. The scheme is cloaked in secrecy

and shielded with obstruction. The BIO misstates the purpose of these proceedings

in presenting its “Questions Presented” by stating that the Florida Supreme Court

affirmed the denial of relief “purely based on state law.” BIO at i. Gudinas’s claims

were articulated based on a violation of federal law. State procedures are not

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permitted to violate the United States Constitution. Restated, the first question

presented before this Court is:

1. Whether Florida is violating Gudinas’s access to the courts and the ability to

pursue claims of relief based on the United States Constitution, in violation of

Gudinas’s rights under the Eighth and Fourteenth amendments to the United

States Constitution.

The BIO at 8-9 is simply incorrect in arguing that this Court does not have

jurisdiction over these issues. Petitioner fully litigated and preserved the claims

below, citing federal authority and the relevant constitutional amendments. Though

Gudinas was only allotted State procedures to request the necessary records, he at

all times sought vindication for his rights under the United States Constitution and

continues to do so here. Specifically, Gudinas has raised federal claims regarding the

circumstances pertaining to his suspicious, highly irregular, death warrant selection.

Gudinas is being foreclosed from litigating the constitutionality of his death warrant,

due to the unconstitutional obstruction and secrecy being used against him. This

Court has authority to review and intervene on actions by state courts that do not

comport with the U.S. Constitution. Florida does not even concede the Governor’s

alleged “unfettered discretion,” is reviewable by the highest court in the nation.

Considering these federal claims were raised and preserved at the state level, both in

the circuit court records demand, and timely briefed to the Florida Supreme Court

(“FSC”), with the proper federal citations, this Court’s interpretation of State actions

is essential and timely. It is the role of this Court to determine federal constitutional

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violations. Marbury v. Madison, 5 U.S. 1 (1803).

The BIO does not address the due process implications of the Governor’s

authority as it relates to Gudinas’s death warrant selection. This Court is guided on

the issue pursuant to Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 289 (1998).

The controlling plurality held:

A prisoner under a death sentence remains a living person and

consequently has an interest in his life. The question this case raises is

the issue of what process is constitutionally necessary to protect that

interest in the context of Ohio’s clemency procedures. It is clear that

“once society has validly convicted an individual of a crime and therefore

established its right to punish, the demands of due process are reduced

accordingly.” Ford v. Wainwright, 477 U.S. 399, 429, 106 S.Ct. 2595,

2612, 91 L.Ed.2d 335 (1986) (O’CONNOR, J., concurring in result in part

and dissenting in part). I do not, however, agree with the suggestion in

the principal opinion that, because clemency is committed to the

discretion of the executive, the Due Process Clause provides no

constitutional safeguards. THE CHIEF JUSTICE’s reasoning rests on

our decisions in Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458,

101 S.Ct. 2460, 69 L.Ed.2d 158 (1981), and Greenholtz v. Inmates of Neb.

Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d

668 (1979). In those cases, the Court found that an inmate seeking

commutation of a life sentence or discretionary parole had no protected

liberty interest in release from lawful confinement. When a person has

been fairly convicted and sentenced, his liberty interest, in being free

from such confinement, has been extinguished. But it is incorrect, as

Justice STEVENS’ dissent notes, to say that a prisoner has been

deprived of all interest in his life before his execution. See post, at 1254–

1255. Thus, although it is true that “pardon and commutation decisions

have not traditionally been the business of courts,” Dumschat, supra, at

464, 101 S.Ct. at 2464, and that the decision whether to grant clemency

is entrusted to the Governor under Ohio law, I believe that the Court of

Appeals correctly concluded that some minimal procedural safeguards

apply to clemency proceedings. Judicial intervention might, for example,

be warranted in the face of a scheme whereby a state official flipped a

coin to determine whether to grant clemency, or in a case where the

State arbitrarily denied a prisoner any access to its clemency process.

Id. at 289. The key phrase is some “minimal procedural safeguards.” Florida is not

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providing Gudinas with the minimal procedural standards based on the concerning

factual basis provided. Minimal safeguards would be satisfied if Gudinas were

provided access to the records from the EOG. The fact that Gudinas is willing to

further moderate the demand to address his specific constitutional concerns, also

shows that Petitioner is seeking only “minimal procedural safeguards.” To determine

if a violation of due process has occurred, we must first decide whether the

complaining party has been deprived of a constitutionally protected liberty or

property interest. Econ. Dev. Corp. of Dade Cnty., Inc. v. Stierheim, 782 F.2d 952,

953–54 (11th Cir.1986). Absent such a deprivation, there can be no denial of due

process. Id. Due process is a flexible concept. Gilbert v. Homar, 520 U.S. 924, 930

(1997)). “It is by now well established that “‘due process,’ unlike some legal rules, is

not a technical conception with a fixed content unrelated to time, place and

circumstances.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961).

“[D]ue process is flexible and calls for such procedural protections as the particular

situation demands.” ‘Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Id. Gudinas’s

liberty interests in his life and a fair clemency proceeding require this Court’s

intervention.

The BIO does not even address the facts giving rise to these claims. The BIO

does provide historical facts from the penalty phase for claims no longer being

litigated regarding Gudinas’s mitigation. BIO at 4-5. Similarly, in Appendix A of the

Petition, the FSC thoroughly addresses and gets deep into the facts of Gudinas’s

procedurally barred claims related to “evolving standards of decency.” See Appendix

6

A at 11-21. However, when it comes to the issues before this Court regarding

Gudinas’s access to public records, the FSC simply relies on the holdings from alleged

“precedent,” and refuses to engage with the troubling facts that gave rise to Gudinas’s

death warrant. See Appendix A at 26-33. The circuit court refused to thoroughly

address the case facts in denying Gudinas access to records. See Appendix B. The

failure of Florida to address the facts as applied to the law, is another reason this

Court should remand back to Florida for further proceedings consistent with the

United States Constitution.

The facts are concerning and unimpeachable. This Court must intervene. This

is a highly irregular case with potent constitutional concerns. Gudinas had his

clemency interview on April 4, 2025. The fact that Gudinas received a death warrant

while represented by Attorney Shakoor on May 23, 2025, less than two months after

his clemency interview, proves him to be an outlier compared to other death warrants.

Gudinas receiving a death warrant while being an Attorney Shakoor client is unique

and peculiar. Despite the number of capital postconviction attorneys practicing in

Florida, and the amount of post clemency warrant eligible men on death row,

Gudinas’s undersigned counsel under this warrant, Attorney Ali Shakoor, is

litigating his fourth separate death warrant since July 29, 2024; that is four separate

death warrants for the same specific undersigned counsel, in less than a year. 1 The

irregularity is further established by the fact that Gudinas’s counsel of record,

See Loran Cole, DC #335421 (Executed August 29, 2024); James Ford, DC #763722 (Executed

February 13, 2025); Glen Rogers, DC #124400 (Executed May 15, 2025) and Thomas Gudinas, DC

#379799 (Warrant Signed May 23, 2025).

1

7

Attorney Ali Shakoor, has been served by the executive branch on three death

warrant cases, of which Attorney Shakoor was never counsel of record. 2 The

requested records will establish to what extent these abnormal and concerning issues

violated Gudinas’s rights to a fundamentally fair clemency process.

This is about math and common sense. Alleged “discretion” can never be

absolute in this country. Again, Attorney Shakoor is one of fourteen attorneys that

work for Capital Collateral Regional Counsel-Middle Region. Capital Collateral

Regional Counsel-North Region has four lead attorneys and three second chairs.

Capital Collateral Regional Counsel-South Region has five lead qualified attorneys.

As of August 14, 2024, Florida’s Justice Administrative Commission website lists

thirty-five attorneys on the Capital Collateral Attorney Registry. Based on this data,

Attorney Shakoor is one of sixty-one attorneys practicing capital postconviction law

in this state. The Florida Department of Corrections website currently lists 271

people on Florida’s death row.

The specific number of people who have gone through clemency is unknown

and was one of the subjects of Gudinas’s records demand. However, considering the

number of death eligible inmates and practicing capital collateral attorneys, it defies

statistical probability for Thomas Gudinas to be Attorney Shakoor’s fourth death

warrant in less than one year. Additional scrutiny is required. The obstruction and

secrecy being imposed on Gudinas is oppressive to his pursuit for justice. The only

means for Gudinas to challenge the constitutionality of his death warrant selection

2 See Michael Tanzi, DC #K04389 (Served on March 10, 2025); Jeffrey Glenn Hutchinson, DC #124849

(Served on March 31, 2025); Anthony Floyd Wainwright, DC #123847 (Served on May 9, 2025).

8

is to access the records being hidden by the EOG. That means the judiciary must

command the EOG to comply with constitutional protections.

Besides the violation of Gudinas’s due process rights under the Fourteenth

Amendment, he has also raised colorable claims regarding equal protection

violations. Gudinas specifically addressed equal protection concerns at the hearing in

Florida. See Appendix C at 14-16. Florida is not constitutionally permitted to treat

Gudinas disparately based any characteristics of his attorney, nor Petitioner’s own

constitutionally protected qualities. This Court should look to the law regarding

selective prosecutions, in that the requirements for a selective-prosecution claim

draw on “ordinary equal protection standards.” The claimant must demonstrate that

the federal prosecutorial policy “had a discriminatory effect and that it was motivated

by a discriminatory purpose.” See U.S. v. Armstrong, 517 U.S. 456, 465 (1996).

Distinctions in state criminal laws that impinge upon fundamental rights must be

strictly scrutinized. See, e.g., Skinner v. Oklahoma, 316 U.S. 535, 541 (1942);

McLaughlin v. Florida, 379 U.S. 184, 192 (1964); Eisenstadt v. Baird, 405 U.S. 438,

447 (1972). Capital defendants have a fundamental right to due process and equal

protection of the laws. When a state draws a distinction between those capital

defendants who will receive the benefit of a constitutionally valid due process

procedure pursuant to the Eighth Amendment, and those who will not, the state’s

justification for the distinction must satisfy strict scrutiny. The distinction made by

the state courts in Florida cannot meet that standard. See Dep’t of Agriculture v.

Moreno, 413 U.S. 528, 538 (1973).

9

Regarding the status of a class of one, this Court has stated:

The Equal Protection Clause of the Fourteenth Amendment commands

that no State shall “deny to any person within its jurisdiction the equal

protection of the laws,” which is essentially a direction that all persons

similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202,

216, 102 S. Ct. 2382, 2394, 72 L.Ed.2d 786 (1982).”

City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).

And also:

Our cases have recognized successful equal protection claims brought by

a “class of one,” where the plaintiff alleges that she has been

intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment. See Sioux City

Bridge Co. v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L. Ed. 340

(1923); Allegheny Pittsburgh Coal Co. v. Commission of Webster Cty.,

488 U.S. 336, 109 S. Ct. 633, 102 L.Ed.2d 688 (1989). In so doing, we

have explained that “‘[t]he purpose of the equal protection clause of the

Fourteenth Amendment is to secure every person within the State’s

jurisdiction against intentional and arbitrary discrimination, whether

occasioned by express terms of a statute or by its improper execution

through duly constituted agents.’” Sioux City Bridge Co., supra, at 445,

43 S. Ct. 190 (quoting Sunday Lake Iron Co. v. Township of Wakefield,

247 U.S. 350, 352, 38 S. Ct. 495, 62 L. Ed. 1154 (1918)).

Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). See also Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (requiring an “extremely high degree of

similarity” between the plaintiff and those similarly situated).

Florida courts have similarly violated Gudinas’s equal protection rights.

Gudinas is possibly being treated differently from similarly situated capital litigants

under a death warrant, based on who represents him. The unequal treatment

Gudinas would receive if he were executed would further violate Gudinas’s rights to

equal protection and fundamental fairness.

The Eighth Amendment demands more than what Florida has allowed for

10

Gudinas. There are no articulated limits to the executive discretion, there are no

guidelines for the selection process, and the entire process is cloaked in secrecy.

Furman v. Georgia, 408 U.S. 238, 309-10 (1972) (Stewart, J., concurring) (“These

death sentences are cruel and unusual in the same way that being struck by lightning

is cruel and unusual. For, of all the people convicted of rapes and murders . . . many

just as reprehensible as these, the petitioners are among a capriciously selected

random handful upon whom the sentence of death has in fact been imposed.”).

The Furman Court held that the “Eighth and Fourteenth Amendments cannot

tolerate the infliction of a sentence of death under legal systems that permit this

unique penalty to be so wantonly and freakishly imposed.” Id. at 310 (Stewart, J.,

concurring). Death penalty procedures which are “little more than a lottery system”

were prohibited as they were held to violate the protection afforded by the Eighth

Amendment. Id. at 293 (Brennan, J., concurring). The infliction of the death penalty

is cruel and unusual and, hence, forbidden by the Eighth Amendment when its

imposition is akin to being struck by lightning.” Id. at 309 (Stewart, J., concurring).

The execution of a death sentence on a “capriciously selected” inmate is prohibited by

the Eighth Amendment. Id. at 309-10 (Stewart, J., concurring). This Court ruled the

relevant capital statutes unconstitutional, stating that the laws contained no

standards to govern who receives the death penalty. Tellingly, this Court, referring

to standards applicable to the judge and jury whose determinations are subject to

appellate review, stated, “[p]eople live or die, dependent on the whim of one man or

of 12.” Id. at 253 (Douglas, J., concurring).

11

This Court subsequently held, in Gregg v. Georgia, 428 U.S. 153 (1976), that

the imposition of the death penalty could be constitutional, provided that satisfactory

procedures were in place to reduce the risk of arbitrary infliction of it. Similarly, in

considering Florida’s death penalty scheme, the United States Supreme Court relied

on the existence of safeguards against the imposition of the death penalty in an

arbitrary manner in upholding Florida’s scheme. Proffitt v. Florida, 428 U.S. 242

(1976). The existence of meaningful protections is an irreducible requirement for a

death penalty scheme to be constitutional. The absence of meaningful protections

risks the arbitrary imposition of the death penalty, and places such a deficient scheme

at odds with the Eighth Amendment.

In Florida, the Governor has the absolute discretion and unconstrained power

to schedule executions. The decision by a Florida governor to sign a death warrant is

just as necessary as the sentencing judge’s decision to sign his name to a document

imposing a sentence of death. In Florida, no death sentence can be imposed unless

the judge signs the sentencing order imposing a sentence of death. Similarly, no

individual who receives a sentence of death will in fact be executed until the Governor

exercises his discretion to sign a death warrant. There are absolutely no governing

standards as to how the Governor should exercise his warrant signing power. This

process is veiled in secrecy, with no opportunity for the condemned to be heard.

The Governor’s absolute discretion to decide who lives and who dies must be

compared with the standards and limits placed upon a sentencing judge’s decision to

impose a death sentence. The Eighth Amendment requires there to be a principled

12

way to distinguish between who is executed by a state and who is not. It is this

constitutional principle that has required the sentencing judge to specifically address

what aggravating and mitigating circumstances are present. It is because of the

Eighth Amendment that Florida requires the sentencing judge to weigh the

aggravating circumstances against the mitigating circumstances when deciding

whether to impose a sentence of death.

In 1992, this Court found that because the jury’s role in making a sentencing

recommendation was an essential step in the Florida capital scheme, the jury should

be viewed as a co-sentencer and its decision-making process should be subject to the

same Eighth Amendment constraints that had been imposed upon the sentencing

judge in a capital case in Florida. Espinosa v. Florida, 505 U.S. 1079, 1082 (1992).

There is really no principled way to distinguish between the individual who signs a

document entitled “the sentence” which imposes a death sentence, a necessary step

before an individual in Florida can be executed, and the individual who signs a

document entitled “death warrant” which is an equally necessary step before an

individual in Florida can be executed. For the same reasons that this Court

determined that the Florida penalty phase jury’s recommendation was just as much

an essential component to the death penalty scheme as the judge’s decision to impose

a death sentence and found the Eighth Amendment constraints applicable to the

penalty phase jury, the Governor’s absolute power to sign or not sign a death warrant

must be subject to the Eighth Amendment. Without the Governor’s signature upon a

death warrant, an individual housed on Florida’s death row will never be executed.

13

Currently without any meaningful standards constraining the Governor’s otherwise

absolute discretion, the Florida capital sentencing scheme violates the Eighth

Amendment principles set forth in Furman.

If this Court were not inclined to do a holistic review of Florida’s death warrant

selection scheme—and it should—this Court can also narrowly decide these

proceedings for Gudinas. Gudinas should at a minimum be granted select specific

records from the EOG, that directly pertain to his highly suspicious selection for

death. In Florida Gudinas even offered a narrowly tailored in camera review process,

to protect his rights against the protective needs of the executive branch. This Court

may also take guidance in protective measures provided in the criminal context,

measuring the rights of the government with the vulnerable defendant. Roviero v.

U.S., 353 U.S. 53 (1957).

Petitioner’s issue is timely and ripe for this Court’s review. Gudinas did not

have a claim regarding the EOG until his highly suspicious and constitutionally

concerning death warrant. Gudinas is severely mentally ill. See Appendix D. The FSC

and Respondents spent a great deal of time explaining away the significance of the

mental mitigation in Gudinas’s case. And indeed, Florida’s oppressive procedural bar

and “conformity clause” foreclose Gudinas from asking this court to consider the

expansion of policy considerations concerning evolving the standards of decency;

particularly so under the exigencies of litigation started by the warrant being signed

the weekend before Memorial Day. For the severely mentally ill Thomas Gudinas to

be selected for a death warrant at all, under these peculiar and constitutionally

14

concerning circumstances, this Court must intervene. Florida’s Governor is not above

the law. The time has come for judicial intervention to show that the Governor’s

discretion in signing death warrants is not “unfettered,” and the office is not immune

from following the United States Constitution. Whatever discretion the Governor has

he must exercise constitutionally. Relief is proper. This Court should grant the

petition for a writ of certiorari.

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

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

June 21, 2025

Dated

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