Opposition Brief — Richard Barry Randolph, Petitioner v. Florida, et al.
Supreme Court briefNov 19, 2025
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No. 25-6133
IN THE
SUPREME COURT OF THE UNITED STATES
RICHARD BARRY RANDOLPH,
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 NOV. 20, 2025, AT 6:00 P.M.
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
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
SCOTT A. BROWNE
Chief Assistant Attorney General
Counsel of Record
JENNIFER A. DAVIS
Senior Assistant Attorney General
CHRISTINA Z. PACHECO
Special Counsel, Asst. Attorney General
COUNSEL FOR RESPONDENT
CAPITAL CASE
QUESTIONS PRESENTED
I.
Whether certiorari is warranted where the Florida Supreme Court determined
that Randolph was not entitled to relief on his untimely as-applied challenge to
Florida's lethal injection protocol that was based on his lifelong condition of
lupus and was procedurally barred under well-established and routinely
followed Florida law.
II.
Whether certiorari is warranted where the Constitution confers no right to any
particular clemency procedure.
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iii
OPINION BELOW ......................................................................................................... 1
JURISDICTION............................................................................................................. 1
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY ................................. 2
REASONS FOR DENYING THE PETITION .............................................................. 9
I.
The Florida Supreme Court correctly determined that Randolph was
not entitled to relief on his untimely as-applied challenge to Florida’s lethal
injection protocol that was based on his lifelong condition of lupus. ................ 9
II.
Randolph fails to identify any constitutional deficiency in Florida’s
clemency process. .............................................................................................. 22
CONCLUSION............................................................................................................. 24
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Bates v. State,
416 So. 3d 312 (Fla. 2025) .................................................................................... 7, 24
Baze v. Rees,
553 U.S. 35 (2008) ..................................................................................................... 19
Braxton v. United States,
500 U.S. 344 (1991) ................................................................................................... 17
Bucklew v. Precythe,
587 U.S. 119 (2019) ....................................................................................... 19, 20, 22
Cole v. Florida,
145 S. Ct. 109 (2024) ................................................................................................. 14
Cole v. State,
392 So. 3d 1054 (Fla. 2024) ...................................................................................... 10
Coleman v. Thompson,
501 U.S. 722 (1991) ................................................................................................... 12
Correll v. State,
184 So. 3d 478 (Fla. 2015) ........................................................................................ 22
Florida v. Powell,
559 U.S. 50 (2010) ....................................................................................................... 9
Foster v. Chatman,
578 U.S. 488 (2016) ..................................................................................................... 9
Fox Film Corp. v. Muller,
296 U.S. 207 (1935) ................................................................................................... 12
Gissendaner v. Comm'r, Georgia Dep’t of Corr.,
779 F.3d 1275 (11th Cir. 2015) ................................................................................. 13
Glossip v. Gross,
576 U.S. 863 (2015) ....................................................................................... 19, 20, 22
Hannon v. State,
228 So. 3d 505 (Fla. 2017) ........................................................................................ 21
Henyard v. Sec’y, Dept. of Corr.,
543 F.3d 644 (11th Cir. 2008) ................................................................................... 13
Herb v. Pitcairn,
324 U.S. 117 (1945) ..................................................................................................... 9
iii
Herrera v. Collins,
506 U.S. 390 (1993) ................................................................................................... 25
Hill v. California,
401 U.S. 797 (1971) ................................................................................................... 16
Huff v. State,
622 So. 2d 982 (Fla. 1993) .......................................................................................... 6
Hurst v. Florida,
577 U.S. 92 (2016) ....................................................................................................... 5
Hurst v. State,
202 So. 3d 40 (Fla. 2016) ............................................................................................ 5
Hutchinson v. State,
416 So. 3d 273 (Fla. 2025) .......................................................................................... 8
Illinois v. Gates,
462 U.S. 213 (1983) ................................................................................................... 18
In re Ohio Execution Protocol,
860 F.3d 881 (6th Cir. 2017) ..................................................................................... 22
Jennings v. State,
50 Fla. L. Weekly S289 (Fla. Nov. 6),
cert. denied, No. 25-6061, 2025 WL 3157365 (U.S. Nov. 12, 2025) ......................... 24
Jeter v. Sec’y, Fla. Dep’t of Corr.,
479 F. App’x 286 (11th Cir. 2012) ............................................................................ 12
Jimenez v. State,
265 So. 3d 462 (Fla. 2018) ........................................................................................ 21
Johnson v. Lee,
578 U.S. 605 (2016) ............................................................................................. 12, 13
Long v. State,
271 So. 3d (2019) ................................................................................................. 21, 22
McCoy v. Louisiana,
584 U.S. 414 (2018) ................................................................................................. 7, 8
McNair v. Allen,
515 F.3d 1168 (11th Cir. 2008) ................................................................................. 13
Michigan v. Long,
463 U.S. 1032 (1983) ................................................................................................. 12
Mungin v. State,
320 So. 3d 624 (Fla. 2020) ........................................................................................ 11
Nelson v. Campbell,
541 U.S. 637 (2004) ................................................................................................... 13
iv
Ohio Adult Parole Auth. v. Woodard,
523 U.S. 272 (1998) ................................................................................................... 24
Porter v. McCollum,
130 S. Ct. 447 (2009) ................................................................................................... 5
Randolph v. Crosby,
861 So. 2d 430 (Fla. 2003) .......................................................................................... 5
Randolph v. Florida,
142 S. Ct. 905 (2022) ................................................................................................... 6
Randolph v. Florida,
498 U.S. 992 (1990) ..................................................................................................... 4
Randolph v. McNeil,
590 F.3d 1273 (11th Cir. 2009) ................................................................................... 5
Randolph v. State,
91 So. 3d 782 (Fla. 2012) ............................................................................................ 5
Randolph v. State,
320 So. 3d 629 (Fla. 2021) .......................................................................................... 6
Randolph v. State,
403 So. 3d 206 (Fla. 2024) .......................................................................................... 6
Randolph v. State,
562 So. 2d 331 (Fla. 1990) ............................................................................ 2, 3, 4, 25
Randolph v. State,
853 So. 2d 1051 (Fla. 2003) ........................................................................................ 4
Randolph v. State,
No. SC2025-1722, 2025 WL 3170826 (Fla. Nov. 13, 2025) .. 1, 2, 7, 8, 11, 14, 19, 23,
24
Reynolds v. State,
373 So. 3d 1124 (Fla. 2023) ...................................................................................... 15
Ring v. Arizona,
536 U.S. 584 (2002) ..................................................................................................... 5
Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,
482 U.S. 182 (1987) ................................................................................................... 17
Rogers v. Florida,
145 S. Ct. 2695 (2025) ............................................................................................... 14
Rogers v. State,
409 So. 3d 1257 (Fla. 2025) ................................................................................ 10, 15
Sochor v. Florida,
504 U.S. 527 (1992) ................................................................................................... 12
v
Street v. New York,
394 U.S. 576 (1969) ................................................................................................... 16
Tanzi v. State,
407 So. 3d 385 (Fla. 2025) .................................................................................... 8, 10
Wainwright v. Sykes,
433 U.S. 72 (1977) ..................................................................................................... 12
Walker v. Martin,
562 U.S. 307 (2011) ................................................................................................... 11
Zack v. State,
371 So. 3d 335 (Fla. 2023) ........................................................................................ 10
Statutes
28 U.S.C. § 1257 ............................................................................................................. 1
28 U.S.C. § 1983 ........................................................................................................... 13
28 U.S.C.A. § 2244(b)(2)(A)(B)(i) ................................................................................. 13
28 U.S.C.A. § 2244(d)(1) .............................................................................................. 13
U.S. Const. amend. VIII ................................................................................................ 1
U.S. Const. amend. XIV ................................................................................................. 1
U.S. Const. art. VI, cl. 2 ................................................................................................. 1
§ 95.11 (5), Fla. Stat. (2025) ........................................................................................ 13
Rules
Fla. R. Crim. P. 3.851(d)(1)...................................................................................... 9, 10
Fla. R. Crim. P. 3.851(d)(2).......................................................................................... 10
Fla. R. Crim. P. 3.851(e)(2) .......................................................................................... 14
vi
OPINION BELOW
The decision below of the Florida Supreme Court appears as Randolph v. State,
No. SC2025-1722, 2025 WL 3170826 (Fla. Nov. 13, 2025).
JURISDICTION
Richard Barry Randolph asserts that this Court’s jurisdiction is based upon 28
U.S.C. § 1257. The State of Florida agrees that this statute sets out the scope of this
Court’s certiorari jurisdiction, but for reasons outlined below, it asserts that this case
is inappropriate for the exercise of this Court’s discretionary jurisdiction.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The Eighth Amendment to the United State Constitution provides in
part that “cruel and unusual punishments [shall not be] inflicted.” U.S. Const. amend.
VIII.
The Fourteenth Amendment to the United States Constitution provides
in part that “. . . No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws . . .” U.S. Const. amend.
XIV.
The Supremacy Clause provides that “[t]his Constitution, and the Laws of
the United States . . . shall be the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
1
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Petitioner, Richard Barry Randolph, is an inmate in the custody of the Florida
Department of Corrections who was sentenced to death for the 1988 first-degree
murder of Minnie Ruth McCollum in Palatka, Florida. Randolph v. State, 562 So. 2d
331 (Fla. 1990). Over the last thirty-five years since the murder, Randolph has
unsuccessfully challenged his convictions and sentences through his direct appeal,
five postconviction motions, with two evidentiary hearings, and a federal habeas
petition, none of which were successful.
On October 21, 2025, Governor Ron DeSantis signed a death warrant with the
execution set for November 20, 2025. On October 28, 2025, Randolph filed his fourth
successive postconviction motion, which was summarily denied. He appealed and the
Florida Supreme Court affirmed the denial of relief. Randolph v. State, No. SC20251722, 2025 WL 3170826 (Fla. Nov. 13, 2025).
Convictions and Death Sentence
Facts of the Crime
On the morning of August 15, 1988, Minnie Ruth McCollum, manager of a
Handy-Way convenience store was brutally beaten, strangled, stabbed, and sexually
assaulted by Randolph, a former employee of the store. Randolph, 562 So. 2d at 33233.
Responding deputies forced entry into the store and found McCollum lying on
her back, naked from the waist down, with blood pooling from the back of her head
and neck and a knife beside her head. Id. She was still alive but only barely breathing
and moaning when officers arrived. Id.
2
Upon arrival at the hospital, McCollum was nonresponsive. Id. Her head was
“massively beaten and contused,” with multiple lacerations across the scalp, face, and
neck, and a fractured jawbone. Id. Knife wounds to the left side of the neck caused a
hematoma around the heart, and there was also a stab wound near the left eye. Id.
McCollum remained in a coma for six days before dying from her injuries. Id.
After Randolph was apprehended, he confessed to the attack, providing a
graphic and detailed account of the assault. Id. at 333-34. He admitted that he rode
his bicycle to the store intending to rob it with a toy gun, knowing from his prior
employment that approximately $1,000 was in the safe. Id. at 334. When McCollum
unexpectedly returned and caught him, he attacked her. Randolph said that she was
“a lot tougher than he had expected.” Id. Randolph forced her into the back room and
beat her with his hands and fists until she “quieted down,” but when she began to
move again, he strangled her with the drawstring from his sweatshirt until she
stopped struggling. Id.
When McCollum made noise, Randolph beat her again, then stabbed her, and
tightened the string around her neck to silence her. Id. And to make the crime appear
as though it had been committed by “a maniac,” Randolph raped her. Id. Before
leaving, he donned a Handy-Way uniform, ripped the store’s video camera from its
mount, locked the store door behind him, and took McCollum’s keys and car. Id.
The jury found Randolph guilty of first-degree murder, armed robbery, and
sexual battery. Id. at 332.
3
At the end of the penalty phase, the jury recommended the death penalty by a
vote of eight to four. Id. at 332. The judge accepted the jury recommendation and
imposed a sentence of death. The trial court found four aggravating factors: (1) the
crime was committed while engaged in the commission or flight after commission of
a sexual battery; (2) the crime was committed for the purpose of avoiding or
preventing a lawful arrest; (3) the crime was committed for pecuniary gain; and (4)
the crime was especially heinous, atrocious, or cruel. Id.
The Florida Supreme Court affirmed Randolph’s convictions and sentence, and
this Court denied certiorari. Randolph v. Florida, 498 U.S. 992 (1990).
Prior State and Federal Collateral Proceedings
On April 6, 1992, Randolph filed his first motion for postconviction relief, which
was amended several times. Randolph v. State, 853 So. 2d 1051, 1055 (Fla. 2003).
After conducting two separate evidentiary hearings on Randolph’s amended motions,
the circuit court denied postconviction relief. Randolph appealed, presenting seven
issues for review before the Florida Supreme Court, along with a companion habeas
petition that raised five claims. Id. at 1055.
The court found several of Randoph’s claims to be either procedurally barred,
facially or legally insufficient, or clearly without merit as a matter of law. Id. The
Florida Supreme Court affirmed the denial of postconviction relief and denied the
petition for a writ of habeas corpus. Id. at 1069.
On June 16, 2003, Randolph filed another habeas petition in the Florida
Supreme Court, asserting a claim under Ring v. Arizona, 536 U.S. 584 (2002). The
4
Florda Supreme Court denied relief in an unpublished opinion. Randolph v. Crosby,
861 So. 2d 430 (Fla. 2003).
Federal Habeas Proceedings
Randolph subsequently sought federal habeas relief with the United States
District Court for the Middle District of Florida, which denied the petition. Randolph
v. McNeil, 590 F.3d 1273, 1275 (11th Cir. 2009). The United States Court of Appeals
for the Eleventh Circuit affirmed the denial of relief, and this Court denied certiorari.
Randolph v. McNeil, 562 U. S. 1006 (2010).
Additional Successive Postconviction Proceedings
On November 23, 2010, Randolph filed a successive motion for postconviction
relief alleging this Court’s decision in Porter v. McCollum, 130 S. Ct. 447 (2009),
created a change in Florida’s Strickland jurisprudence that required consideration
and granting of Randolph’s postconviction claims. On March 7, 2011, the circuit court
denied the motion as untimely, successive, procedurally barred, and failing to raise
any new retroactive claims. The Florida Supreme Court affirmed the denial of relief.
Randolph v. State, 91 So. 3d 782 (Fla. 2012) (mem.).
On January 10, 2017, Randolph filed a second successive motion for
postconviction relief raising four claims based on Hurst v. Florida, 577 U.S. 92 (2016)
(Hurst I), and Hurst v. State, 202 So. 3d 40 (Fla. 2016). Randolph later amended the
motion to include a fifth claim, alleging his sentence violated the Eighth Amendment.
Randolph v. State, 320 So. 3d 629, 630 (Fla. 2021). On December 31, 2019, the trial
5
court summarily denied relief, and the Florida Supreme Court affirmed. Id. at 631.
This Court denied certiorari. Randolph v. Florida, 142 S. Ct. 905 (2022).
On October 1, 2023, Randolph filed a third successive postconviction motion
claiming that the identities of his birth parents constituted newly discovered
mitigation evidence. Randolph v. State, 403 So. 3d 206, 208 (Fla. 2024). The circuit
court summarily denied Randolph’s motion, and the Florida Supreme Court affirmed.
Id.
State Proceedings Under Warrant
On October 21, 2025, Governor Ron DeSantis signed Randolph’s death
warrant, scheduling the execution for November 20, 2025. This prompted Randolph
to file demands for additional public records, and his fourth successive postconviction
motion accompanied by a motion to stay his execution. Randolph’s successive motion
raised the following three claims: (1) an as-applied challenge to the method of
execution because of the progression of his lupus; (2) Florida’s warrant process
violated his substantive and due process rights under the Fifth and Fourteenth
Amendments; and (3) the clemency proceedings violated his due process and equal
protection
rights
under
the
Fourteenth
Amendment.
After
the
Case
Management/Huff1 hearing the circuit court summarily denied Randolph’s claims
finding them untimely, procedurally barred, and without merit.
Randolph appealed the circuit court’s denial of postconviction relief to the
Florida Supreme Court and contemporaneously filed a petition for writ of habeas
1 Huff v. State, 622 So. 2d 982 (Fla. 1993).
6
corpus claiming for the first time since his convictions and sentence became final,
that his attorney conceded his guilt during his trial in violation of McCoy v.
Louisiana, 584 U.S. 414, 420 (2018). The Florida Supreme Court affirmed the denial
of Randolph’s fourth successive motion for postconviction relief, denied his habeas
petition, and denied his motion for stay of execution. Randolph v. State, No. SC20251722, 2025 WL 3170826, at *2 (Fla. Nov. 13, 2025).
The Florida Supreme Court found Randolph’s as-applied method-of-execution
claim untimely. Id. at *10 (citing Bates v. State, 416 So. 3d 312, 321 (Fla. 2025)). The
court highlighted that Randolph had conceded that he was diagnosed with lupus in
1990, and the current three-drug protocol has remained essentially unchanged since
2017. Thus, the facts on which this claim was predicated have been available since at
least 2017, and Randolph could have raised this claim earlier but failed to do so. Id.
at *10-11. The court also found that Randolph’s claim lacked merit. The court
specifically determined that neither of Randolph’s proposed alternative methods
could be readily implemented, nor do they significantly reduce the substantial risk of
severe pain. Id.
The Florida Supreme Court also rejected Randolph’s claim that a 30-day
warrant period violated his due process rights. Id. at *12; see also Bates v. States,
416 So. 3d 312, 321 (rejecting argument that a thirty-day warrant period—coupled
with the denial of all demanded public records—deprived the defendant of due
process and right to counsel); Tanzi v. State, 407 So. 3d 385, 390 (Fla. 2025) (rejecting
due-process challenge despite “the truncated warrant period and the denial of his
7
public records requests”); Hutchinson v. State, 416 So. 3d 273, 279-80 (Fla. 2025)
(rejecting due-process challenge where, despite condensed warrant period, defendant
had fair opportunity to raise claims and advance argument in support of them).
The court found Randolph’s third claim that Florida’s clemency process
violated federal and state constitutions without merit. Id. at *13. The court rejected
Randolph’s argument that capital defendants have a right to an updated
investigation when there has been a significant lapse of time between the original
investigation and the denial of clemency. Id.
Randolph’s final claim was that he was entitled to public records related to the
state’s lethal injection protocol and past executions. Applying a deferential abuse-ofdiscretion standard of review, the Florida Supreme Court affirmed the circuit court’s
denial of the public records. Id. at *8.
The Florida Supreme Court also denied Randolph’s petition for writ of habeas
corpus that alleged an error under McCoy v. Louisiana, 584 U.S. 414, 420 (2018). The
court found the claim untimely and procedurally barred.
Randolph now seeks certiorari with this Court, but he has failed to identify
any grounds that would warrant this Court’s review. His petition should, therefore,
be denied.
8
REASONS FOR DENYING THE PETITION
I.
The Florida Supreme Court correctly determined that Randolph
was not entitled to relief on his untimely as-applied challenge to
Florida’s lethal injection protocol that was based on his lifelong
condition of lupus.
Randolph challenges the Florida Supreme Court’s affirmance of the summary
denial of his method-of-execution claim based on lupus. The state courts found
Randolph’s claim time barred under state law. The time bar alone is reason enough
for this Court to deny review.
When both state and federal questions are involved in a state court proceeding,
this Court has no jurisdiction to review the case if the state court judgment rests on
a state law ground that is both independent of the merits of the federal claim and an
adequate basis for the court’s decision. Foster v. Chatman, 578 U.S. 488, 497 (2016).
This “independent and adequate state ground” rule stems from the fundamental
principle that the Court lacks jurisdiction to review matters of state law. See Herb v.
Pitcairn, 324 U.S. 117, 125–26 (1945). If a state court’s decision is based on separate
state law, this Court “of course, will not undertake to review the decision.” Florida v.
Powell, 559 U.S. 50, 57 (2010). This Court should not review the Florida Supreme
Court’s decision when Randolph’s claim was deemed untimely under state law.
A.
The Florida Supreme Court’s denial of this claim rests on
adequate and independent state law grounds.
Florida has strict time limitations for the filing of postconviction motions.
Generally, a postconviction motion must be asserted within one year of when the
capital defendant's conviction and sentence became final. Fla. R. Crim. P. 3.851(d)(1).
9
The filing of successive postconviction motions is limited, and to be considered timely
filed, one of the following circumstances must exist:
(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). Thus, after the initial postconviction motion is filed,
capital postconviction litigants must rely on a recognized exception and timely file
their claims or be barred by Fla. R. Crim. P. 3.851(d)(1). This rule is well established
in Florida and routinely followed. See, e.g., Tanzi v. State, 407 So. 3d 385, 392 (Fla.
2025) (finding Tanzi’s lethal injection claim based on his “present medical conditions”
untimely when his medical conditions were present as early as 2009); Rogers v. State,
409 So. 3d 1257, 1267 (Fla. 2025) (finding an as-applied challenge untimely when it
could have been raised previously); Cole v. State, 392 So. 3d 1054, 1064 (Fla. 2024)
(rejecting a method-of-execution claim as untimely when Cole “failed to raise any
argument related to the method of execution until after the Governor signed a death
warrant”); Zack v. State, 371 So. 3d 335, 345 (Fla. 2023) (finding the defendant’s claim
about fetal alcohol syndrome and low IQ being a barrier to his execution time barred
when the defendant had long known of these conditions prior to filing his successive
motion under an active death warrant).
10
“It is incumbent upon the defendant to establish the timeliness of a successive
postconviction claim.” Mungin v. State, 320 So. 3d 624 (Fla. 2020). Randolph did not
establish that his claim fell under any of the enumerated exceptions that would
render his successive motion timely. The Florida Supreme Court recognized that
“Randolph relies on an exception which applies to claims predicated on facts
‘unknown’ or those that ‘could not have been ascertained by the exercise of due
diligence.”’ Randolph, 2025 WL 3170826, at *3. “However, even when based on facts
meeting this demanding standard, the claim must still be filed within a year of when
those facts became discoverable.” Id.
Here, Randolph conceded that he was diagnosed with lupus in 1990 and has
had the disease his entire life. Florida’s current three-drug protocol has remained
essentially unchanged since 2017. Thus, the Florida Supreme Court determined that
“the facts on which this claim is predicated have been available since at least 2017. 2
Randolph's current claim was raised eight years later and is thus untimely.” Id.
A state court’s finding that a federal law claim is time barred under the state’s
procedural rules constitutes an independent and adequate state law ground for
rejecting the claim. See Walker v. Martin, 562 U.S. 307, 316–17 (2011) (finding
2 Contrary to what Randolph asserts, the Florida Supreme Court never stated that
Randolph “should have anticipated the progression of his disease in 1990 or 2017.” It
is the disease itself that is the triggering event, not any alleged (and minor)
progression of the disease. Randolph knew about his lupus diagnosis—his attempt to
circumvent the time bar by relying on the “progression” of his lupus, which was
assessed in anticipation of his death warrant, is unavailing. This is especially true
because (as will be shown below) even when relying on the progressed state of his
disease as the basis of his claim, Randolph fails to satisfy the basic pleading
requirements for a method-of-execution claim.
11
California’s time bar qualified as an adequate state procedural ground); Sochor v.
Florida, 504 U.S. 527, 534 (1992) (holding this Court lacked jurisdiction to decide a
federal claim that the Florida Supreme Court decided both on the merits and on
preservation grounds); Wainwright v. Sykes, 433 U.S. 72, 86–87 (1977) (concluding
that Florida procedure regarding preservation amounted to an independent and
adequate state procedural ground which prevented review); see also Johnson v. Lee,
578 U.S. 605, 609 (2016) (acknowledging that state postconviction court is generally
not used to litigate claims that were or could have been raised at trial or direct appeal,
and finding that the procedural bar “qualifies as adequate to bar federal habeas
review”); Jeter v. Sec’y, Fla. Dep’t of Corr., 479 F. App’x 286, 287-88 (11th Cir. 2012)
(holding that the Florida courts’ dismissal of Jeter’s postconviction motion as
untimely was a rejection on adequate and independent state procedural grounds).
The Florida Supreme Court’s determination that the claim was time barred is
based on independent and adequate state grounds that is independent of any federal
question. This Court has long recognized that where a state court judgment rests on
non-federal grounds, where the non-federal grounds are an adequate basis for the
ruling independent of the federal grounds, “our jurisdiction fails.” Fox Film Corp. v.
Muller, 296 U.S. 207, 210 (1935); Coleman v. Thompson, 501 U.S. 722, 729 (1991);
Michigan v. Long, 463 U.S. 1032, 1038, 1041-42 (1983).
Application of such time bars is not unusual, and time bars are necessary to
discourage dilatory tactics. See McNair v. Allen, 515 F.3d 1168, 1174 (11th Cir. 2008)
(applying Florida’s four-year statute of limitations to bar § 1983 lethal injection
12
challenge), Henyard v. Sec’y, Dept. of Corr., 543 F.3d 644, 647 (11th Cir. 2008) (same).
Federal courts must not lightly “disregard state procedural rules that are
substantially similar to those to which we give full force in our own courts.” Lee, 578
U.S. at 609. Randolph’s assertion that his as-applied challenge should be immune
from Florida’s procedural rules is misguided, especially considering similar time bars
apply in federal method-of-execution challenges.
As this Court has long recognized, challenges to the constitutionality of an
execution method can be brought as a civil rights claim under 28 U.S.C. § 1983.
Nelson v. Campbell, 541 U.S. 637 (2004) (raising an Eighth Amendment claim based
on a state’s cut-down procedure). A method-of-execution challenge raised under §
1983 is subject to the statute of limitations governing personal injury actions in the
state where the challenge was brought. Gissendaner v. Comm'r, Georgia Dep’t of
Corr., 779 F.3d 1275, 1280 (11th Cir. 2015). Georgia has a two-year limitation, and
the claim accrues on the later date of either when direct review is completed by the
denial of certiorari or the date of which the capital litigant becomes subject to a new
or substantially changed execution protocol. Id. Florida had a four-year statute of
limitations that was recently reduced to a two-year period. See Henyard, 543 F.3d at
647; § 95.11 (5), Fla. Stat. (2025). Just as time bars apply to federal claims 3
challenging a method of execution, Florida’s time bar applies to Randolph’s claim
Eighth Amendment claims raised in federal habeas petitions are also subject to a
one-year statute of limitations. See 28 U.S.C.A. § 2244(d)(1). Florida's limitation on
successive postconviction motions is similar to, but more generous than, the federal
standard for successive habeas corpus applications. See 28 U.S.C.A. §
2244(b)(2)(A)(B)(i).
3
13
raised in a state postconviction motion. Randolph’s assertion that he was entitled to
an evidentiary hearing because the time bar did not apply is unsupported by Florida
law as well as federal law.
What is more, this Court has similarly denied certiorari review in other deathwarrant cases where inmates challenged Florida’s time bar applied to Eighth
Amendment method-of-execution challenges raised in state postconviction motions.
See Rogers v. Florida, 145 S. Ct. 2695 (2025); Cole v. Florida, 145 S. Ct. 109 (2024).
Certiorari should also be denied here.
B.
The Florida Supreme Court ruled on alternative grounds,
and the alternative ruling precludes review.
In addition to finding the claim time barred, the Florida Supreme Court found
the claim procedurally barred under state law. Randolph, 2025 WL 3170826, at *3
(citing a prior decision enforcing a procedural bar where claims could have been
raised in earlier postconviction proceedings). A successive postconviction claim is
procedurally barred when it could have been raised in a prior proceeding. See Fla. R.
Crim. P. 3.851(e)(2) (“A claim raised in a successive motion must be dismissed if the
trial court finds that it fails to allege new or different grounds for relief and the prior
determination was on the merits; or, if new and different grounds are alleged, the
trial court finds that the failure to assert those grounds in a prior motion constituted
an abuse of the procedure; or, if the trial court finds there was no good cause for
failing to assert those grounds in a prior motion . . . .”). Given that Randolph had
lupus his entire life and Florida’s current lethal injection protocol has been in effect
since 2017, Randolph could have raised his claim in one of his earlier postconviction
14
motions, but he failed to do so. See, e.g., Reynolds v. State, 373 So. 3d 1124, 1126-27
(Fla. 2023) (finding claim procedurally barred because it could have been raised in a
prior postconviction motion); Rogers, 409 So. 3d at 1263 (“[I]n an active warrant case,
a postconviction claim that could have been raised in a prior proceeding is
procedurally barred.”). Randolph had ample opportunity to raise a timely as-applied
lethal injection challenge, but he instead filed multiple successive postconviction
motions raising other issues. Under well-established and routinely followed Florida
law, this claim was procedurally barred for not having been raised sooner.
Notably, Randolph only challenged the Florida Supreme Court’s holding as it
applied to the state’s time bar, and not the alternative, procedural bar holding. Given
the Florida Supreme Court’s alternative ruling that Randolph’s as-applied challenge
was procedurally barred under state law, the outcome of this case would not change
even if this Court granted certiorari on the time-bar issue. Accordingly, an
independent alternative ground exists for denying Randolph’s as-applied claim that
Randolph has not challenged, and that alternative ground would remain unaffected
by any determination in this case. For all these reasons, this Court should deny
certiorari review.
C.
Randolph’s Supremacy-Clause
presented in state court.
argument
was
never
To the extent that Randolph now challenges the Florida Supreme Court’s
adjudication of his as-applied claim based on the Supremacy Clause, that argument
was never raised in state court. Randolph’s brief never mentioned the Supremacy
Clause, nor did it cite Article VI of the Constitution. Likewise, the Florida Supreme
15
Court did not analyze Randolph’s as-applied claim under the Supremacy Clause,
although it correctly recited the standard outlined by this Court for challenging a
state’s method of execution. But because Randolph never framed this claim within
the scope of the Supremacy Clause, the Florida Supreme Court did not address
whether applying the time bar to Randolph’s case would constitute a violation of the
Supremacy Clause.4
This Court’s jurisdiction to review a case from a state court of last resort is
premised on the state court deciding an important federal question. Sup. Ct. R.
10(b)(c). If a federal question has not first been presented to a state court, this Court
has “no power to consider it.” Street v. New York, 394 U.S. 576, 581–82 (1969); see
also Hill v. California, 401 U.S. 797, 805 (1971) (finding an issue was not properly
before this Court when it was never raised, briefed, or argued in the state appellate
court).
This Court has recognized that when “the highest state court has failed to pass
upon a federal question, it will be assumed that the omission was due to want of
proper presentation in the state courts, unless the aggrieved party in this Court can
affirmatively show the contrary.” Street, 394 U.S. at 582. Randolph never made any
Eighth Amendment argument to the Florida Supreme Court based on the Supremacy
Clause. Indeed, Randolph made no effort to show that this federal issue was properly
raised, nor does he show that the Florida Supreme Court’s failure to consider it was
4 As demonstrated throughout the instant pleading, it clearly does not.
16
for a reason other than lack of presentation. This Court therefore lacks jurisdiction
to review this specific question, and certiorari should be denied.
D.
This case presents no conflict.
In addition to this case having serious vehicle problems, Randolph has failed
to provide any compelling reasons to warrant this Court’s review. Randolph makes
vague and unfounded assertions that the Florida Supreme Court disregarded this
Court’s holdings, but he fails to explain which cases the lower court’s opinion
allegedly contravenes. Randolph has not presented any true conflict between the
Florida Supreme Court and this Court, or any other court for that matter.
As this Court has observed, a principal purpose for certiorari jurisdiction “is to
resolve conflicts among the United States courts of appeals and state courts
concerning the meaning of provisions of federal law.” Braxton v. United States, 500
U.S. 344, 347 (1991) (listing conflict among federal appellate courts and state
supreme courts as a consideration in the decision to grant review). Issues that have
not divided the courts or are not important questions of federal law do not merit this
Court’s attention. Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184 n.3
(1987). In the absence of such conflict, certiorari is rarely warranted. “[T]here are
strong reasons to adhere scrupulously to the customary limitations of [the Court’s]
discretion.” Illinois v. Gates, 462 U.S. 213, 232 (1983). No compelling reasons exist
here to warrant this Court’s exercise of review.
17
E.
The Florida Supreme Court’s decision was correct.
Randolph’s method-of-execution claim fails in its entirety on the merits.
Method-of-execution challenges are governed by the two-part “Baze-Glossip test.”
Bucklew v. Precythe, 587 U.S. 119, 133-35 (2019); see Glossip v. Gross, 576 U.S. 863
(2015); Baze v. Rees, 553 U.S. 35 (2008). As the Florida Supreme Court correctly
stated, under this Court’s precedent, “[t]o succeed on his as-applied method-ofexecution claim, Randolph must “(1) establish that the method of execution presents
a substantial and imminent risk that is sure or very likely to cause serious illness
and needless suffering and (2) identify a known and available alternative method of
execution that entails a significantly less severe risk of pain.” Randolph, 2025 WL
3170826, at *3 (quoting Asay, 224 So. 3d at 701) (citing Glossip, 576 U.S. at 877).
Randolph’s as-applied challenge failed both prongs.
Randolph claimed that lupus would cause him to suffer a “tortuous death”
under the current lethal injection protocol, but he failed to provide any details in his
successive postconviction motion of how that would allegedly occur. Instead of
identifying specific conditions caused by lupus that would impact the effect of the
lethal injection drugs, Randolph’s motion cited Dr. Zivot’s generalized complaints
about the lethal injection procedure. Dr. Zivot’s affidavit stated that Randolph must
“reposition himself frequently during sleep and complains of significant neck pain
when he lies on his back.” He concluded that “many severe and painful outcomes” will
occur during “any attempt to execute” Randolph, and “[p]ositioning him will lead to
an immediate state of severe pain.” This is not unconstitutional pain.
18
As this Court has recognized, the Eighth Amendment does not require “the
avoidance of all risk of pain” in any method of execution. Bucklew, 587 U.S. at 134.
Nor does it guarantee a prisoner a painless death. Id. (citing Glossip, 576 U.S. at 869).
“Instead, what unites the punishments the Eighth Amendment was understood to
forbid and distinguishes them from those it was understood to allow, is that the
former were long disused (unusual) forms of punishment that intensified the sentence
of death with a (cruel) superadd[ition] of terror, pain, or disgrace.” Bucklew, 587 U.S.
at 133 (internal citations and quotations omitted). The possibility that Randolph
might experience pain during the lethal injection procedure due to pain that he
already has to begin with does not amount to “superadded” pain that would constitute
cruel and unusual punishment. Bucklew, 587 U.S. at 130.
To the extent that Dr. Zivot5 suggests that etomidate will not fully render
Randolph unconscious, that is more of a general grievance about the functioning of
etomidate, which has already been fully litigated in Florida. See, e.g., Asay v. State
(Asay VI), 224 So. 3d 695, 701 (Fla. 2017) (“Intravenous injection of etomidate
produces hypnosis characterized by a rapid onset of action, usually within one
minute.”); Long v. State, 271 So. 3d 946, 944 (2019) (crediting the testimony of the
State’s expert witness, Dr. Yun, who testified “that the massive dose of 200
milligrams of etomidate would produce such a deep state of burst suppression and
Dr. Zivot’s affidavit fails to address the well-known and established effect of
etomidate, an FDA approved hypnotic/anesthetic. Randolph will be rendered
unconscious almost immediately by etomidate—within one minute. See Asay, 224 So.
3d 701 (“Intravenous injection of etomidate produces hypnosis characterized by a
rapid onset of action, usually within one minute.”) (quoting package insert).
5
19
unconsciousness that it would . . . render a person . . . unaware of noxious stimuli”).
The Florida Supreme Court has fully considered and approved Florida’s current
lethal injection protocol. See Asay VI, 224 So. 3d at 700-02; Hannon v. State, 228 So.
3d 505, 508-09 (Fla. 2017); see also Jimenez v. State, 265 So. 3d 462, 474-75 (Fla.
2018) (noting that in Asay VI it “fully considered and approved of the current lethal
injection procedure”).
Dr. Zivot’s reference to pulmonary edema, even if accepted as true, does not
bring merit to Randolph’s claim. Dr. Zivot recognizes that pulmonary edema is “often
observed in lethal injection executions” and would result from “[t]he sequential
injection of the lethal chemicals[.]” Thus, pulmonary edema would occur from the
lethal injection drugs, and hence, after the inmate is rendered unconscious by
etomidate. In essence, this is a facial challenge to the etomidate protocol disguised as
an as-applied challenge.
Even if his claim had been timely raised, Randolph was in no way entitled to
an evidentiary hearing so he could relitigate whether etomidate functions properly
under the state’s protocol. Nor was he entitled to a hearing to litigate whether his
positioning on the gurney and in restraints would somehow amount to superadded
pain in violation of the Eighth Amendment.
Notably, Randolph’s successive postconviction motion was entirely silent on
how his proposed alternative methods would result in a “clear and considerable’
difference in reducing pain given that his chief concern was positioning. Randolph
proposed a two-drug protocol consisting of fentanyl and pentobarbital as well as a
20
firing squad as his alternative methods of execution. Randolph failed to explain how
positioning
him
for
lethal
injection
using
different
drugs—fentanyl
and
pentobarbital—would cause a clear difference in pain. Randolph’s positioning for
intravenous line insertion and the preparation to receive lethal injection drugs will
likely be the same regardless of the actual drugs used. Randolph did not explain this
point.
The same is true for Randolph’s other proposed alternative of a firing squad.
While it presumably would not involve intravenous line placement, execution by
firing squad would nevertheless require Randolph to be restrained and remain in the
same position for the execution to be successful. Simply put, if positioning is the
reason for Randolph’s alleged pain, Randolph failed to show that his alternative
methods would constitute a clear and considerable difference in reducing pain
associated with positioning during the execution. See, e.g., Bucklew, 139 S. Ct. at 1130
(rejecting Bucklew’s examples for why nitrogen gas would significantly reduce his
pain as opposed to pentobarbital when he speculated that with pentobarbital there
may be problems with the IV process; forcing him to lie on his back may impair his
breathing; and the stress may cause his tumors to bleed). Accordingly, Randolph
failed to meet his burden of a showing an alternative method that “entails a
significantly less severe risk of pain.” Glossip, 576 U.S. at 877.6 On the face of his
Randolph further did not show that the State could carry out his proposed
alternative methods “relatively easily and reasonably quickly.” Bucklew, 587 U.S. at
141 (internal quotations omitted). For example, problems obtaining pentobarbital
have long been documented. See Correll v. State, 184 So. 3d 478, 490 (Fla. 2015)
(rejecting defendant’s claims that Florida can obtain pentobarbital from other states
6
21
fourth successive postconviction motion, Randloph failed to satisfy this Court’s BazeGlossip standard. The Florida Supreme Court appropriately found that “Randolph's
claim lacks merit as a matter of law.” Randolph, 2025 WL 3170826, at *3.
This Court should not consider Randolph’s last-ditch effort to delay his
execution. This is especially true given that the vehicle in which this issue reaches
this Court is unworkable—the Florida Supreme Court had an independent and
adequate basis to reject Randolph’s claim based on it being untimely and procedurally
barred under state law, and Randolph failed to raise any Supremacy Clause
argument below. On top of that Randolph’s as-applied challenge is facially meritless
under the Baze-Glossip standard. For all these reasons, this Court should deny
certiorari review.
II.
Randolph fails to identify any constitutional deficiency in Florida’s
clemency process.
In his Petition to this Court, Randolph argues that he was denied a meaningful
clemency proceeding and opportunity to confront clemency investigation findings in
violation of the Due Process and Equal Protection Clauses of the Fourteenth
Amendment. Petition at 30. The warrant states that “executive clemency . . . was
considered pursuant to the Rules of Executive Clemency, and it has been determined
or that it could license a compounding pharmacy to make it); Long, 271 So. 3d at 945
(holding that competent, substantial evidence supports the postconviction court’s
finding that Long failed to identify a known and available alternative method of
execution by naming pentobarbital and fentanyl as his proposed alternative methods
of lethal injection); see also In re Ohio Execution Protocol, 860 F.3d 881, 891 (6th Cir.
2017) (In finding pentobarbital unavailable, the court stated: “Ohio need not already
have the drugs on hand. But for [the Glossip/Baze] standard to have practical
meaning, the State should be able to obtain the drugs with ordinary transactional
effort. Plainly it cannot”).
22
that executive clemency is not appropriate.” Randolph argues that he was not given
an opportunity to provide information since his original clemency review in 2014,
nor was he allowed to review the findings for his denial of clemency. Petition at 30.
The Florida Supreme Court rejected Randolph’s argument finding that the
court had previously squarely rejected the argument that a capital defendant has
the “right to review and rebut evidence” underlying the rejection of clemency.
Randolph, 2025 WL 3170826 at *14 (citing Bates, 416 So. 3d at 320-21); see also
Jennings v. State, 50 Fla. L. Weekly S289, S291 (Fla. Nov. 6) (citing cases decided in
1986, 2010, and 2012 in support of rejection of clemency-based claims), cert. denied,
No. 25-6061, 2025 WL 3157365 (U.S. Nov. 12, 2025).
This Court has stated that “pardon and commutation decisions have not
traditionally been the business of courts; as such, they are rarely, if ever, appropriate
subjects for judicial review.” Ohio Adult Parole Auth. v. Woodard, 523 U.S. 272, 276
(1998) (quoting Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1985)). Even
if “some minimal procedural safeguards apply to clemency proceedings,” Woodard,
523 U.S. at 289 (O’Connor, J., concurring) (original emphasis), they were satisfied
when Randolph was appointed clemency counsel, submitted an application,
submitted information to be considered, and was granted an interview. The
Constitution does not require the States to enact a specific clemency mechanism.
Herrera v. Collins, 506 U.S. 390, 414 (1993).
Moreover, Randolph—who, raped, stabbed, strangled and murdered a woman,
and whose guilt for those crimes is not disputed, see Randolph, 562 So. 2d 331, 338
23
(Fla. 1990) (observing he has never claimed innocence and rejecting Randolph’s
claim that the murder was not heinous, atrocious, or cruel)—is an exceptionally poor
candidate for clemency under any circumstances. And again, even if this case were
an appropriate vehicle for certiorari review, Randolph fails to identify any conflict of
decisions or unsettled federal question that would warrant review. Accordingly, this
Court should deny the instant petition.
CONCLUSION
The petition for a writ of certiorari should be denied.
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
/S/ SCOTT A. BROWNE
SCOTT A. BROWNE
Chief Assistant 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
JENNIFER A. DAVIS
Senior Assistant Attorney General
CHRISTINA Z. PACHECO
Special Counsel, Asst. Attorney General
COUNSEL FOR RESPONDENT
24
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.