Opposition Brief — Kayle B. Bates, Petitioner v. Florida, et al.
Supreme Court briefAug 18, 2025
Ask Donna
What actually matters in this document.
Text
No. 25-5370
In The
Supreme Court of the United States
KAYLE BARRINGTON BATES
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF IN OPPOSITION
EXECUTION SCHEDULED FOR AUGUST 19, 2025, AT 6:00 P.M.
JAMES UTHMEIER
Attorney General of Florida
CARLA SUZANNE BECHARD*
Associate Deputy Attorney General
Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
3507 E. Frontage Rd., Ste. 200
Tampa, Florida 33607
Telephone: (813) 287-7900
Scott.browne@myfloridalegal.com
capapp@myfloridalegal.com
JASON W. RODRIGUEZ
Senior Assistant Attorney General
COUNSEL FOR RESPONDENT
Capital Case
QUESTIONS PRESENTED
Over four decades ago in June 1982, Kayle Bates robbed, attempted to rape,
and brutally murdered J.R.W. by stabbing her twice with a four-inch knife. Both the
Florida Supreme Court and Eleventh Circuit described the evidence against him as
overwhelming. Bates received a death sentence that finalized in 2000. Florida
Governor Ron DeSantis signed a death warrant for Bates, and his execution is
scheduled for August 19, 2025. Post-warrant, Bates challenged his two-and-a-halfdecade-long finalized judgment through Florida’s postconviction system. He also
unsuccessfully demanded lethal-injection-related records despite previously raising
a meritless lethal-injection challenge over a decade ago.
The Florida Supreme Court rejected Bates’ substantive claims as untimely,
procedurally barred, and meritless. It also affirmed the denial of access to records on
the merits. This Court therefore lacks jurisdiction over the first two of the following
three questions presented and should decline jurisdiction over the third:
I.
Does the Eighth Amendment invalidate capital sentences imposed without
consideration of substantial mitigation never presented in a capital penalty
phase?
II.
Did telling Bates’ 1995 penalty phase jury its only recommendation options
were life without parole eligibility for twenty-five years or death violate the
Fourteenth Amendment’s due process clause and Eighth Amendment?
III.
Does the Fourteenth Amendment’s due process clause permit a state to require
a defendant to plead a facially valid lethal injection claim, narrow his requests
so they are not unduly broad or burdensome, and show good cause for failing
to request lethal injection records prior to a death warrant before granting
post-death-warrant demands for records?
i
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS................................................................................................ ii
TABLE OF CITATIONS AND AUTHORITIES .......................................................... iii
OPINION BELOW......................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL PROVISIONS INVOLVED ........................................................ 6
STATEMENT OF THE CASE AND FACTS ................................................................ 6
REASONS FOR DENYING THE WRIT ..................................................................... 14
I. ........................................................................................................................ 22
Does the Eighth Amendment invalidate capital sentences
imposed without consideration of substantial mitigation never
presented in a capital penalty phase?
........................................................................................................................... 22
II. ...................................................................................................................... 29
Did telling Bates’ 1995 penalty phase jury its only recommendation
options were life without parole eligibility for twenty-five years or death
violate the Fourteenth Amendment’s due process clause and Eighth
Amendment ....................................................................................................... 29
CONCLUSION ............................................................................................................ 33
ii
TABLE OF CITATIONS AND AUTHORITIES
Page(s)
Cases
Bates v. Florida,
484 U.S. 873 (1987) ................................................................................................ 7, 9
Bates v. Florida,
507 U.S. 992 (1993) .................................................................................................... 7
Bates v. Florida,
531 U.S. 835 (2000) ........................................................................................ 7, 12, 23
Bates v. Florida,
586 U.S. 845 (2018) .................................................................................................... 7
Bates v. Florida,
2025 WL 1787777 (U.S. June 30, 2025) ..................................................................... 7
Bates v. Jones,
577 U.S. 839 (2015) .................................................................................. 7, 12, 13, 30
Bates v. Sec’y, Fla. Dep’t of Corr.,
768 F.3d 1278 (11th Cir. 2014) ..................................................... 8, 12, 23, 25, 28, 29
Bates v. State,
3 So. 3d 1091 (Fla. 2009) .................................................................. 10, 12, 21, 22, 33
Bates v. State,
218 So. 3d 426 (Fla. 2017) .......................................................................................... 8
Bates v. State,
465 So. 2d 490 (Fla. 1985) .......................................................................................... 9
Bates v. State,
506 So. 2d 1033 (Fla. 1987) ........................................................................................ 9
Bates v. State,
750 So. 2d 6 (Fla. 1999) .............................................................. 10, 11, 14, 21, 25, 26
Bates v. State,
2025 WL 2319001 (Fla. Aug. 12, 2025) .......................... 1, 2, 3, 7, 8, 9, 13, 17, 22, 23
Beard v. Banks,
542 U.S. 406 (2004) ............................................................................................. 19, 20
Blystone v. Pennsylvania,
494 U.S. 299 (1990) ............................................................................................. 17, 18
Bucklew v. Precythe,
587 U.S. 119 (2019) ....................................................................................... 16, 33, 34
Calderon v. Thompson,
523 U.S. 538 (1998) ................................................................................................... 15
Caspari v. Bohlen,
510 U.S. 383 (1994) ................................................................................................... 20
iii
City of Grants Pass, Oregon v. Johnson,
603 U.S. 520 (2024) ................................................................................................... 18
Coleman v. Balkcom,
, 451 U.S. 949, 956 (1981) ......................................................................................... 16
Cole v. State,
392 So. 3d 1054 (Fla. 2023) ...................................................................................... 34
Dailey v. State,
283 So. 3d 782 (Fla. 2019) ........................................................................................ 34
Durley v. Mayo,
351 U.S. 277 (1956) ................................................................................................. 1, 5
Edwards v. Vannoy,
593 U.S. 255,* n.3 (2021) .................................................................................... 20, 29
Exxon Corp. v. Wisconsin Dep’t of Revenue,
447 U.S. 207 (1980) ..................................................................................................... 6
Glossip v. Oklahoma,
145 S. Ct. 612 (2025) ................................................................................................... 1
Gomez v. Singletary,
733 So. 2d 499 (Fla. 1998) ........................................................................................ 25
Graham v. Collins,
506 U.S. 461 (1993) ................................................................................................... 20
Gray v. Netherland,
518 U.S. 152 (1996) ............................................................................................. 31, 32
Gwong v. Singletary,
683 So. 2d 109, n.2 (Fla. 1996) ................................................................................. 25
Herb v. Pitcairn,
324 U.S. 117 (1945) ................................................................................................... 22
Illinois v. Fisher,
540 U.S. 544 (2004) ................................................................................................... 25
In re Amends. to Fla. Rule of Crim. Proc. 3.852,
163 So. 3d 476 (Fla. 2015) ........................................................................................ 33
Jones v. Comm’r, Georgia Dep’t of Corr.,
812 F.3d 923 (11th Cir. 2016) .................................................................................. 32
Jones v. Hendrix,
599 U.S. 465 (2023) ..................................................................................................... 4
Kelly v. South Carolina,
534 U.S. 246 (2002) ................................................................................................... 26
Lambrix v. Sec’y, Fla. Dep’t of Corr.,
851 F.3d 1158 (11th Cir. 2017) ................................................................................. 15
Lawrence v. Florida,
549 U.S. 327 (2007) ................................................................................................... 29
Lewis v. Casey,
518 U.S. 343 (1996) ................................................................................................... 32
Lynch v. Arizona,
iv
578 U.S. 613 (2016) ................................................................................................... 26
Michigan v. Long,
463 U.S. 1032 (1983) ................................................................................................... 1
Middlebrooks v. Parker,
22 F.4th 621 (6th Cir. 2022) ..................................................................................... 33
N.C.P. Mktg. Group, Inc. v. BG Star Productions, Inc.,
556 U.S. 1145 (2009) ................................................................................................. 24
O’Dell v. Netherland,
521 U.S. 151 (1997) ............................................................................................. 27, 29
Ramdass v. Angelone,
530 U.S. 156 (2000) ....................................................................................... 23, 26, 28
Rice v. Sioux City Mem’l Park Cemetery,
349 U.S. 70 (1955) ..................................................................................................... 22
Rocha v. Thaler,
626 F.3d 815 (5th Cir. 2010) ....................................................................................... 5
Rogers v. State,
409 So. 3d 1257 (Fla. 2025) ...................................................................................... 34
Saye v. Williams,
452 U.S. 926 (1981) ................................................................................................... 27
Silagy v. Peters,
905 F.2d 986 (7th Cir. 1990) ..................................................................................... 19
Simmons v. South Carolina,
512 U.S. 154 (1994) ............................................................................................. 26, 29
Stewart v. LaGrand,
526 U.S. 115 (1999) ..................................................................................................... 4
Tanzi v. State,
407 So. 3d 385 (Fla. 2025) ........................................................................................ 34
United States v. Roof,
10 F.4th 314 (4th Cir. 2021) ..................................................................................... 18
Walker v. Martin,
562 U.S. 307 (2011) ..................................................................................................... 2
Wellons v. Comm’r, Ga. Dep’t of Corr.,
754 F.3d 1260 (11th Cir. 2014) ................................................................................. 32
Whitaker v. Collier,
862 F.3d 490 (5th Cir. 2017) ..................................................................................... 32
White v. State,
616 So. 2d 21 (Fla. 1993) .......................................................................................... 28
Zakrzewski v. State,
2025 WL 2047404 (Fla. July 22, 2025) .................................................................... 31
Statutes
28 U.S.C. § 1257(a) ........................................................................................................ 1
v
28 U.S.C. § 2254 ..................................................................................................... 12, 29
Rules
Federal Rule of Civil Procedure 8 ............................................................................... 32
Fla. R. Crim. P. 3.851(d)(2) ........................................................................................... 3
Fla. R. Crim. P. 3.852(i)(2)(A)-(D) ............................................................................... 31
Florida Rule of Criminal Procedure 3.851(d) ............................................................... 2
Florida Rule of Criminal Procedure 3.852 ...................................................... 30, 32, 34
vi
OPINION BELOW
The Florida Supreme Court’s decision petitioned for review appears as Bates
v. State, No. SC2025-1127, 2025 WL 2319001, at *1 (Fla. Aug. 12, 2025).
JURISDICTION
This Court lacks jurisdiction over Bates’ first two questions presented because
each rests on an adequate and independent state law ground. Certiorari jurisdiction
extends to final “judgments” issued by “the highest court of a State” when a federal
question is at issue. See 28 U.S.C. § 1257(a). But this Court lacks jurisdiction where
the state court below relied on independent and adequate state-law grounds to bar
review. Glossip v. Oklahoma, 145 S. Ct. 612, 624 (2025) (“In the context of direct
review of a state court judgment, the independent and adequate state ground doctrine
is jurisdictional.”); Michigan v. Long, 463 U.S. 1032, 1040 (1983) (“If the state court
decision indicates clearly and expressly that it is alternatively based on bona fide
separate, adequate, and independent grounds, we, of course, will not undertake to
review the decision.”).
This Court has explicitly recognized Florida’s re-litigation bar is an adequate
state-law ground that deprives this Court of jurisdiction. Durley v. Mayo, 351 U.S.
277, 281, 283–285 (1956) (dismissing for lack of jurisdiction where the Florida
Supreme Court’s decision below “might have rested”1 on res judicata). It has also
1 This Court’s jurisdictional test has changed since Durley. See Long, 463 U.S. at
1042. But that makes no difference here since this Court need not guess whether the
Florida Supreme Court relied on a re-litigation bar. It explicitly did so.
1
recognized that time-bars are independent and adequate state-law grounds
precluding review. See Walker v. Martin, 562 U.S. 307, 315 (2011).
The Florida Supreme Court rejected the issues underlying Bates’ first two
questions presented on pure state law timeliness grounds without mentioning either
federal law or manifest injustice. In rejecting the arguments Bates presents to this
Court under his first question presented, the Florida Supreme Court explicitly
applied a pure state-law time-bar under Florida Rule of Criminal Procedure 3.851(d).
Bates, 2025 WL 2319001, at *3 (“Bates’ claim is untimely. He was resentenced in
1995, and he could have raised these arguments in the thirty years since. He has not
offered any persuasive reason why this evidence is newly discovered or timely now.”).
Separately, the court expressly rejected the issues undergirding Bates’ second
question presented as untimely. Id. at 4 n.5 (“This argument is also untimely
under rule 3.851(d).”).
These time-bars are indisputably independent and adequate state law grounds
expressly relied on by the Florida Supreme Court to reject the first two questions
Bates now presents to this Court. It is hard to envision a more “plain statement” of
reliance on independent state law that deprives this Court of jurisdiction than what
the Florida Supreme Court provided below.
Bates, however, resists this clear conclusion with a non-sequitur. He argues
that his invocation of manifest injustice and the Florida Supreme Court’s rejection of
that argument means the court below did not in fact rely on independent and
adequate state law grounds to reject his claims. His blithe dismissal of the Florida
2
Supreme Court’s plain statement that it relied on state-law rules requiring capital
defendants to timely assert their claims has at least two obvious problems.
First and foremost, Bates’ argument contains a glaring factual error. The
Florida Supreme Court’s manifest-injustice analysis only pertained to a separate
procedural bar and not the time-bar. Below, the court relied on both a state time-bar
and a state procedural bar to preclude merits review of Bates’ first two questions
presented. See Bates, 2025 WL 2319001, at *3–4 & n.5. But it only discussed manifest
injustice—the crux of Bates jurisdictional argument—in explaining why imposing the
procedural bar precluding re-litigation of claims that could have been, or were,
presented before was proper. Id. Contrary to Bates’ assertion, the Florida Supreme
Court did not even mention manifest injustice while imposing time-bars to Bates’ first
two questions presented. Id. at *3, *4 n.5.
That is likely because manifest injustice is only an exception to re-litigation
bars, not time limits, in Florida. See id. at *3 (explaining postconviction claims must
generally be filed within a year “after the judgment and sentence” become final, there
is “a narrow exception to this time bar for claims predicated on newly discovered
evidence,” but even then the claims must be filed within a “year of the date the
evidence could have been discovered”); see also Fla. R. Crim. P. 3.851(d)(2) (“No
motion may be filed or considered under this rule if filed beyond the time limitation
provided in subdivision (d)(1) unless it alleges” one of three exceptions, none of which
are manifest injustice).
The Florida Supreme Court’s imposition of two pure state-law time bars to the
3
issues undergirding Bates’ first two questions presented deprives this Court of
jurisdiction over those questions. There is no manifest injustice exception to the
Florida law requirement that capital defendants timely raise their claims or not at
all. Nor is there any federal obligation for Florida to allow capital defendants to raise
untimely claims once a death warrant is signed. See Jones v. Hendrix, 599 U.S. 465,
482–87 (2023) (holding there is no constitutional right to two rounds of postconviction
review even for claims of legal innocence).
Bates’ manifest injustice argument in support of jurisdiction is thus a complete
non-sequitur because the state-law time-bars imposed below did not hinge on any
manifest injustice discussion. Even under Bates’ argument, this Court lacks
jurisdiction because the time-bars are independent and adequate state law grounds
regardless of whether the procedural bars are too.
However, Bates’ jurisdictional argument is wrong. Separate from the timebars, the state-law procedural bars invoked below also deprive this Court of
jurisdiction. Absent an argument that a state-law re-litigation bar is invalid under
federal law,2 what constitutes a manifest injustice sufficient to overcome a state-law
2 None of Bates’ questions presented raise the issue of whether a state may, under
the Federal Constitution, impose time or procedural bars in capital cases. See Sup.
Ct. R. 14 (“Only the questions set out in the petition, or fairly included therein, will
be considered by the Court.”) That omission is probably intentional because an
argument that state courts cannot impose re-litigation or time bars to successive
postconviction claims is squarely foreclosed by this Court’s precedent. See Jones v.
Hendrix, 599 U.S. 465, 482–87 (2023); Stewart v. LaGrand, 526 U.S. 115, 118–120
(1999) (holding a capital defendant’s claim that execution by lethal gas violated the
Eighth Amendment was waived and procedurally defaulted). Notably, in LaGrand,
this Court reversed the Ninth Circuit, which had held “Eighth Amendment
4
re-litigation bar is also an issue of state law. See Durley v. Mayo, 351 U.S. 277, 283–
85 (1956) (rejecting the argument that the Florida Supreme Court was required to
read an “ends of justice” exception into a statutory bar on re-litigation and holding
the proper application of a good cause exception to permit re-litigation was an issue
of state law).
Florida’s bar on re-litigation of postconviction issues that could have been, or
were, raised in prior proceedings is a long-settled state-law bar to this Court’s review.
Id. at 284. When the Florida Supreme Court has definitively and negatively answered
“whether, under Florida law,” Bates “was or was not free to raise” the issues “he
attempted to raise” below because they “at least could have been raised in prior
proceedings,” this Court lacks jurisdiction under Durley. Id. The fact that potential
exceptions to that bar exist does not provide this Court with jurisdiction where the
Florida Supreme Court held, as a matter of state law, those exceptions do not apply.
See id. See also Rocha v. Thaler, 626 F.3d 815, 826 n.44 (5th Cir. 2010) (“Many state
high courts review otherwise procedurally defaulted habeas claims for plain error,
fundamental error, a fundamental miscarriage of justice, or manifest injustice. . . .
This kind of review does not constitute a decision on the merits of the underlying
constitutional claim. A state high court can conclude that there was no plain error or
miscarriage of justice without concluding that the underlying claim for habeas relief
protections may not be waived, at least in the area of capital punishment.” Id.
(quoting LaGrand v. Stewart, 173 F.3d 1144, 1148 (9th Cir. 1999).)
5
is without merit.”).
At bottom, Bates’ fundamental premise is wrong. The mere fact that there is a
potential manifest injustice exception to a procedural bar, which the Florida Supreme
Court held he failed to meet, does not mean the rule is automatically intertwined
with federal law. Whether Bates met the state-law exception to a state-law relitigation bar is a question of state law where the Florida Supreme Court is the “final
arbiter.” Cf. Exxon Corp. v. Wisconsin Dep’t of Revenue, 447 U.S. 207, 226 n.9 (1980).
Evaluating whether manifest injustice occurred under state law does not provide this
Court with jurisdiction.
This Court lacks jurisdiction over Bates’ first two questions presented. The
expressly imposed state-law time-bars to those questions deprive this Court of
jurisdiction even under Bates’ argument because the Florida Supreme Court did not
analyze or impose any manifest injustice exception to the time-bars. And the
explicitly imposed state-law re-litigation bar to the issues undergirding Bates’ first
two questions presented deprive this Court of jurisdiction under Durley. This Court
should therefore deny Bates’ petition for lack of jurisdiction.
CONSTITUTIONAL PROVISIONS INVOLVED
The State accepts the Petitioner’s statement of the constitutional provisions
involved.
STATEMENT OF THE CASE AND FACTS
“Over four decades ago, Kayle Barrington Bates robbed, attempted to rape, and
brutally murdered” J.R.W. by stabbing her twice with a four-inch knife. Bates v. State,
6
No. SC2025-1127, 2025 WL 2319001, at *1 (Fla. Aug. 12, 2025). This case has been
thoroughly litigated and re-litigated for the past four decades. Bates v. State, No.
SC2025-1127, 2025 WL 2319001, at *2–3 (Fla. Aug. 12, 2025). That includes six prior
unsuccessful requests for this Court’s review.3
The Murder and Overwhelming Evidence
“In June 1982, Bates, a delivery driver, stopped at the insurance office where”
J.R.W. worked and briefly spoke with her before leaving. Bates, 2025 WL 2319001, at
*1. J.R.W. left the office to have lunch with her husband and, while she was gone,
Bates “hid his truck in the woods” and “broke into the building. There he waited for”
J.R.W to come back. Id. J.R.W. found the phone ringing when she returned and, as
she answered it, she saw Bates. Id. “Startled and terrified, she let out a ‘bone-chilling’
scream. Bates attacked her, but” she “fought back. Despite her best efforts, Bates
overpowered” J.R.W. “and forced her into the woods behind the office.” Id.
In the woods, “Bates brutally beat her, inflicting over thirty contusions,
bruises, abrasions, and lacerations. He ripped off her wedding ring, causing serious
injury to her finger. He attempted to rape her. He strangled her. And while” J.R.W.
“was still alive, Bates stabbed her twice in the chest. She died from the totality of her
wounds a few minutes later.” Id.
3 Bates v. Florida, 484 U.S. 873 (1987); Bates v. Florida, 507 U.S. 992 (1993); Bates v.
Florida, 531 U.S. 835 (2000); Bates v. Jones, 577 U.S. 839 (2015); Bates v. Florida,
586 U.S. 845 (2018); Bates v. Florida, No. 24-6875, 2025 WL 1787777, at *1 (U.S.
June 30, 2025).
7
Law enforcement apprehended Bates near the office “about twenty minutes
after the deadly attack began. Law enforcement found” J.R.W.’s “ring in Bates’ pocket
despite his efforts to conceal it. Bates admitted to carrying” J.R.W. “out of the office
to the woods and engaging in one-sided sexual conduct with her. Bates also told his
wife that he had killed a woman.” Id.
“The evidence of guilt presented against Bates during the three-day trial was
overwhelming” and included:
Bates was arrested at the scene of the crime just minutes after the
victim’s death. He had the victim’s diamond ring in his pocket, and he
tried to conceal it from law enforcement officers. A watch pin consistent
with Bates’ watch was found inside the victim’s office, and Bates’ watch
was missing a watch pin. Footprints consistent with Bates’ shoes were
found behind the State Farm office building. Bates’ hat was found near
the victim’s body. Two green fibers were found on the victim’s clothing—
one on her blouse and one on her skirt—that were consistent with the
material that Bates’ pants were made of. A knife case was found near
the victim’s body, and that case was identified by various witnesses as
being the exact type that Bates wore. The victim’s two fatal stab wounds
were consistent with the type of buck knife that Bates carried in that
case. The consistency between the stab wounds and Bates’ knife was
striking; the wounds were four inches deep, and Bates’ knife was four
inches long; the width of the wounds was consistent with the width of
Bates’ knife; and as was testified to at the resentencing, there were
abrasions at the bottom of the wound that were consistent with marks
that Bates’ knife would have made. Bates’ statements to investigators
and at his trial also placed him either at the scene of the crime or directly
involved in the victim’s murder. Bates stated during a telephone call to
his wife after his arrest that he killed a woman.
Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1284–85 (11th Cir. 2014); Bates v.
State, 218 So. 3d 426, 427–28 (Fla. 2017) (describing the evidence against Bates as
“overwhelming”).
The jury convicted Bates of first-degree murder and other crimes, and a judge
8
sentenced him to death. Bates v. State, 465 So. 2d 490, 491 (Fla. 1985).
Initial Direct Appeals and Certiorari Petition
The Florida Supreme Court affirmed Bates’ convictions and non-capital
sentences but struck two aggravators and remanded for reweighing of aggravation
and mitigation. Bates, 465 So. 2d at 492–93. On remand, the court permitted Bates
to introduce more mitigation, reweighed the aggravation and mitigation, and again
imposed death. Bates v. State, 506 So. 2d 1033, 1034–35 (Fla. 1987). The Florida
Supreme Court affirmed. Id.
Bates then sought certiorari in this Court raising the following question:
“Whether the trial court erred in imposing a sentence of death” after hearing
“unrebutted and uncontradicted evidence that Bates satisfied at least two statutory
mitigating circumstances” which were given no weight “in violation of Bates’ Eighth
Amendment right against the imposition of cruel and unusual punishment and his
fourteenth right [sic] to due process.” This Court denied certiorari. Bates v. Florida,
484 U.S. 873 (1987) (No. 87-5215).
Granted Resentencing and Operative Penalty Phase
Bates’ death sentence was later vacated because of ineffective assistance of
counsel after a prior governor signed his death warrant in 1989. Bates v. State, No.
SC2025-1127, 2025 WL 2319001, at *2 (Fla. Aug. 12, 2025). His operative
resentencing occurred in May 1995. (SentenceDA9:1–SentenceDA15:838.) At the
penalty phase, defense counsel elected not to introduce brain-damage evidence from
Dr. Crown after the court refused to appoint additional experts to rebut an MRI
9
showing no brain damage. (SentenceDA13:529–34.) Counsel earlier asserted that the
type of brain damage found by Dr. Crown would not show up on an MRI and the court
denied his request for additional experts based, in part, on that assertion.
(SentenceDA11:325, 329; SentenceDA13:529–34.).) Bates presented two other
experts to introduce mental health mitigation, and the State presented one to counter
that mitigation. See Bates v. State, 750 So. 2d 6, 13 (Fla. 1999); Bates v. State, 3 So.
3d 1091, 1101–1102 (Fla. 2009).
Bates also unsuccessfully sought to apply a 1995 statute precluding parole for
first-degree murders to his case, tell the jury he was parole ineligible, and also tell
the jury that his non-capital consecutive sentences gave him a functional life
sentence. (E.g., SentenceDA4:637–43; SentenceDA14:723; SentenceDA15:771, 832.)
Instead, consistent with Florida law, the court instructed the jury that its
recommendation options were death and life without the possibility of parole
eligibility for twenty-five years. (SentenceDA15:824, 829.)
Later, the jury asked: (1) “are we limited to the two recommendations of life
with minimum 25 years or death penalty?” and (2) “can we recommend life without a
possibility of parole?” (SentenceDA15:830.) The parties and court discussed the
questions, with the State noting defense counsel’s continual references to Bates
spending
the
rest
of
his
life
in
prison
may
have
confused
the
jury.
(SentenceDA15:830–33.) The court referred the jury to its instructions to answer the
question. (SentenceDA15:833.)
The jury ultimately recommended death by a 9-3 vote. (SentenceDA15:836.)
10
Bates argued the jury’s recommendation should be given no weight in the court’s
sentencing calculus because the jury had been misled about his parole eligibility and
functional life sentence. (SentencingDA3:534–37.) The court imposed a death
sentence
after
evaluating
the
aggravating
and
mitigating
circumstances.
(SentencingDA3:535–58.) Notably, the order does not indicate the court gave any
weight to the jury’s recommendation and only states the court agreed with the
“advisory” jury that “the aggravating factors outweigh all of the mitigating factors.”
(SentencingDA3:557.)
Resentencing Direct Appeal and Certiorari Petition
On resentencing direct appeal, Bates unsuccessfully argued the failure to
appoint experts caused him to abandon substantial brain-damage mitigation; he was
constitutionally entitled to make himself parole ineligible and inform the jury of his
parole ineligibility; he was constitutionally entitled to present his consecutive
sentences to the jury and argue he had a functional life sentence; and the State
inserted future dangerousness into his penalty phase. Bates v. State, 750 So. 2d 6, 9–
11, 15–17 (Fla. 1999).
Bates then sought certiorari raising the following question presented:
When at the time of defendant’s capital sentencing proceeding, life
without parole is a valid sentencing alternative to the death penalty can
the State deprive the defendant of the benefit of that sentencing
alternative if it was not available at the time the capital offense was
committed and where the defendant under oath affirmatively requests
the life without parole sentencing alternative and waives any ex post
facto protections involved?
This Court denied certiorari, and Bates’ sentence became final in October 2000. Bates
11
v. Florida, 531 U.S. 835 (2000) (No. 99-9526).
Initial Postconviction Litigation
Bates pursued postconviction relief and raised three relevant unsuccessful
claims: (1) his counsel ineffectively failed to call Dr. Crown (rejected on both no
deficient performance and no prejudice grounds); (2) his counsel ineffectively argued
the parole-eligibility issue (rejected as “meritless and procedurally barred”); and (3)
a lethal injection claim. Bates v. State, 3 So. 3d 1091, 1100–1102, 1105 & n.11, 1106
& n.18 (Fla. 2009). Bates did not seek certiorari review from this Court.
28 U.S.C. § 2254 Litigation and Certiorari Petition
Bates pressed the parole eligibility and consecutive sentence issues all the way
to the Eleventh Circuit, which rejected them. Bates v. Sec’y, Fla. Dep’t of Corr., 768
F.3d 1278, 1300–06 (11th Cir. 2014). His unsuccessful certiorari petition did not
challenge the Eleventh Circuit’s rejection of those issues. See Bates v. Jones, 577 U.S.
839 (2015) (No. 14-9864).
Post-Warrant Litigation
Florida Governor Ron DeSantis signed Bates’ second death warrant on July
18, 2025, with the execution scheduled for August 19, 2025. The Florida Department
of Corrections (DOC) provided Bates’ counsel with the past ten years of his medical
records. (WPCR:134 & n.1.) Shortly thereafter, Bates unsuccessfully sought lethalinjection records from the DOC, Florida Department of Law Enforcement, and
District 8 Medical Examiner. (See WPCR:343–44).
Cumulatively, the state court denied Bates’ lethal-injection-record demands as
12
overbroad, unduly burdensome, not related to a colorable claim for relief, and also
because Bates failed to establish good cause for failing to seek the records before his
warrant was signed. (WPCR:343–44.) The court further determined some of the
records Bates sought were statutorily exempt from disclosure. (Id.)
Bates filed his post-warrant state postconviction motion raising three relevant
claims: (1) his 1995 operative penalty phase violated the Eighth Amendment because
substantial evidence of brain damage was not presented; (2) his 1995 operative
penalty phase violated due process and the Eighth Amendment because the jury was
misled into believing its only recommendation options were life with parole and
death; (3) the warrant period and denial of lethal-injection records violated numerous
constitutional rights. (WPCR:423–48.) The warrant court summarily denied all
Bates’ claims. (WPCR:895–910.)
The Florida Supreme Court affirmed the denial of Bates’ first claim regarding
the omission of substantial mitigation “as untimely, procedurally barred, and
meritless.” Bates v. State, No. SC2025-1127, 2025 WL 2319001, at *3 (Fla. Aug. 12,
2025). It found his second, misleading-the-jury claim untimely and procedurally
barred. Id. at 4 & n.5. In rejecting Bates’ third, hybrid claim regarding the 31-day
warrant period and denial of access to lethal injection records, the court noted it had
“recently found comparable arguments to be meritless” and affirmed. Id. at 5. Finally,
in addressing Bates’ demand for lethal injection records, the Florida Supreme Court
determined the lower court did “not abuse its discretion” in denying Bates’ demands.
Id. at 6.
13
Bates filed his certiorari petition in this Court seeking review of the following
three questions presented five days before his scheduled execution:
1. Whether a state can carry out an execution despite the relevant
sentencers never considering compelling and outcome determinative
neuropsychological evidence that showed the defendant’s case was
not among the most aggravated and least mitigated.
2. Whether sentencing and appellate courts can rely upon death
recommendations made by jurors that were misled about the
defendant’s possible release and danger to the community.
3. Whether state courts can apply discovery rules to preclude access to
the facts necessary to allege and prove that an imminent execution
by lethal injection will constitute cruel and unusual punishment.
This is the State’s Brief in Opposition.
REASONS FOR DENYING THE WRIT
Bates has litigated and re-litigated his death sentence for over four decades,
far longer than his victim ever lived. Now, on the eve of his execution, and for the
eighth total time,4 he asks this Court to intervene in a penultimate attempt to deprive
his victims of justice for heinous crimes committed in June 1982.
This Court should decline. The State and victims are entitled to finality after
expanding over four decades worth of resources defending a long-settled judgment
and sentence of death. See Calderon v. Thompson, 523 U.S. 538, 556 (1998). The time
has long “come and gone” for Bates “who has litigated and re-litigated variations on
the same claims for decades” to accept his sentence and allow the law to “run its
4 The seventh is currently pending before this Court in Bates v. Dixon, No. 25-12588.
14
course.” See Lambrix v. Sec’y, Fla. Dep’t of Corr., 851 F.3d 1158, 1173 (11th Cir. 2017).
Bates’ eighth certiorari petition presents the following three long-deferred
questions for this Court’s review: (1) Does the Eighth Amendment invalidate capital
sentences imposed without consideration of substantial mitigation? (2) Did it violate
the Eighth Amendment or the Fourteenth Amendment’s due process clause to
correctly tell the jury that it could only recommend life without parole or death and
exclude information that Bates had cumulative 45-year consecutive sentences? (3)
Does it violate due process for a state to preclude discovery on lethal-injection claims
until a capital defendant pleads a facially valid claim, narrows the scope of his
requests so the requests are not overbroad or unduly burdensome, and shows good
cause for failing to seek those records before a death warrant?
But Bates has no valid excuse for waiting until a warrant to litigate, or
relitigate, these issues. Every question he now presents should have been (or was)
asked long ago. Bates long-belated certiorari questions are entitled to no answer from
this Court on that basis alone. See Bucklew v. Precythe, 587 U.S. 119, 1501 (2019).
The State will deal with each of Bates’ dilatory questions presented in turn.
But none warrants this Court’s review. This case would be unworthy of certiorari
review under normal circumstances, much less on the eve of an execution. The
decision below properly stated and applied all governing federal principles, is based
primarily on state-law grounds, does not implicate an important or unsettled question
of federal law, does not conflict with another state court of last resort or a United
States Court of Appeals, and does not conflict with any decision of this Court. Review
15
should be denied. See Sup. Ct. R. 10, 14(g)(i).
Bates does not noticeably assert otherwise and instead relies on broad and not
directly applicable principles of law in asking this Court to delay execution of a death
sentence that has been final for decades. But the fact that his questions presented
are important to him is not a reason to grant certiorari. See Coleman v. Balkcom, 451
U.S. 949, 956 (1981) (Rehnquist, J., dissenting from denial of certiorari) (recognizing
the questions presented by a capital defendant were “of importance only to petitioner
himself and therefore” were “not suitable candidates for the exercise of our
discretionary jurisdiction” while arguing this Court should grant certiorari to headoff more federal delays). This Court should deny certiorari and bring true finality to
the victims, the State of Florida, and Kayle Bates.
I.
Does the Eighth Amendment invalidate capital sentences
imposed without consideration of substantial mitigation never
presented in a capital penalty phase?
Bates’ first question presented asks this Court to determine whether the
Eighth Amendment invalidates capital sentences imposed without consideration of
substantial mitigation (brain damage in Bates’ case) that was never presented in a
capital penalty phase. This Court lacks jurisdiction over this question presented
because the Florida Supreme Court rejected it as time and procedurally barred, two
independent and adequate state law grounds supporting the decision below. Bates v.
State, No. SC2025-1127, 2025 WL 2319001, at *3–4 (Fla. Aug. 12, 2025) (“We reject
this claim as untimely, procedurally barred, and meritless.”). Jurisdiction aside, this
16
Court should deny certiorari for the following four additional reasons.
A. There Is No Conflict and This Court Has Already Answered This
Question.
Bates’ first question presented was answered by this Court over thirty years
ago and lower courts are therefore (unsurprisingly) not in conflict about it. In 1990,
this Court affirmatively held the Eighth Amendment permits the mandatory
imposition of a death sentence where the State proves aggravation and the defendant
presents no mitigation. See Blystone v. Pennsylvania, 494 U.S. 299, 301, 304–09 &
n.4 (1990). In Blystone, this Court held that the mitigation-related “dictates of the
Eighth Amendment” were satisfied “by allowing the jury to consider all relevant
mitigating evidence” despite the defendant choosing to present zero mitigation. Id. at
307–08. Under Blystone, the mere failure to present mitigation, even substantial
mitigation, at Bates’ 1995 penalty phase cannot violate the Eighth Amendment.
Blystone squarely contradicts Bates’ argument that a sentence imposed
without consideration of substantial (in his view) mitigation violates the Eighth
Amendment. Bates’ view would have required this Court to remand for investigation
of whether there was substantial outstanding mitigation. But it did not do so. It
instead affirmed and held the completely untaken opportunity to present mitigation
satisfied the Eighth Amendment and permitted mandatory imposition of a death
sentence. Blystone, 494 U.S. at 301, 304–09 & n.4.5
5 This Court has been reluctant to expand the Eighth Amendment beyond an analysis
of the quantum of punishment imposed rather than the process through which it is
derived. See City of Grants Pass, Oregon v. Johnson, 603 U.S. 520, 542–43
17
Lower courts have naturally followed this Court’s precedent and held the fact
that mitigation went unpresented in a capital penalty phase does not offend the
Eighth Amendment. United States v. Roof, 10 F.4th 314, 356 (4th Cir. 2021)
(recognizing “the Supreme Court has not indicated that the Eighth Amendment, or
any other Amendment, requires mitigation evidence” as opposed to just the option to
present mitigation); Silagy v. Peters, 905 F.2d 986, 1008 (7th Cir. 1990) (rejecting the
argument that a capital defendant’s “decision not to present mitigating evidence
during the sentencing phase of his trial so undermined the reliability of his sentence
that it cannot stand under the guarantees of the” Eighth Amendment).
The Florida Supreme Court’s alternative rejection of Bates’ arguments as
meritless falls directly in line with these holdings. A question this Court already
answered is not worthy of certiorari review on the eve of an execution when the lower
court’s decision is fully in line with this Court’s precedent.
B. Bates’ Proposed New Eighth Amendment Rule Is Not Retroactive.
This Court should also decline review because Bates has failed to address
retroactivity, and the answer to his first question presented does not retroactively
apply to him. Any decision from this Court holding the Eighth Amendment
invalidates capital sentences imposed without consideration of substantial mitigation
(2024) (“The Cruel and Unusual Punishments Clause focuses on the question what
“method or kind of punishment” a government may impose after a criminal
conviction, not on the question whether a government may criminalize particular
behavior in the first place or how it may go about securing a conviction for that
offense.”) (citation omitted).
18
would not be retroactive to Bates’ capital sentence, which finalized in 2000.
Determining federal retroactivity requires analyzing three questions: (1) When
did Bates death sentence become final? (2) Is the rule this Court announces actually
new when viewed from the legal landscape existing when the conviction became final?
(3) Does the new rule fall within a non-retroactivity exception? See Beard v. Banks,
542 U.S. 406, 411 (2004).
Bates has failed to discuss any of these questions, and that is reason enough
to deny certiorari. Retroactivity is a threshold issue after all. See Caspari v. Bohlen,
510 U.S. 383, 389 (1994) (“[I]f the State does argue that the defendant seeks the
benefit of a new rule of constitutional law, the court must” determine retroactivity
“before considering the merits of the claim.”); Graham v. Collins, 506 U.S. 461, 477
(1993) (refusing to reach the merits when the petitioner asked for a new rule to be
applied to his case because any decision would not have been retroactive).
But
more
importantly,
this
Court’s
retroactivity
precedents
clearly
demonstrate Bates would receive no relief on his Eighth Amendment issue. His death
sentence finalized in 2000 and Blystone squarely foreclosed his view of the Eighth
Amendment. Any rule that the Eighth Amendment requires consideration of
mitigation a capital defendant does not present is indeed new to Bates long-finalized
capital sentence.
The final retroactivity question also demonstrates Bates could not obtain relief
19
from this Court on his proposed new rule. The only nonretroactivity exception6
applicable to Bates’ first question applies if this Court’s new answer forbids
punishment of certain conduct or prohibits a category of punishment on a class of
defendants. Edwards v. Vannoy, 593 U.S. 255, 263–76 * n.3 (2021) (eliminating the
watershed procedural rule exception to nonretroactivity and recognizing substantive
rules are automatically retroactive). Holding that the Eighth Amendment requires
consideration of unadmitted mitigation does neither. The most Bates can get from his
proposed new rule is a third penalty phase, not an exemption from his death sentence.
Respect for the State’s resources, the victims, and decades of finality counsel
against taking this case considering the threshold retroactivity question here.
C. Bates Delayed Presenting this Question.
This Court should not reward Bates for belatedly asking to impose an Eighth
Amendment requirement for sentencers to consider substantial mitigation a capital
defendant never presented. Bates penalty phase occurred in 1995, and he has been
complaining about the lack of brain damage mitigation for decades. E.g., Bates v.
State, 750 So. 2d 6, 16 (Fla. 1999); Bates v. State, 3 So. 3d 1091, 1100–02 (Fla. 2009).
Bates could have, but did not, assert this question for this Court’s review in his
2000 certiorari petition. He also did not assert this question presented in any other
certiorari petition even though it pertains to issues that have been well known for
6 This Court has recognized that this is not really an exception, but a substantive rule
that does not need to go through a retroactivity analysis. Beard, 542 U.S. at 411 n.3.
20
decades. Instead, he waited until the eve of his execution as a delay tactic. That tactic
should not be rewarded.
D. Bates Case is a Poor Vehicle to Address this Question
Bates’ case also presents a poor vehicle to re-answer his first question
presented. It comes to this Court in warrant posture for one, and the Florida Supreme
Court’s rejection of Bates’ claims as time and procedurally barred present antecedent
issues and jurisdictional questions for another. A certiorari petition from a direct
appeal in a capital case where substantial mitigation went unpresented would be a
far better vehicle than this one.
But more broadly, no court has agreed with Bates that he has substantial,
compelling mitigation that went unconsidered at his penalty phase. Bates v. State,
No. SC2025-1127, 2025 WL 2319001, at *4 (Fla. Aug. 12, 2025) (“No additional
evidence of brain damage would have overcome the significant aggravators presented
against Bates.”). Bates v. State, 3 So. 3d 1091, 1100–1102 (Fla. 2009) (holding the
omission of brain damage evidence did not prejudice Bates because it was mostly
cumulative to what he presented). It is thus not clear whether Bates’ proposed
mitigation even fits within the rule he seemingly urges this Court to adopt. That is
another reason to deny certiorari. See Rice v. Sioux City Mem’l Park Cemetery, 349
U.S. 70, 74 (1955) (certiorari should not be granted when the issue is only academic);
Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945) (stating certiorari is the power “to
correct wrong judgments, not to revise opinions”).
This Court should deny certiorari on Bates’ first question presented for all
21
these reasons.
II.
Did telling Bates’ 1995 penalty phase jury its only
recommendation options were life without parole eligibility for
twenty-five years or death violate the Fourteenth Amendment’s
due process clause and Eighth Amendment?
For his second question, Bates repackages and re-presents a question this
Court declined to answer twenty-five years ago. See Bates v. Florida, 531 U.S. 835
(2000) (No. 99-9526). He argues the Eighth Amendment and due process required
allowing him to waive parole, inform the jury he was parole ineligible, and also tell
the jury he had consecutive sentences totaling forty-five years. These arguments have
been litigated, re-litigated, and rejected at least three times on the merits by the
Florida Supreme Court and Eleventh Circuit. Bates v. State, No. SC2025-1127, 2025
WL 2319001, at *4 & n.5 (Fla. Aug. 12, 2025) (citing two prior decisions where the
Florida Supreme Court rejected Bates’ arguments before rejecting them as barred);
Bates v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1300–06 (11th Cir. 2014) (finding
the Florida Supreme Court reasonably applied federal law in rejecting these issues).
This Court denied certiorari on this question presented over two decades ago
and it has not grown more worthy of review since then. Indeed now, as opposed to
before, this Court lacks jurisdiction over it because the Florida Supreme Court
rejected it as both time and procedurally barred. See Bates v. State, No. SC2025-1127,
2025 WL 2319001, at *4 & n.5 (Fla. Aug. 12, 2025) (holding “this claim is procedurally
barred” and “also untimely under rule 3.851(d)” without reaching the merits).
But even if this Court had jurisdiction, declining review again would be the
22
only proper course. Bates does not even try to establish conflict with any decision
from lower courts or this Court and cannot do so. E.g., Ramdass v. Angelone, 530 U.S.
156, 169 (2000) (rejecting “a functional approach” that “evaluates whether it looks
like the defendant will turn out to be parole ineligible” to the rule allowing capital
defendants to place their parole eligibility before the jury if future dangerousness is
at issue). This amalgamated issue presents this Court with no divisive or unsettled
question of federal law meriting this Court’s review for three reasons in addition to
the dispositive jurisdictional hurdle Bates faces.
A. Bates’ Second Question Is Intertwined with Long-Obsolete Florida Law
and Dispositive Factual Disputes.
Bates’ second question presented is intertwined with now-obsolete, state-law
disputes about the length of time he would spend in prison on his consecutive
sentences and whether an amended statute precluding parole applied to him. There
are also at least two dispositive factual disputes over whether the State inserted
future dangerousness into his penalty phase and whether the sentencing court relied
on the jury’s recommendation at all. These state-law and factual disputes, along with
the limited precedential value of answering this second question presented, make it
unworthy of this Court’s review.
Federal issues wrapped in antecedent questions of state law are rarely
appropriate subjects for certiorari. See N.C.P. Mktg. Group, Inc. v. BG Star
Productions, Inc., 556 U.S. 1145, 1578 (2009) (statement of Kennedy, J., respecting
the denial of certiorari). The Florida Supreme Court has already held, as a matter of
23
state law, Bates could not waive his parole eligibility and apply an inapplicable
amended statute precluding parole to his 1982 crime. See Bates v. Sec’y, Fla. Dep’t of
Corr., 768 F.3d 1278, 1303 (11th Cir. 2014) (“The Florida Supreme Court’s twin
determinations—that the 1994 amendment to § 775.082 does not apply retroactively
to Bates’ criminal conduct and that he had no right under state law to waive his
parole eligibility—conclusively establish that Bates would be eligible for parole if the
jury sentenced him to life imprisonment.”).
And contrary to Bates’ suggestion, it is not likely his consecutive sentences
amounted to a functional life sentence. Gain time operated very differently for 1982
crimes like Bates’ than the more straightforward system employed today. See Gomez
v. Singletary, 733 So. 2d 499, 500–08 (Fla. 1998); Gwong v. Singletary, 683 So. 2d 109,
111–14 & n.1, n.2 (Fla. 1996). The Eleventh Circuit calculated Bates would have been
eligible for parole “within 37 years of his initial 1983 confinement or 25 years after
his 1995 resentencing proceeding” if given life. Bates, 768 F.3d at 1305.
Adding to all of this, the issue Bates asks this Court to decide is of too limited
precedential value to merit this Court’s attention. Cf. Illinois v. Fisher, 540 U.S. 544,
549 (2004) (Stevens, J., concurring) (agreeing with the decision to reverse while
arguing the case did not merit this Court’s review because of its limited precedential
value). For decades, Florida law has provided only two sentencing options for firstdegree murders occurring after 1995: life without parole and death. Bates v. State,
750 So. 2d 6, 10 (Fla. 1999). The issue of parole eligibility for first-degree murder is
now obsolete and of no precedential value for future capital crimes arising out of
24
Florida. Questions that are effectively moot under current state law do not warrant
this Court’s intervention.
Aside from now obsolete disputes about state law, answering Bates’ second
question presented would require this Court to weigh in on a longstanding and legally
dispositive factual dispute about whether the prosecution inserted future
dangerousness into Bates 1995 penalty phase. The Florida Supreme Court resolved
that dispute in the State’s favor in 1999. See Bates, 750 So. 2d at 11 (twice rejecting
Bates’ argument the state injected future dangerousness into his penalty phase).
That factual dispute lies at the heart of Bates’ second question presented.
Indeed, the overarching rules and caselaw Bates’ cites in support of this question
presented only apply if Bates is correct. It is well-established that capital defendants
are only entitled to a parole-ineligibility instruction when the State puts future
dangerousness at issue. See Lynch v. Arizona, 578 U.S. 613, 613–17 (2016); Kelly v.
South Carolina, 534 U.S. 246, 248, 252–56 (2002); Ramdass v. Angelone, 530 U.S.
156, 165 (2000). Otherwise, the “decision whether or not to inform the jury of the
possibility of early release is generally left to the States.” Simmons v. South Carolina,
512 U.S. 154, 176 (1994) (O’Connor, J., concurring with Kennedy, J., and Rehnquist,
C.J.) (If “the prosecution does not argue future dangerousness, the State may
appropriately decide that parole is not a proper issue for the jury’s consideration even
if the only alternative sentence to death is life imprisonment without possibility of
25
parole.”).7
That threshold factual dispute counsels against granting certiorari on Bates’
second question presented. See Sup. Ct. R. 10 (“A petition for a writ of certiorari is
rarely granted when the asserted error consists of erroneous factual findings.”); Saye
v. Williams, 452 U.S. 926, 930 (1981) (Rehnquist, J., dissenting from certiorari denial)
(recognizing cases involving factual disputes are not “particularly attractive”
candidates for review while arguing disputed facts were not integral to the legal
issues).
But it is also worth noting Bates would be on the losing side of the factual
dispute anyway. This is the argument he contends inserted future dangerousness into
his penalty phase:
“There are non-statutory mitigating circumstances. There are statutory
mitigating circumstances. These are the things you take into
consideration. As to go towards the sentence of life imprisonment with
a minimum mandatory of twenty-five years before the defendant is
eligible for parole. They don’t have to be proven the same way the
aggravating circumstances are proven. No, they just have to be shown
from the evidence.”
(SentenceDA15:779–80.) No fair reading of this argument describing mitigation
suggests future dangerousness. A factual dispute the petitioner is on the losing side
of does not merit this Court’s review.
The State also disputes Bates’ factual contention that the sentencing court
7 Justice O’Connor’s concurrence set the controlling precedent for Simmons. O’Dell v.
Netherland, 521 U.S. 151, 158 (1997) (noting Justice O’Connor and the Justices
joining her opinion provided “the dispositive votes necessary to sustain” the decision).
26
relied on the jury’s recommendation while imposing death. In 1995, Bates argued the
judge should afford the jury’s recommendation no weight because the jury was misled
and nothing in the court’s order indicates the jury’s recommendation was given any
weight. See generally White v. State, 616 So. 2d 21, 24–26 (Fla. 1993) (penalty phase
judges are not allowed to abdicate their role in determining the proper sentence by
only determining whether the jury reasonably recommended death). At Bates’ behest,
it appears the judge who actually imposed death did not defer to the jury at all. (See
SentencingDA3:557.)
Bates’ second question presented is entangled with questions of state law,
obsolete parole eligibility issues, and factual disputes he cannot win. It is not worthy
of this Court’s review.
B. Bates’ Proposed New Eighth Amendment and Due Process Rules Are
Not Retroactive.
Bates’ second question runs into the same retroactivity problem as his first. No
controlling law in 2000 when Bates’ death sentence finalized required allowing him
to waive parole and then tell the jury he was parole ineligible or tell the jury his
consecutive sentences amounted to a functional life sentence. See Bates v. Sec’y, Fla.
Dep’t of Corr., 768 F.3d 1278, 1300–06 (11th Cir. 2014) (holding the Florida Supreme
Court reasonably applied federal law existing in 1999 in rejecting these claims).
Indeed, the same year Bates’ sentence became final, this Court held there was no
entitlement to tell capital juries about functional life sentences even when the state
inserts future dangerousness into a capital penalty phase. See Ramdass v. Angelone,
27
530 U.S. 156, 169 (2000).
The Eighth Amendment and due process rules Bates’ seeks from this Court
were clearly not “dictated by precedent existing at the time the defendant’s conviction
became final” in 2000. See Edwards v. Vannoy, 593 U.S. 255, 265 (2021) (emphasis
added). They are, instead, new and not retroactive rules inapplicable to Bates because
they would only entitle him to another penalty phase. See O’Dell v. Netherland, 521
U.S. 151, 157–68 (1997) (treating retroactivity as a threshold issue and holding the
rule announced in the various opinions in Simmons v. South Carolina, 512 U.S. 154,
161 (1994) (plurality opinion) was not retroactive); Edwards, 593 U.S. at 272 (“New
procedural rules do not apply retroactively” in postconviction proceedings).
This Court should deny certiorari review of Bates’ second question presented
because the answer simply does not retroactively apply to him.
C. This Court Declined Certiorari in 2000 and Bates Delayed
Presenting this Question Again.
This Court declined to take this question in 2000, and Bates did not present it
again after the conclusion of his 28 U.S.C. § 2254 litigation. As this Court often
chooses “to wait for federal habeas proceedings” before granting certiorari, Lawrence
v. Florida, 549 U.S. 327, 335 (2007), Bates’ failure to present this question then
counsels against granting certiorari on it now.
The consecutive-sentence and parole-eligibility issues were some of Bates lead
contentions before the Eleventh Circuit during his 28 U.S.C. § 2254 appeal. See Bates
v. Sec’y, Fla. Dep’t of Corr., 768 F.3d 1278, 1300–06 (11th Cir. 2014). But his
28
subsequent certiorari petition only raised an establishment clause issue. See Bates v.
Jones, 577 U.S. 839 (2015) (No. 14-9864). Bates’ choice to forgo an opportunity to represent this issue just over a decade ago and instead wait until the eve of his
execution to do so again counsels against certiorari review.
For all these reasons, this Court should decline certiorari review of Bates’
second question presented.
III.
Does the Fourteenth Amendment’s due process clause permit a
state to require a defendant to plead a facially valid lethalinjection claim, narrow his requests so they are not unduly
broad or burdensome, and show good cause for failing to request
lethal-injection records prior to a death warrant before
granting post-death-warrant demands for records?
Bates’ final question presented asks this Court to decide whether due process
provides him an absolute right to demand records related to lethal injection at any
time regardless of his dilatory conduct, no matter how broad and burdensome, and
regardless of whether he can show a colorable claim for relief first. He does not cite a
single case or court suggesting due process goes that far and instead relies on three
cases regarding evidentiary hearings on right to counsel claims that have nothing to
do with discovery, much less lethal injection discovery.
Florida Rule of Criminal Procedure 3.852 (the rule Bates effectively asks this
Court to invalidate on due process grounds) provides a lower state court may order
production of “additional public records only upon finding each of the following”:
(A)
collateral counsel has made a timely and diligent search of the
records repository;
29
(B)
collateral counsel’s affidavit identifies, with specificity those
additional public records that are not at the records repository;
(C)
the additional public records sought are either relevant to the
subject matter of a proceeding under rule 3.851, or appear
reasonably calculated to lead to the discovery of admissible
evidence; and
(D)
the additional public records request is not overly broad or unduly
burdensome.
Fla. R. Crim. P. 3.852(i)(2)(A)-(D). Demands made after a warrant is signed must
additionally show “good cause as to why the public records request was not made
until after the death warrant was signed.” Zakrzewski v. State, No. SC2025-1009,
2025 WL 2047404, at *6 (Fla. July 22, 2025). Below, in aggregate, the warrant court
determined Bates’ lethal-injection demands were unduly broad and burdensome, not
related to a colorable claim, not timely made, and some of the records he sought were
statutorily exempt from disclosure. (WPCR:343–44.).
This Court has repeatedly refused to constitutionalize discovery through due
process. E.g., Gray v. Netherland, 518 U.S. 152, 168 (1996) (noting this Court’s
repeated admonitions that due process has “little to say regarding the amount of
discovery which the parties must be afforded” and that there is “no general
constitutional right to discovery”). This Court’s clear position on the issue
notwithstanding, Bates asks this Court to establish the extraordinary due process
rule that capital defendants should be allowed to wait until an execution is scheduled
to demand and receive whatever lethal-injection records they want without
establishing a plausible claim for relief first.
30
This Court should decline certiorari for two overarching reasons. First and
foremost, Bates has failed to establish any conflict with this Court’s precedent.
Indeed, this Court has expressly disclaimed the position that “the State must enable
the prisoner to discover grievances, and to litigate effectively once in court.” Lewis v.
Casey, 518 U.S. 343, 354 (1996); Wellons v. Comm’r, Ga. Dep’t of Corr., 754 F.3d 1260,
1267 (11th Cir. 2014) (relying on Lewis to reject a due process right to lethal-injection
discovery and collecting cases from the Fifth and Eighth Circuits holding the same).
Due process is simply not the generalized discovery tool Bates tries to contort
it into. E.g., Gray, 518 U.S. at 168. He cites no court that has adopted the “novel idea
that the law will (or should) allow discovery first, and only then require him to meet
the standards prescribed by” this Court for lethal-injection claims. See Jones v.
Comm’r, Georgia Dep’t of Corr., 812 F.3d 923 (11th Cir. 2016) (Marcus, J., concurring
in the denial of initial hearing en banc with Ed Carnes, C.J., and Tjoflat, Hull,
William Prior, and Julie Carnes, JJs). The lack of conflict makes this question
unworthy of this Court’s review. That is particularly true because Florida’s Rule
3.852’s colorable-claim requirement is in line with the Federal Rules of Civil
Procedure. See id. (noting “Federal Rule of Civil Procedure 8” requires plaintiffs
“allege ‘enough facts to state a claim to relief that is plausible on its face’ before”
providing “discovery on his Eighth Amendment claim”); Whitaker v. Collier, 862 F.3d
490, 502 (5th Cir. 2017) (holding the plaintiff was not entitled to discovery on a lethalinjection claim without a “properly pleaded complaint”).
Second, Bates delayed presenting this question to this Court. He, through his
31
current counsel, raised and litigated a prior lethal-injection challenge that was
rejected in 2009 and yet Bates has never before complained about the lack of lethal
injection records to this Court. (PCR4:598–601, 694); Bates v. State, 3 So. 3d 1091,
1106 & n.18 (Fla. 2009). His failure to raise issues about lacking lethal-injection
records before a warrant counsels against granting certiorari on this question now.
That is particularly true given lethal-injection claims are “especially vulnerable” to
“gamesmanship” and this Court has warned against using method-of-execution
“‘challenges as tools to interpose unjustified delay.’” Middlebrooks v. Parker, 22 F.4th
621, 625 (6th Cir. 2022) (Thapar, J., statement respecting denial of rehearing en banc)
(quoting Bucklew v. Precythe, 587 U.S. 119, 149 (2019)).
Bates’ failure to establish conflict and ask this Court to answer this question
earlier are reason enough to deny certiorari on the eve of his execution. But it is also
worth noting that Bates does not specifically identify exactly what records he believes
he needed to plead a lethal injection claim. He had access to his own medical records,
the most crucial records needed to establish an as-applied lethal injection claim,
before a warrant upon request and, after the death warrant, ten years of his medical
history were provided to counsel. See In re Amends. to Fla. Rule of Crim. Proc. 3.852,
163 So. 3d 476, 477 (Fla. 2015). Other capital defendants in Florida have recently
raised as-applied challenges based on facts specific to their case, albeit
unsuccessfully. Rogers v. State, 409 So. 3d 1257, 1266–69 (Fla. 2025); Tanzi v. State,
407 So. 3d 385, 392–93 (Fla. 2025) (same); Cole v. State, 392 So. 3d 1054, 1064–65
(Fla. 2023) (same). It is unclear why Bates could not do the same.
32
Bates’ broad incantation of due process as magic words allowing capital
defendants to demand whatever lethal-injection records they want after a death
warrant is signed no matter how dilatory the defendant has been, and no matter how
broad, burdensome, unrelated to a plausible claim for relief, and statutorily exempt
the record demands are, cannot be sustained under any coherent view of due process.
Bates’ due process claim is little more than a request to legitimize the unwarranted
delays in lethal injection litigation this Court, and the Florida Supreme Court, have
attempted to curtail. See Bucklew v. Precythe, 587 U.S. 119, 149 (2019); Dailey v.
State, 283 So. 3d 782, 792–93 (Fla. 2019).
The limitations imposed by Rule 3.852 “are aimed at preventing capital
postconviction defendants from engaging in an eleventh hour attempt to delay the
execution rather than a focused investigation into some legitimate inquiry” and
“reasonable in the context of capital postconviction claims.” Dailey, 283 So. 3d at 793.
This Court should therefore deny certiorari on Bates’ final question presented.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
/s/ C. Suzanne Bechard_______
CARLA SUZANNE BECHARD
Associate Deputy Attorney General
Counsel of Record
JASON W. RODRIGUEZ
33
Senior Assistant Attorney General
Office of the Attorney General
3507 East Frontage Road, Suite 200
Tampa, Florida 33607
CarlaSuzanne.Bechard@myfloridalegal.com
(813) 287-7900
COUNSEL FOR RESPONDENT
34
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.