Petition for Writ of Certiorari — Samuel Lee Smithers, Petitioner v. Florida

No. ______

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

SAMUEL LEE SMITHERS, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

_____________________________________________________________

APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI

CAPITAL CASE

DEATH WARRANT SIGNED

Execution Scheduled: October 14, 2025, at 6:00 p.m. ET

MELODY JACQUAY-ACOSTA

*ANN MARIE MIRIALAKIS

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION

12973 N. Telecom Parkway

Temple Terrace, Florida 33637

813-558-1600

Support@ccmr.state.fl.us

jacquay@ccmr.state.fl.us

Mirialakis@ccmr.state.fl.us

Counsels of Record for Petitioner

*Member of the Bar of the Supreme Court

INDEX TO THE APPENDIX

JUDGEMENT SOUGHT TO BE REVIEWED

Appendix A:

Opinion of the Florida Supreme Court

Smithers v. State, SC2025-1507, 2025 WL _____ (Fla. October 7,

2025)

OPINIONS OF THE FLORIDA SUPREME COURT

Appendix B:

Order of the Circuit Court for the Thirteenth Judicial Circuit,

Hillsborough County, Florida, denying postconviction relief

(September 26, 2025)

No. ______

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

SAMUEL LEE SMITHERS, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

_____________________________________________________________

APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

CAPITAL CASE

DEATH WARRANT SIGNED

Execution Scheduled: October 14, 2025, at 6:00 p.m. ET

_____________________________________________________________

APPENDIX A

Opinion of the Florida Supreme Court

Smithers v. State, SC2025-1507, 2025 WL _____ (Fla. October 7, 2025)

Supreme Court of Florida

____________

No. SC2025-1507

____________

SAMUEL L. SMITHERS,

Appellant,

vs.

STATE OF FLORIDA,

Appellee.

October 7, 2025

PER CURIAM.

Samuel L. Smithers, a prisoner under two sentences of death

and an active death warrant, appeals the circuit court’s summary

denial of his successive motion to vacate his sentences of death.

We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. As we

explain below, we affirm the summary denial of Smithers’

postconviction motion.

I. FACTS AND PROCEDURAL BACKGROUND

The opinion on direct appeal, Smithers v. State, 826 So. 2d

916, 918 (Fla. 2002), explained the following. In 1995, Samuel

Smithers agreed to maintain the lawn at a vacant 27-acre property

in Plant City. The property was also the site of three ponds. The

property owner gave Smithers a key to the gate that enclosed the

property but not to the house located on the property.

Smithers continued to do lawn maintenance on the property in

1996. He mowed the lawn during the week of May 20, 1996, after

which the owner paid him on May 26. A couple of days later, the

owner went to check on the property. Upon arrival, the owner

found Smithers’ truck parked outside of the carport and Smithers

sitting on the carport cleaning an axe. Smithers explained that he

had returned to the property to cut some tree limbs, but the owner

also noticed a pool of blood on the carport. Smithers suggested that

someone must have killed a small animal, and he promised to clean

the carport.

Concerned about the pool of blood, the owner contacted the

Sheriff’s Department and later met a deputy at the property. At

that point, although the blood had been cleaned up, marks in the

grass that appeared to be drag marks led to one of the ponds where

a dead woman, later identified as Cristy Cowan, was found floating

-2-

in the water. Further searching by a dive team led to the discovery

of another body, later identified to be Denise Roach.

DNA evidence linked to Smithers was found on the property

inside of the house, and a blood stain found on the carport was

consistent with Roach’s DNA. Additional evidence linking Smithers

to the murders was found during a search of his home, and

surveillance video from a local convenience store showed Smithers

and Cowan together about one hour before the owner arrived at the

property and discovered Smithers.

After the discovery of the bodies, Smithers agreed to submit to

an interview at the Sheriff’s Department and was questioned for

almost three hours. In an interview the next day, Smithers

provided inconsistent statements and eventually admitted to the

murders of Cowan and Roach. He was arrested and charged with

both murders. Smithers filed motions to sever the two charges for

purposes of trial and to suppress his confession, both of which were

denied by the trial court.

The medical examiner’s trial testimony indicated that both

victims were strangled and sustained chop or stab wounds:

-3-

At trial, the medical examiner testified that at the

time Cowan’s body was discovered, she had not been

dead for more than a couple of hours. There was a foam

cone around her mouth which suggested that she might

have drowned. Cowan had an injury to her eye, a

laceration under her lip, a blunt impact injury to her jaw,

a chop wound on the top of her head which penetrated

her brain, and a chop wound behind her ear. She also

had injuries consistent with manual strangulation. The

medical examiner stated that death was caused by

strangulation combined with the chop wounds.

Regarding Roach, the medical examiner testified

that the body had been in the pond seven to ten days and

was therefore very decomposed. There were two slits in

Roach’s clothing which were caused by a sharp

instrument. Her face and skull were fractured. There

were also sixteen puncture wounds to her skull, several

of which penetrated the skull. Finally, she had injuries

consistent with manual strangulation (the hyoid bone

was fractured). The medical examiner stated that death

was caused by the combined effects of strangulation,

stab wounds, and blunt impact to the head.

Id. at 920.

Smithers testified in his defense at trial and told a different

version of events than he provided to the detectives, this time

placing the blame for both murders on an unknown man. The jury

ultimately convicted Smithers of both counts of first-degree murder

and, at the conclusion of the penalty phase, the jury unanimously

recommended death for both murders. Id. at 921-22. As to the

murder of Cowan, the trial court found the following aggravating

-4-

factors: (1) prior violent felony (the contemporaneous murder of

Roach), (2) the murder was especially heinous, atrocious, or cruel

(HAC), and (3) the murder was committed in a cold, calculated, and

premeditated manner without any pretense of moral or legal

justification (CCP). The trial court found two aggravating factors as

to the murder of Roach: (1) prior violent felony (the

contemporaneous murder of Cowan) and (2) HAC.1 Id. at 922. The

circuit court, concluding the aggravating factors outweighed the

mitigating circumstances, sentenced Smithers to death for both

murders.

Smithers’ convictions and sentences were affirmed on direct

appeal.2 Id. at 931. His convictions and sentences became final

1. As statutory mitigation, the trial court found that (1) the

murder was committed while Smithers was under the influence of

extreme mental or emotional disturbance (moderate weight), and

(2) Smithers’ capacity to appreciate the criminality of his conduct or

conform his conduct to the requirements of the law was

substantially impaired (moderate weight). The trial court also found

seven nonstatutory mitigators, each of which was assigned

moderate weight, and the court gave great weight to a request made

by Cowan’s father that Smithers be sentenced to life imprisonment.

Id. at 922.

2. This Court rejected six issues raised by Smithers on direct

appeal: (1) the trial court erred in denying Smithers’ motion to sever

the two murder offenses; (2) the trial court erred in denying

-5-

when the United States Supreme Court denied certiorari review on

February 24, 2003. Smithers v. Florida, 537 U.S. 1203 (2003).

This Court affirmed the denial of Smithers’ initial motion for

postconviction relief and denied his petition for writ of habeas

corpus. Smithers v. State, 18 So. 3d 460, 463-73 (Fla. 2009).3

In 2017, Smithers filed a successive motion for postconviction

relief based on the United States Supreme Court’s decision in Hurst

Smithers’ motion to suppress his confession; (3) the waiver of

Smithers’ presence at a pretrial hearing constituted fundamental

error; (4) the trial court erred in finding HAC as to the murder of

Roach; (5) the trial court erred in finding CCP as to the murder of

Cowan; and (6) the trial court erred in denying defense counsel’s

motion for mistrial following an improper statement by a trial

witness. Id. at 922 n.3.

3. In Smithers’ initial postconviction appeal, he argued that

counsel was ineffective for failing to (1) strike a prospective juror for

cause; (2) seek exclusion of a portion of Smithers’ statement to law

enforcement; (3) adequately investigate mental health mitigation;

and (4) call an independent medical examiner as a defense expert.

Id. at 463.

Smithers raised five claims in his habeas petition: (1) the

constitutionality of rules prohibiting counsel from interviewing

jurors; (2) the jury was not adequately instructed on and counsel

was ineffective for failing to litigate the sufficiency of the jury

instructions; (3) Florida’s capital sentencing scheme was

unconstitutional as applied, and counsel was ineffective for failing

to litigate the issue; (4) cumulative error; and (5) Smithers may be

incompetent at the time of execution. Id. at 472-73.

-6-

v. Florida, 577 U.S. 92 (2016), and this Court’s decision on remand

in Hurst v. State, 202 So. 3d 40 (Fla. 2016), receded from in part by

State v. Poole, 297 So. 3d 487 (Fla. 2020). The circuit court denied

the motion, and this Court affirmed the circuit court’s denial of

relief. Smithers v. State, 244 So. 3d 152, 153 (Fla. 2018).

Smithers filed a federal habeas petition raising multiple

issues. Smithers v. Sec’y, Dep’t of Corr., No. 8:09-cv-2200-T-17EAJ,

2011 WL 2446576 (M.D. Fla. June 15, 2011). 4 The district court

denied each of Smithers’ claims and denied a certificate of

appealability. Subsequently, the United States Court of Appeals for

the Eleventh Circuit granted a limited certificate of appealability on

the matter of penalty phase ineffective assistance of counsel.

Smithers v. Sec’y, Fla. Dep’t of Corr., 501 F. App’x 906 (11th Cir.

4. Smithers’ federal habeas petition raised the following

issues: (1) erroneous denial of motion to sever; (2) erroneous denial

of motion to suppress; (3) Smithers’ improper absence from pretrial

hearing; (4) HAC challenge; (5) CCP challenge; (6) erroneous denial

of motion for mistrial; (7) guilt phase ineffective assistance of

counsel; (8) penalty phase ineffective assistance of counsel;

(9) challenge to validity of rules regarding juror interviews;

(10) erroneous penalty phase jury instructions; (11) challenge to the

constitutionality of Florida’s death penalty scheme; (12) cumulative

error; and (13) Smithers’ competency to be executed. Id. at *11-51.

-7-

2012). The court considered two issues (failure to provide mental

health expert with adequate background information and failure to

consult independent expert to refute testimony of the medical

examiner) and ultimately affirmed the denial of habeas relief. Id. at

909. The United States Supreme Court denied certiorari review.

Smithers v. Crews, 569 U.S. 935 (2013).

Governor Ron DeSantis signed Smithers’ death warrant on

September 12, 2025. On September 19, 2025, Smithers filed his

successive motion to vacate his sentences of death pursuant to

Florida Rule of Criminal Procedure 3.851. The motion raised one

claim, that at 72 years of age, his execution would constitute “cruel

and unusual punishment because of his advanced age and status

as elderly.” The circuit court conducted a Huff 5 hearing on

September 22, 2025, and summarily denied relief in an order dated

September 26, 2025.

Smithers timely appealed to this Court the denial of

postconviction relief. Here, his primary argument is that his

execution constitutes cruel and unusual punishment because of his

5. Huff v. State, 622 So. 2d 982 (Fla. 1993).

-8-

advanced age and status as elderly, and he discusses four subissues: (1) the circuit court erroneously denied the motion as

untimely and procedurally barred; (2) the circuit court erred in

concluding that the conformity clause and binding precedent

foreclose relief; (3) executing the elderly is inconsistent with our

evolving standards of decency; and (4) executing the elderly violates

federal and state constitutional prohibitions against cruel and

unusual punishment because such executions do not have a

deterrent or a retributive purpose. 6 However, we need not reach the

latter two sub-issues because sub-issues (1) and (2) are

determinative of Smithers’ appeal. We agree with the circuit court’s

conclusions that (1) Smithers’ claim is untimely and procedurally

barred, and (2) Smithers’ claim is foreclosed by Florida’s conformity

6. Smithers argues that executing him runs afoul of evolving

standards of decency that are relevant to an Eighth Amendment

analysis. To that end, he argues that the majority of states

(including Florida) have never executed a person 70 years of age or

older, and he points to Florida statutes that reflect a policy of

protecting the elderly. He also maintains that his execution, as an

elderly person who has served more than 26 years in prison, neither

serves as a deterrent nor has a retributive purpose. He argues that

the State’s interest in punishing him is satisfied by his continued

incarceration.

-9-

clause. Thus, we affirm the circuit court’s order summarily denying

Smithers’ successive motion seeking to vacate his sentences of

death.

II. ANALYSIS

Smithers has claimed neither intellectual disability nor

incompetency to be executed as bars to his execution. Rather, he

argues that because of his advanced age of 72 years, executing him

would constitute cruel and unusual punishment.

As is the case here, the “[s]ummary denial of a successive

postconviction motion is appropriate ‘[i]f the motion, files, and

records in the case conclusively show that the movant is entitled to

no relief.’ ” Owen v. State, 364 So. 3d 1017, 1022 (Fla. 2023)

(second alteration in original) (quoting Bogle v. State, 322 So. 3d 44,

46 (Fla. 2021)). We review the circuit court’s decision de novo,

“accepting the movant’s factual allegations as true to the extent

they are not refuted by the record, and affirming the ruling if the

record conclusively shows that the movant is entitled to no relief.”

Id. at 1022-23 (quoting Walton v. State, 3 So. 3d 1000, 1005 (Fla.

2009)). The circuit court did not err in summarily denying

Smithers’ claim.

- 10 -

1. Whether Smithers’ Claim Is Untimely and Procedurally

Barred

The circuit court correctly concluded that Smithers’

postconviction claim is untimely and procedurally barred. Under

rule 3.851(d)(1), “[a]ny motion to vacate judgment of conviction and

sentence of death must be filed by the defendant within 1 year after

the judgment and sentence become final.” Fla. R. Crim. P.

3.851(d)(1). Rule 3.851(d)(2) provides three exceptions to raising

postconviction claims outside of the one-year timeframe:

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

unknown to the movant or the movant’s attorney and

could not have been ascertained by the exercise of due

diligence, or

(B) the fundamental constitutional right asserted was not

established within the period provided for in subdivision

(d)(1) and has been held to apply retroactively, or

(C) postconviction counsel, through neglect, failed to file

the motion.

Fla. R. Crim. P. 3.851(d)(2)(A)-(C).

Smithers does not argue, nor do we conclude, that any of

these exceptions apply to his postconviction claim. Instead, he

argues that his postconviction claim only became ripe once the

- 11 -

Governor signed his death warrant on September 12, 2025. We

reject this argument. As the circuit court concluded:

Defendant’s assertion that his claim is predicated

upon his current age, and therefore could not have been

previously raised and only became ripe after the signing

of the death warrant, is unavailing. Defendant

essentially seeks a categorial [sic] exemption to execution

for the elderly, which he defines as those individuals age

sixty-five years or older. By that definition, his claim

became ripe when he turned sixty-five; therefore, he

could have or should have raised his claim in prior

proceedings rather than waiting until after the signing of

his death warrant.

Smithers’ argument that his claim is “predicated upon facts that

only exist or become relevant upon the signing of a death warrant”

is without merit. While Smithers is correct that he could not have

known exactly when his death warrant would be signed, he has

known for several years that upon the signing of his death warrant

and the exhaustion of any related successive postconviction

process, he would fall within the class of individuals that he now

seeks to exempt from execution due to advanced age. Thus, his

claim is untimely and fails to meet any exception provided in rule

3.851(d)(2). We affirm the circuit court’s ruling.

- 12 -

2. Whether Smithers’ Claim Is Precluded by Florida’s

Conformity Clause

Smithers argues that this Court should break new ground in

concluding that his execution, at 72 years of age, would constitute

cruel and unusual punishment in violation of the Eighth

Amendment and Florida’s corresponding constitutional provision,

article I, section 17. No opinion of the United States Supreme

Court or this Court has held that the elderly are categorically

exempt from execution. Even if Smithers’ claim was not untimely

or procedurally barred, we decline to extend the relief requested.

Presently, the United States Supreme Court—and this Court—

recognize only one age-based death penalty exemption, which

prohibits the imposition of the death penalty on individuals who

were under the chronological age of 18 at the time that their capital

crimes were committed. See Roper v. Simmons, 543 U.S. 551, 578

(2005).

Indeed, we recently stated:

Because the Supreme Court has interpreted the Eighth

Amendment to limit the exemption from execution . . .

based on age to those whose chronological age was less

than eighteen years at the time of their capital crime(s),

this Court is bound by those interpretations and is

precluded from interpreting Florida’s prohibition against

- 13 -

cruel and unusual punishment to exempt . . . those

whose chronological age was over eighteen years at the

time of their capital crime(s).

Gudinas v. State, 412 So. 3d 701, 713 (Fla.) (emphasis added), cert.

denied, 145 S. Ct. 2833 (2025). Thus, to the extent we view

Smithers’ argument as precluded by United States Supreme Court

precedent, we are bound by the conformity clause. 7 As we have

explained:

This means that the Supreme Court’s interpretation of

the Eighth Amendment is both the floor and the ceiling

for protection from cruel and unusual punishment in

Florida, and this Court cannot interpret Florida’s

prohibition against cruel and unusual punishment to

provide protection that the Supreme Court has decided is

not afforded by the Eighth Amendment.

Ford v. State, 402 So. 3d 973, 979 (Fla.) (quoting Barwick v. State,

361 So. 3d 785, 794 (Fla. 2023)), cert. denied, 145 S. Ct. 1161

(2025).

For his part, Smithers argues that his case is distinguishable

because the United States Supreme Court has not expressly

7. “The prohibition against cruel or unusual punishment, and

the prohibition against cruel and unusual punishment, shall be

construed in conformity with decisions of the United States

Supreme Court which interpret the prohibition against cruel and

unusual punishment provided in the Eighth Amendment to the

United States Constitution.” Art. I, § 17, Fla. Const.

- 14 -

addressed whether the elderly are exempt from execution and

maintains that as such, this Court may expand Eighth Amendment

protections to the execution of the elderly. However, we further

observed in Gudinas:

While the states are required to adhere to the Supreme

Court’s Eighth Amendment jurisprudence, neither the

Eighth nor Fourteenth Amendments require states to

expand the protections afforded by the Eighth Amendment

or to interpret their own corresponding state constitutional

prohibitions against cruel and unusual punishment in a

more expansive manner than the Supreme Court has

interpreted the federal prohibition.

412 So. 3d at 714 (emphasis added). Consistent with our analysis

in Gudinas, we reject Smithers’ invitation to expand the prohibition

against cruel and unusual punishment to include individuals 65

years of age and older, and we affirm the circuit court’s denial of

relief.

III. CONCLUSION

For these reasons, we affirm the denial of Smithers’ successive

motion to vacate his sentences of death.

No oral argument is necessary, no motion for rehearing will be

entertained by this Court, and the mandate shall issue

immediately.

- 15 -

It is so ordered.

MUÑIZ, C.J., and COURIEL, GROSSHANS, FRANCIS, and

SASSO, JJ., concur.

LABARGA, J., concurs in result.

CANADY, J., recused.

An Appeal from the Circuit Court in and for Hillsborough County,

Michelle Sisco, Judge – Case No. 291996CF008093000AHC

Eric Pinkard, Capital Collateral Regional Counsel, Melody JacquayAcosta, Assistant Capital Collateral Regional Counsel, Ann Marie

Mirialakis, Assistant Capital Collateral Regional Counsel, and

Mahham Syed, Assistant Capital Collateral Regional Counsel,

Middle Region, Temple Terrace, Florida,

for Appellant

James Uthmeier, Attorney General, Tallahassee, Florida, Rick A.

Buchwalter, Senior Assistant Attorney General, and Joshua E.

Schow, Assistant Attorney General, Tampa, Florida,

for Appellee

- 16 -

No. ______

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

SAMUEL LEE SMITHERS, JR.,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

___________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

_____________________________________________________________

APPENDIX TO THE PETITION FOR A WRIT OF CERTIORARI

______________________________________________________________

CAPITAL CASE

DEATH WARRANT SIGNED

Execution Scheduled: October 14, 2025, at 6:00 p.m. ET

_____________________________________________________________

APPENDIX B

Order of the Circuit Court for the Thirteenth Judicial Circuit,

Hillsborough County, Florida, denying postconviction relief (September 26, 2025)

IN THE THIRTEENTH JUDICIAL CIRCUIT COURT

FOR HILLSBOROUGH COUNTY, FLORIDA

Criminal Justice and Trial Division

STATE OF FLORIDA

v.

SAMUEL LEE SMITHERS,

Defendant.

___________ /

CASE NO.:

FSC NO.:

96-CF-008093

SC 1960-96690

DIVISION:

J

DEATH WARRANT SIGNED

EXECUTION SCHEDULED

OCTOBER 14, 2025 AT

6:00 P.M.

ORDER DENYING DEFENDANT'S SUCCESSIVE MOTION

TO VACATE DEFENDANT'S SENTENCE OF DEATH

THIS MATTER is before the Court on Defendant's Successive

Motion to Vacate Sentence of Death, filed on September 19, 2025,

pursuant to Florida Rule of Criminal Procedure 3.851. On September

22, 2025, the State filed its response. That same day, the Court also

held a case management conference/Huff1 hearing and determined

an evidentiary hearing was not warranted on the allegations raised

in Defendant's motion. After considering Defendant's motion, the

State's response, the arguments of counsels presented during the

September 22, 2025, case management conference, as well as the

1

Huffv. State, 622 So. 2d 982 (Fla. 1993).

Page 1 of 17

court file, record, and applicable statutes, rules of criminal

procedure, and case law, the Court finds as follows.

PROCEDURAL HISTORY

On December 18, 1998, a jury found Defendant guilty of two

counts of first-degree murder; on January 24, 1999, the jury

unanimously recommended a sentence of death on each count. On

June 25, 1999, the Court imposed a death sentence on each count.

The Florida Supreme Court affirmed Defendant's convictions and

death sentences, and issued its mandate on September 13, 2002.

See Smithers v. State, 826 So. 2d 916 (Fla. 2002). The United States

Supreme Court denied certiorari on February 24, 2003. Smithers v.

Florida, 537 U.S. 1203 (2003).

Defendant filed his initial motion for postconviction relief on

December 22, 2003, and subsequently filed an amended motion on

April 7, 2006. The postconviction court held an evidentiary hearing

on certain claims, and rendered its final order denying relief on

October 24, 2007. The Florida Supreme Court affirmed. See Smithers

v. State, 18 So. 3d 460 (Fla. 2009).

Defendant then filed a federal petition for writ of habeas corpus,

and his petition was denied on June 15, 2011. See Smithers v. Sec'y

Page 2 of 17

Dep't of Corr., No. 8:09-CV-2200-T-l 7EAJ, 2011 WL 2446576 (M.D.

Fla. June 15, 2011). Ultimately, the Eleventh Circuit Court of Appeals

affirmed the denial of his federal habeas petition. Smithers v. Sec'y,

Fla. Dept. of Corr., 501 F. App'x. 906 (11th Cir. 2012). The United

States Supreme Court denied certiorari on April 15, 2013. See

Smithers v. Crews, 569 U.S. 935 (2013).

Defendant filed his first successive motion for postconviction

relief on January 9, 2017, and the Court summarily denied his

motion on June 15, 2017. The Florida Supreme Court again affirmed.

See Smithers v. State, 244 So. 3d 152 (Fla. 2018).

On September 12, 2025, the Governor signed a death warrant

for the execution of Defendant at 6:00 p.m. on Tuesday, October 14,

2025. The Florida Supreme Court issued a scheduling order directing

the Court to complete all trial court proceedings by 11 :00 a.m. on

Friday, September 26, 2025. Defendant now files his second

successive motion for postconviction relief.

SUCCESSIVE MOTION

In the instant successive motion, Defendant raises one claim.

He also requests leave to amend his motion as necessary, a stay of

execution, and that the Court vacate his death sentences.

Page 3 of 17

CLAIM

THE EXECUTION OF SMITHERS IS CRUEL AND

UNUSUAL PUNISHMENT BECAUSE OF HIS ADVANCED

AGE AND STATUS AS ELDERLY, IN VIOLATION OF THE

EIGHTH AMENDMENT OF THE UNITED STATES

CONSTITUTION AND CORRESPONDING PROVISIONS

OF THE FLORIDA CONSTITUTION.

Argument and Response

Defendant, who is seventy-two years old, alleges that execution

of the elderly violates the Eighth Amendment of the United States

and the corresponding provisions of the Florida Constitution. He

contends his execution "offends the evolving standards of decency

and is cruel and unusual punishment."

As "objective indicia of society's standards," Defendant cites to

"legislative enactments and state practice." He argues that Florida

laws evince a "clear and expressed consensus of protecting the

elderly," which he defines as age sixty-five or older for purposes of

the instant motion, and cites legislation that provides for enhanced

punishment for offenders and reclassification of offenses when the

victim is over age sixty-five, protects the elderly from exploitation,

and allows those age seventy or older to be permanently excused from

jury service. Defendant asserts he "falls squarely within this class of

Page 4 of 17

people Florida legislation recognizes as elderly persons it seeks to

protect" via such statutes. He posits that Florida legislation "reflects

evolving standards of decency reject the execution of the elderly."

Defendant further contends his execution constitutes cruel and

unusual punishment as the two stated purposes of the death penalty,

retribution and deterrence, "are no longer accomplished by the

execution of the elderly." He cites to the reasoning in Ford v.

Wainwright, 477 U.S. 399 (1986), Atkins v. Virginia, 536 U.S. 304

(2002), and Roper v. Simmons, 543 U.S. 551 (2005), and argues that

an execution that has no deterrent or retributive value "amounts to

nothing more than exacting mindless vengeance, offending the

dignity of society." He argues, "It is illogical to conclude that the

execution of a prisoner who is elderly and has been incarcerated for

more than 26 years serves as either a deterrent or retributive

purpose."

Defendant also notes the rarity of executions of the elderly. He

cites to and attaches statistics from the Death Penalty Information

Center, which reflect that of the 1,638 post-Furman executions, only

forty-one (2.5%) of those executed prisoners were age sixty-five or

older, and only sixteen (1%) were over the age of seventy. Defendant

Page 5 of 17

concludes that "[t]he objective evidence would suggest and support

that rarity of the execution of the elderly reflects the evolved

standards and supports the finding of the unusual nature of

executing the elderly."

Finally, Defendant contends the effect that aging has had on

him "is especially underscored given the mental health and brain

damage testimony presented during the penalty phase," specifically,

the abnormal findings of his PET scan which showed brain damage

and other indications of impairment from brain injury. He asserts

that on September 18, 2025, he was evaluated by Dr. Hyman

Eisenstein, who opined he had further cognitive decline and that his

full-scale IQ score dropped to 103 from his initial score of 111 1n

1997. Dr. Eisenstein further opined, "Mr. Samuel Smithers 1s

currently presenting with an insidious decline of mental function

which will progress to a state of dementia."

Defendant asserts he is not alleging he is intellectually disabled,

but argues that evidence of his cognitive decline due to advanced age

should be weighed by this Court, and that such evidence "further

supports the conclusion that his execution would amount to cruel

and unusual punishment in violation of the Eighth Amendment."

Page 6 of 17

In response, the State asserts Defendant's claim is untimely,

procedurally barred, and without merit, and should be summarily

denied. The State claims that based on Defendant's allegations, his

claim became ripe when he turned sixty-five years old on January

30, 2018, but he did not raise his claim for another six years, until

after the signing of the death warrant. The State contends Defendant

does not allege and his claim does not fall within any of the

exceptions to the time limitation set forth in rule 3.851(d).

The State further argues that the only new information alleged

by Defendant is Dr. Eisenstein's September 18, 2025, evaluation, but

Defendant does not claim it is newly discovered evidence, and

Defendant has further "failed to demonstrate that he exercised any

due diligence in procuring" such an evaluation or that the evaluation

would probably produce an acquittal or lesser sentence on retrial.

The State also asserts Defendant's claim is "foreclosed by

binding precedent" and cites the conformity clause of the Florida

Constitution as well as the lack of any Supreme Court decision

recognizing

"that individuals

over

the

age

of sixty-five

are

categorically exempt from execution." The State contends Defendant

Page 7 of 17

has further failed to demonstrate there is a '"national consensus'

against executing individuals who are of advanced age."

Finally, the State contends Defendant's allegation regarding his

cognitive decline has no "constitutional significance" and is

conclusively refuted by the record. The State asserts Defendant's

"cognitive capacity has remained relatively stable" over the past

twenty-six years as Dr. Berland testified during the penalty phase

that the WAIS test he administered overestimated Defendant's IQ

score of 111 and, if he had administered the WAIS-III, Defendant's

full-scale IQ would have been 103-104.

Analysis and Finding

The Court finds Defendant is not entitled to the relief he seeks,

and agrees with the State's response.

First, Defendant's claim is untimely and procedurally barred.

Defendant filed his claim more than one year after his judgment and

sentence became final, and he does not allege or demonstrate that

his claim falls within any of the exceptions to the time limitations as

set forth in rule 3.851 (d)(2). Although he cites to a neuropsychological

evaluation conducted by Dr. Eisenstein on September 18, 2025,

Defendant does not allege that the evaluation constitutes newly

Page 8 of 17

discovered evidence, and he fails to demonstrate that he could not

have previously obtained the evaluation through the exercise of due

diligence or that Dr. Eisenstein's finding of cognitive decline would

result in a less severe sentence on retrial. Defendant further does not

seek application of a newly recognized fundamental right or allege

any neglect on the part of counsel.

Defendant's assertion that his claim is predicated upon his

current age, and therefore could not have been previously raised and

only became ripe after the signing of the death warrant, is unavailing.

Defendant essentially seeks a categorial exemption to execution for

the elderly, which he defines as those individuals age sixty-five years

or older. By that definition, his claim became ripe when he turned

sixty-five; therefore, he could have or should have raised his claim in

prior proceedings rather than waiting until after the signing of his

death warrant. See Fla. R. Crim. P. 3.851(d); Gudinas v. State, 412

So. 3d 701, 714 (Fla. 2025) ("Post-warrant claims that could have

been raised in a prior proceeding are procedurally barred."); Rogers

v. State, 409 So. 3d 1257, 1263 (Fla. 2025) ("[I]n an active warrant

case, a postconviction claim that could have been raised in a prior

proceeding is procedurally barred.").

Page 9 of 17

Second, Defendant's claim lacks merit. The Court agrees with

the State's assertion that Defendant is not entitled to relief because

his claim seeking an age-based categorical bar to execution of the

elderly is foreclosed by application of the conformity clause and

binding precedent. See e.g., Gudinas, 412 So. 3d at 713; Barwick v.

State, 361 So. 3d 785, 794 (Fla. 2023).

Even if his claim were not foreclosed, Defendant would not be

entitled to relief. Defendant has not identified any opinion of the

United States Supreme Court, a Florida court, or a court of any state

or federal jurisdiction that holds the elderly are categorically exempt

from execution. He also fails to cite to a single statute in any state

which bars the execution of a defendant over the age of sixty-five or

of any advanced age. As to Defendant's reliance on Florida's laws, the

Court finds persuasive the State's argument that the enactment of

Florida legislation providing "additional protection for law-abiding

individuals of advanced age says nothing" about how societies view

the appropriateness of executing defendants of advanced age.

Defendant's assertion that the paucity of executions of persons

over the age of sixty-five or seventy evinces evolving standards of

decency is conclusory and, as the State notes, "fails to suggest, let

Page 10 of 17

alone prove, that there is a national consensus against carrying out

the death penalty due to the offenders' advanced age." Defendant has

failed to allege any "direct evidence of a societal aversion to executing

the

elderly,

such

as

evidence

demonstrating

that

Junes

disproportionately elect not to impose the death penalty for elderly

offenders, or that governors are more likely to commute death

sentences of older prisoners or that any State has legislated against

the execution of the elderly and infirm." Allen v. Omoski, 435 F.3d

946, 954 (9th Cir. 2006) (addressing similar claim that due to

defendant's age and infirmities, his execution would violate the

Eighth Amendment). Defendant's conclusion also fails to take into

account other reasons for the rarity of executions of the elderly, such

as the possibility that "more elderly persons die on death row before

their appeals are exhausted." Id. Accordingly, Defendant has failed

to demonstrate that evolving standards of decency prohibit execution

of the elderly.

The Court further notes Defendant's arguments are not

supported by the Supreme Court's reasoning in Roper, Atkins, and

Ford. In Roper, the Supreme Court explained that the "death penalty

may not be imposed on certain classes of offenders, such as juveniles

Page 11 of 17

. . . , the insane, and the [intellectually disabled], no matter how

heinous the crime. These rules vindicate the underlying principle

that the death penalty is reserved for a narrow category of crimes and

offenders." 543 U.S. at 551 (internal citations omitted) (citing Ford,

477 U.S. 399, and Atkins, 536 U.S. 304). In Atkins, the Supreme

Court reasoned that intellectually disability "diminishes personal

culpability even if the offender can distinguish right from wrong,"

which makes it "less defensible to impose the death penalty as

retribution for past crimes and less likely that the death penalty will

have a real deterrent effect." Roper, 543 U.S. at 563. Similarly, the

Supreme Court concluded that there was no "retributive value" in

allowing the execution of the insane, someone "who has no

comprehension of why he has been singled out and stripped of his

fundamental right to life." Ford, 477 U.S. at 409.

The classes of persons in those cases all had characteristics

that rendered them less culpable and also undermined the death

penalty's purposes of retribution and deterrence. For that reason,

those classes of persons are exempt from execution. The fact that

Defendant is of advanced age does not diminish the retributive value

of the death penalty in his case, or undermine its deterrent effect, in

Page 12 of 17

the same manner that a person's status as a juvenile or insane

would.

As further support for his claim that he falls within a class of

persons that should be shielded from execution, Defendant urges the

Court to consider Dr.

Eisenstein's recent findings.

Although

Defendant alleges Dr. Eisenstein found his cognitive abilities have

declined, Dr. Eisenstein found his full-scale IQ score still placed

Defendant within the average range of intellectual functioning.

Significantly, Defendant does not allege he is intellectually disabled

or incompetent to be executed. Therefore, his advanced age and

purported cognitive decline do not place him in a class of persons

less culpable at the time of the offenses and do not affect the death

penalty's purposes of retribution and deterrence.2

2 Moreover, as the State notes in its response, during the penalty

phase, Dr. Berland testified that he utilized the WAIS test as a

measurement of brain impairment and noted, "WAIS relative to

current standards overestimates" IQ and with "the WAIS3, he would

be expected to probably come out with a full scale IQ of somewhere

around 103, 104." DAT: 1732; 1778. Thus, Defendant's claim of

cognitive decline based on the difference between his 1997 WAIS fullscale IQ score of 111 and his September 18, 2025, WAIS-III full-scale

score of 103 is also refuted by the record.

Page 13 of 17

Even if the Court considered Defendant's cognitive decline, the

Court agrees with the State that such cognitive decline does not hold

"constitutional significance." See e.g., Dillbeck v. State, 357 So. 3d

94, 100 (Fla. 2023) (noting the court has "long held that the

categorical bar of Atkins that shields the intellectually disabled from

execution does not apply to individuals with other forms of mental

illness or brain damage."); James v. State, 404 So. 3d 317, 325 (Fla.

2025) ("[W]ith respect to James's pattern of cognitive decline - a

matter which the State generally does not dispute - we agree with the

circuit court that James's cognitive issues do not shield him from

execution .... "); Gudinas, 412 So. 3d at 713 ("Because the Supreme

Court has interpreted the Eighth Amendment to limit the exemption

from execution based on mental functioning to those who are

intellectually disabled or insane . . . this Court is bound by those

interpretations

and

is

precluded

from

interpreting

Florida's

prohibition against cruel and unusual punishment to exempt

individuals from execution whose mental or cognitive issues do not

rise to the level of intellectual disability .... ").

Defendant's claim that execution of the elderly, and his

execution as a person of advanced age with cognitive decline,

Page 14 of 17

constitute cruel and unusual punishment in violation of the Eighth

Amendment is untimely, procedurally barred, and meritless. No relief

is warranted on Defendant's successive motion.

ORDER

It is therefore ORDERED AND ADJUDGED that Defendant's

Successive Motion to Vacate Defendant's Sentence of Death is hereby

DENIED.

Pursuant to the Florida Supreme Court's September 12, 2025,

scheduling order, Defendant's notice of appeal shall be filed by 1 :00

p .m., Friday, September 26, 2025.

DONE AND ORDERED in Chambers at Tampa, in Hillsborough

County, Florida, thisd (o

"m-

of September, 2025.

l g:Js:{fl,1 ~

MICHELLE SISCO

Circuit Judge

Copies to:

Eric C. Pinkard, Capital Collateral Regional Counsel - Middle Region

Pinkard@ccmr. state .fl. us

Ann Marie Mirialakis, Assistant CCRC-M

Mirialakis@ccmr.state.fl.us

Melody Jacquay-Acosta, Assistant CCRC-M

J acquay@ccmr. state .fl.us

Page 15 of 17

Mahham Syed, Assistant CCRC-M

Syed@ccmr.state.fl.us

CCRC-M

support@ccmr.state.fl.us

John Terry, Assistant State Attorney

terry j@sao13th.com

Ron Gale, Assistant State Attorney

Gale R@sao13th.com

Office of the State Attorney

mailprocessingstaff@sao 13th. com

sauers c@sao13th.com

Rick Buchwalter, Senior Assistant Attorney General

rick. buchwalter@myfloridalegal.com

Joshua Schow, Assistant Attorney General

joshua. schow@myfloridalegal.com

Office of the Attorney General

capapp@myfloridalegal.com

paula.montlary@myfloridalegal.com

arianna. balda@myfloridalegal.com

elizabeth. bueter@myfloridalegal.com

William Gwaltney, Assistant General Counsel

William. Gwaltney@fdc.myflorida.com

Kristen Lonergan, Executive Senior Attorney

Kristen.Lonergan@fdc.myflorida.com

Florida Department of Corrections

courtfilings@fdc.myflorida.com

Lindsey Brigham, Esquire

lindseybrigham@fdle. state.fl. us

Page 16 of 17

Aileen Shaw, Director, Criminal Courts

Shawa@hillsclerk.com

Larisa Reid, Appeals Manager

larisa. reid@hillsclerk. com

Court Reporter

reporters@fljud13.org

Ashley Hulme, Court Reporter

HULMEAJ@fljud13.org

The Florida Supreme Court

warrant@flcourts.org

Page 17 of 17