Petition for Writ of Certiorari — Andrew Richard Lukehart, Petitioner v. Florida

Supreme Court briefMay 29, 2026

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No.___________

IN THE

Supreme Court of the United States

_________________________________________________________________________

ANDREW RICHARD LUKEHART,

Petitioner,

v.

STATE OF FLORIDA,

Respondent.

_________________________________________________________________________

On Petition for a Writ of Certiorari to the Supreme Court of Florida

PETITION FOR WRIT OF CERTIORARI

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

TUESDAY, JUNE 2, 2026, AT 6:00 PM

Adrienne Joy Shepherd*

*Counsel of Record

*Member of the Bar of the Supreme Court

Florida Bar Number 1000532

Email: adrienne.shepherd@ccrc-north.org

Alicia Hampton

Florida Bar Number 1026214

Email: alicia.hampton@ccrc-north.org

Capital Collateral Regional Counsel - North

1004 DeSoto Park Drive

Tallahassee, Florida 32301

Phone: (850) 487-0922

CAPITAL CASE

QUESTIONS PRESENTED

Question One

Whether capital defendants under active death warrants are entitled as a matter of

procedural due process to evidentiary hearings on their method-of-execution claims?

Question Two

Whether the requirement under the Baze-Glossip test that capital defendants must

allege an alternative method of execution violates the right to free expression of

religion under the First Amendment and the right to due process under the

Fourteenth Amendment?

Question Three

Whether Florida’s application of Florida Rule of Criminal Procedure 3.852 violates

the Eighth and Fourteenth Amendments by denying capital prisoners access to

execution-related records necessary to investigate and litigate method-of-execution

claims, while simultaneously requiring prisoners to establish a “colorable” claim

before such records may be obtained?

i

LIST OF PARTIES

All parties appear in the caption of the case on the cover page. Petitioner,

Andrew Richard Lukehart, a death-sentenced Florida prisoner, was the appellant in

the Supreme Court of Florida. Respondent, the State of Florida, was the appellee in

the Supreme Court of Florida.

LIST OF RELATED CASES

Per Supreme Court Rule 14.1(b)(iii), the following cases relate to this petition:

Underlying Trial:

Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida

State of Florida v. Andrew Lukehart, Case No. 1996-CF-2645

Judgment Entered: April 4, 1997

Direct Appeal:

Supreme Court of Florida (Case No. SC90507)

Lukehart v. State, 776 So. 2d 906 (Fla. 2000) (affirming)

Judgment Entered: September 28, 2000, reh’g denied January 23, 2001

Petition for Writ of Certiorari:

Supreme Court of the United States (Case No. 00-9578)

Lukehart v. Florida, 533 U.S. 934 (2001) (denying certiorari)

Judgment Entered: June 25, 2001

Initial Postconviction Proceedings:

Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida

State of Florida v. Andrew Lukehart, Case No. 1996-CF-2645 (denying)

Judgment Entered: March 27, 2009

Appeal of Denial of Postconviction Proceedings:

Supreme Court of Florida (Case No. SC09-961)

Lukehart v. State, 70 So. 3d 503 (Fla. 2011) (affirming)

Judgment Entered: June 23, 2011, reh’g denied September 8, 2011

First State Habeas Petition:

Supreme Court of Florida (Case No. SC09-1788)

Lukehart v. Edwin G. Buss, etc., 70 So. 3d 503 (Fla. 2011) (denying)

Judgment Entered: June 23, 2011, reh’g denied September 8, 2011

ii

Second Postconviction Proceedings:

Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida

State of Florida v. Andrew Lukehart, Case No. 1996-CF-2645

Judgment Entered: February 29, 2012, reh’g denied, March 16, 2012

Appeal of Denial of Second Postconviction Proceedings:

Supreme Court of Florida (Case No. SC12-628)

Lukehart v. State, 103 So. 3d 134 (Fla. 2012) (affirming)

Judgment Entered: November 8, 2012

Second State Habeas Petition:

Supreme Court of Florida (Case No. SC16-1225)

Lukehart v. Julie L. Jones, etc., 2017 WL1033691 (Fla. 2017) (denying)

Judgment Entered: March 17, 2017

Third Postconviction Proceedings:

Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida

State of Florida v. Andrew Lukehart, Case No. 1996-CF-2645

Judgment Entered: February 24, 2017, reh’g denied, May 18, 2017

Federal Habeas Petition:

United States District Court, Middle District of Florida, Jacksonville Division.

Lukehart v. Sec’y for Dep’t of Corr., No. 3:12-cv-585-TJC-PDB, 2020 WL 2183150

(M.D. Fla. April 28, 2020); Case number: 3:12-cv-TJC-PDB

Judgment Signed: April 28, 2020

Certificate of Appealability granted as to Ground 7 only.

Appeal from the Denial of Federal Habeas Petition:

United States Court of Appeals, Eleventh Circuit.

Lukehart v. Sec’y for Dep’t of Corr., No. 21-10099, 50 F.4th 32 (11th Cir. 2022); Case

number 21-10099

Judgment Entered: September 26, 2022

Successive Postconviction Proceedings- After Signed Death Warrant

Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida

State of Florida v. Andrew Lukehart, Case No. 1996-CF-2645

Judgment Entered: May 12, 2026

Appeal of Denial of Successive Postconviction Proceedings- After Signed Death

Warrant

Supreme Court of Florida (Case No. SC2026-0736)

Lukehart v. State, (Fla. May 27, 2026) (affirming)

Judgment Entered: May 27, 2026

iii

TABLE OF CONTENTS

CONTENTS

PAGE

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

LIST OF PARTIES ........................................................................................................ ii

LIST OF RELATED CASES ......................................................................................... ii

TABLE OF CONTENTS ............................................................................................... iv

INDEX TO APPENDICES ........................................................................................... vi

TABLE OF AUTHORITIES ........................................................................................ vii

PETITION FOR A WRIT OF CERTIORARI ................................................................ 1

OPINIONS BELOW ...................................................................................................... 1

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

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

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

REASONS FOR GRANTING THE PETITION ............................................................ 8

I.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE THE

ISSUE OF WHETHER CAPITAL DEFENDANTS UNDER ACTIVE

DEATH WARRANTS ARE ENTITLED UNDER DUE PROCESS TO

EVIDENTIARY HEARINGS ON THEIR METHOD-OF-EXECUTION

CLAIMS………………………………………………………………………….…..8

A. Due Process Requires that Capital Defendants Receive Evidentiary

Hearings on their Post-Warrant Method-of-Execution Claims………….9

B. Florida courts’ pervasive denial of evidentiary hearings on post-warrant

method of execution claims is at odds with the practices of other

jurisdictions……………………………………………………………………15

C. Lukehart’s case provides an ideal vehicle for this Court to resolve this

issue…………………………………………………………….………………17

iv

II.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE THE

QUESTION OF WHETHER THE REQUIREMENT UNDER THE BAZEGLOSSIP TEST THAT CAPITAL DEFENDANTS MUST ALLEGE AN

ALTERNATIVE METHOD OF EXECUTION VIOLATES THE RIGHT TO

FREE EXPRESSION OF RELIGION UNDER THE FIRST AMENDMENT

AND THE RIGHT TO DUE PROCESS UNDER THE FOURTEENTH

AMENDMENT…………………………………..………………………………..18

A. The alternative method requirement of the Baze-Glossip test violates

Lukehart’s right to religious freedom under the First Amendment to the

United States Constitution………………….………………………………19

B. The alternative method requirement of the Baze-Glossip test violates

Lukehart’s right to due process under the Fourteenth Amendment to the

United States Constitution………………………………………………….23

III.

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE THE

ISSUE OF WHETHER CAPITAL DEFENDANTS ARE ENTITLED TO

EXECUTION-RELATED RECORDS TO ESTABLISH A “COLORABLE”

METHOD-OF-EXECUTION CLAIM...………………………………………..24

CONCLUSION............................................................................................................. 32

v

INDEX TO APPENDICES

[IN SEPARATE VOLUME]

Appendix A

May 27, 2026 Florida Supreme Court Opinion, Case No.:

SC2026-0736

Appendix B

May 5, 2026 Defendant’s Demand for Additional Public

Records [Department of Corrections] and corresponding

Appendix

Appendix C

May 5, 2026 Defendant’s Demand for Additional Public

Records [Florida Department of Law Enforcement]

Appendix D

May 5, 2026 Defendant’s Demand for Additional Public

Records [District Eight Medical Examiner’s Office]

Appendix E

May 6, 2026 Order Denying Defendant’s Post-Warrant

Demand for Additional Public Records from the Florida

Department of Corrections Under Rule 3.852(h) and (i)

Appendix F

May 6, 2026 Order Denying Defendant’s Post-Warrant

Demand for Additional Public Records from Florida

Department of Law Enforcement Under Rule 3.852(h) and

(i)

Appendix G

May 6, 2026 Order Denying Defendant’s Post-Warrant

Demand for Additional Public Records from the District

Eight Medical Examiner Under Rule 3.852(h) and (i)

Appendix H

May 8, 2026 Defendant’s Successive Motion to Vacate

Judgments of Conviction and Sentence of Death with

Leave to Amend

Appendix I

May 12, 2026 Order Summarily Denying Defendant’s

Successive 3.851 Motion for Vacation of Death Sentence

and Stay of Execution

Appendix J

May 17, 2026 Initial Brief of the Appellant

vi

TABLE OF AUTHORITIES

CASES

PAGE(S)

Armstrong v. Manzo, 380 U.S. 545 (1965)……………………………………….……..9, 24

Asay v. State, 224 So. 3d 695 (Fla. 2017)………………………………….………….....…..8

Atwood v. Shinn, No. CV-22-00860-PHX-MTL (JZB), 2022 WL 1970017 (D. Ariz. June

4, 2022)…………………………………………………………………………………………16

Banks v. State, 150 So. 3d 797 (Fla. 2014)…………………………………………………..8

Barber v. Governor of Alabama, 73 F.4th 1306 (11th Cir. 2023)……………………….16

Baze v. Rees, 553 U.S. 35 (2008)……………………………………………………….passim

Black v. Strada, 721 S.W.3d 223 (Tenn. 2025)…………………………..……………….17

Boyd v. Hamm, No. 2:25-CV-529-ECM, 2025 WL 2884410 (M.D. Ala. Oct. 9,

2025)…………………………………………………………………………………………….16

Bucklew v. Precythe, 139 S. Ct. 1112 (2019)……………………………………………3, 15

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)………………………………20

Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532 (1985)…………………………….…10

Cole v. State, 392 So. 3d 1054 (Fla. 2024)……………………..………………….7, 8, 9, 12

Correll v. State, 184 So. 3d 478 (Fla. 2015)…………………………………………………7

Dailey v. State, 283 So. 3d 782 (Fla. 2019)………………….………………………………4

Davis v. State, 142 So. 3d 867 (Fla. 2014)………………………………………………….17

Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994)…………………………………………….32

Ford v. Wainwright, 477 U.S. 399 (1986)……………………………….……....8, 9, 10, 12

Frazier v. Hamm, No. 2:24-CV-732-ECM [WO], 2025 WL 361172 (M.D. Ala. Jan. 31,

2025)…………………………………………………………………………………………….16

Glossip v. Gross, 576 U.S. 863 (2015)…………………………………………………passim

Hall v. Florida, 134 S. Ct. 1986 (2014)…………………………………………………….32

Hannon v. State, 228 So. 3d 505 (Fla. 2017)………………………………………………...4

Heath v. State, 426 So. 3d 1253 (Fla. 2026)…………………………………………………8

Herrera v. Collins, 506 U.S. 390 (1993)……………………………………………..……...12

Holland v. State, 503 So. 2d 1250 (Fla. 1987)……………………………………………..32

vii

Holt v. Hobbs, 574 U.S. 352 (2015)…………………………………………………….20, 21

In re Amendment to Florida Rules of Criminal Procedure – Capital Postconviction

Public Records Production, 683 So. 2d 475 (Fla. 1996)…………..………………….26-27

In re Ohio Execution Protocol Litig., 946 F.3d 287 (6th Cir. 2019)……………...…15-16

Jimenez v. State, 265 So. 3d 462 (Fla. 2018)…………….………………………………….8

King v. State, No. SC2026-0336, 2026 WL 672101 (Fla. Mar. 10, 2026)………………...4

Lassiter v. Dep’t of Soc. Servs. Of Durham Cnty., N.C., 452 U.S. 18 (1981)…………..24

Long v. State, 271 So. 3d 938 (Fla. 2019)……………………………………………………8

Lukehart v. Florida, 533 U.S. 934 (2001)……………….…………………………………..6

Mathews v. Eldridge, 424 U.S. 319 (1976)……………………………………………..9, 24

Muhammad v. State, 132 So. 3d 176 (Fla. 2013)………………………………………….4

Mullane

v.

Central

Hanover

Bank

&

Trust

Co.,

339

U.S.

306

(1950)

……………………………………………………………………………………………….…..10

Mungin v. State, 320 So. 3d 624 (Fla. 2020)…………………………………………………7

Murphy v. Collier, 587 U.S. 901 (2019)…………………………………………..………...19

Panetti v. Quarterman, 551 U.S. 930 (2007)…………………………………………..14-15

Ramirez v. Collier, 595 U.S. 411 (2022)………………………………………………..…..19

Randolph v. State, 422 So. 3d 166 (Fla. 2025)…………………...……..……..4, 7, 8, 9, 12

Reed v. State, 116 So. 3d 260 (Fla. 2013)……………………………………………………7

Rogers v. State, 409 So. 3d 1257 (Fla. 2025)……………………………….…….7, 8, 9, 12

Sims v. State, 753 So. 2d 66 (Fla. 2000)…….……………………………………………..31

Simmons v. United States, 390 U.S. 377 (1968)…………………………..…..18-19, 21-22

Spaziano v. Florida, 468 U.S. 447 (1984)…………………………………………………..10

Tanzi v. State, 407 So. 3d 385 (2025)…………………….………………….……..7, 8, 9, 12

Trotter v. Florida, 146 S. Ct. 755 (2026)………………………………………………30-31

Valle v. State, 70 So. 3d 530 (Fla. 2011)……………………………………………………..7

Walls

v.

Dixon,

No.

4:25-cv-0488,

ECF

1

(N.D.

Fla.

Nov.

26,

2025)

…………………………………………………………………………………………..…….5, 27

Williams v. Kelley, No. 5:17-CV-00103-KGB (E.D. Ark. 2017)……………….…………15

Williams v. Kelley, 854 F.3d 998 (8th Cir. 2017)………………………………………….15

viii

Woodson v. North Carolina, 428 U.S. 280 (1976)…………………………………..…….10

Wyatt v. State, 71 So. 3d 86 (Fla. 2011)………………………………………………………4

CONSTITUTIONAL PROVISIONS

PAGE(S)

U.S. CONST. amend. I ......................................................................................... 1, 19, 23

U.S. CONST. amend. VIII ......................................................................................passim

U.S. CONST. amend. XIV ............................................................................................ 2, 8

STATUTES AND RULES

PAGE(S)

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

42 U.S.C. § 1983…………………...……………………………………..………………..15-16

42 U.S.C. § 2000cc……………………………………………………...…………2, 19, 20, 21

42 U.S.C. § 2000bb…………………………….……………………….…………………20-21

Fla. Stat. § 119……………………………………………………………………………..….26

Florida Rule of Criminal Procedure 3.851……………………………….………….1, 6, 25

Florida Rule of Criminal Procedure 3.852………………………..………….1, 3, 24-25, 31

Other Authorities

Florida’s First Lethal Injection, CBS NEWS (originally published February 23, 2000),

https://www.cbsnews.com/news/floridas-first-lethal-injection/...................................13

SB 1330, Reg. Session (Fla. 1998), Bill Analyses…………………….………………26-27

SB 898, Reg. Session (Fla. 1998), Bill Analyses………………………………………26-27

ix

PETITION FOR A WRIT OF CERTIORARI

Andrew Richard Lukehart respectfully petitions for a writ of certiorari to

review the judgment of the Supreme Court of Florida.

OPINIONS BELOW

This is a petition regarding the errors of the Florida Supreme Court in

affirming the Circuit Court of the Fourth Judicial Circuit, in and for Duval County,

Florida’s (“circuit court”) Order Summarily Denying Defendant’s Successive 3.851

Motion for Vacation of Death Sentence and Stay of Execution and Orders Denying

Defendant’s Post-Warrant Demands for Additional Public Records Under Rule

3.852(h) and (i). The opinion at issue is unreported and reproduced at Appendix A.

The circuit court’s unpublished orders are reproduced at Appendices E, F, G, and I.

JURISDICTION

The opinion of the Florida Supreme Court was entered on May 27, 2026.

Jurisdiction of this Court is invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The First Amendment provides, in relevant part:

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof.

U.S. Const. amend. I.

The Eighth Amendment provides, in relevant part:

Excessive bail shall not be required…nor cruel and unusual

punishments inflicted.

U.S. Const. amend. VIII.

1

The Fourteenth Amendment provides, in relevant part:

No State shall . . . 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 Religious Land Use and Institutionalized Persons Act of 2000 provides, in

relevant part:

[n]o government shall impose a substantial burden on the

religious exercise of a person residing in or confined to an

institution … unless the government demonstrates that

imposition of the burden on that person … is in furtherance

of a compelling governmental interest [and] is the least

restrictive means of furthering that compelling

governmental interest.

42 U.S.C. § 2000cc-1(a).

STATEMENT OF THE CASE

Andrew Richard Lukehart (“Lukehart”) was convicted of first-degree murder

and aggravated child abuse on February 27, 1997. Lukehart was subsequently

sentenced to death on April 4, 1997. Lukehart is currently housed at Florida State

Prison in Raiford, Florida under an active death warrant signed by Florida Governor

Ron DeSantis on May 1, 2026. Lukehart is scheduled to be executed on June 2, 2026,

by Florida’s current lethal injection procedures, which were promulgated on February

18, 2025. The questions presented to this Court stem from Lukehart’s post-warrant

demands for lethal injection records filed on May 5, 2026; his post-warrant successive

motion for postconviction relief filed on May 8, 2026; and the Florida Supreme Court’s

2

May 27, 2026 opinion affirming the circuit court’s summary denial of postconviction

relief on appeal.

On May 5, 2026, Lukehart filed three demands for records related to lethal

injection from three relevant Florida state agencies- the Florida Department of

Corrections (“FDOC”), the Florida Department of Law Enforcement (“FDLE”), and

the District Eight Medical Examiner’s Office (“MEO”)- pursuant to Florida Rule of

Criminal Procedure 3.852. See App. B, C, and D. Lukehart argued that the lethal

injection records were discoverable under Fla. R. Crim. P. 3.852 because the

requested records specifically related to Florida’s lethal injection drugs and recent

executions that have taken place under FDOC’s current procedures for lethal

injection. The three records requests further argued that the records were necessary

for Lukehart to investigate and raise claims that Florida’s lethal injection procedures

are facially unconstitutional and also unconstitutional as applied to Lukehart

because the procedures violate the Eighth Amendment’s prohibition against cruel

and unusual punishment. See Bucklew v. Precythe, 139 S. Ct. 1112 (2019); Glossip v.

Gross, 576 U.S. 863 (2015); Baze v. Rees, 553 U.S.35 (2008). See App. B, C, and D.

All three state agencies objected to Lukehart’s demands for records, and the

circuit court denied Lukehart’s demands for lethal injection records in three separate

orders rendered on May 6, 2026, finding that the requested records were unrelated

to any colorable claim for relief and therefore not discoverable under Fla. R. Crim. P.

3.852. See App. E, F, and G. Lukehart appealed the circuit court’s denial of lethal

injection records to the Florida Supreme Court (“FSC”), and the FSC affirmed the

3

denial of records in its opinion rendered on May 27, 2026. See App. A. The FSC found,

in relevant part that

“requests related to actions of lethal injection personnel in past

executions do not relate to a colorable claim concerning future

executions because there is a presumption that members of the

executive branch will perform their duties properly.” Muhammad, 132

So. 3d at 203 (citing Valle, 70 So. 3d at 549). Moreover, “because we have

upheld the constitutionality of the current lethal injection protocol, such

records ‘are unlikely to lead to a colorable claim for relief.’” Dailey, 283

So. 3d at 792 (citation modified) (quoting Hannon v. State, 228 So. 3d

505, 512 (Fla. 2017)).

App. A at 21. The FSC further found that

[t]o the extent that Lukehart contends that rule 3.852 violates his equal

protection and due process rights under the Fourteenth Amendment, we

have “previously rejected efforts to morph a challenge to the denial of a

public records demand into a constitutional challenge.” King, 2026 WL

672101, at *6 (citing Randolph, 422 So. 3d at 172). The limitations

imposed by rule 3.852 are “reasonable in the context of capital

postconviction claims.” Wyatt v. State, 71 So. 3d 86, 111 (Fla. 2011).

On May 8, 2026, Lukehart timely filed his Defendant’s Successive Motion to

Vacate Judgments of Conviction and Sentence of Death with Leave to Amend, raising

three post-warrant claims for postconviction relief. See App. H. Lukehart raised two

Eighth Amendment method-of-execution claims challenging the constitutionality of

Florida’s current lethal injection procedures under Glossip v. Gross, 576 U.S. 863

(2015) and Baze v. Rees, 553 U.S. 35 (2008). Lukehart’s Eighth Amendment methodof-execution claims were premised on the Florida Department of Corrections’ current

lethal injection procedures promulgated on February 18, 2025; Lukehart’s severe

kidney disease for which he suffered a medical emergency in January of 2026; and

Dr. Zivot’s review of Lukehart’s recent medical records, the post-execution autopsy

4

records of the nineteen Florida executions that occurred in 2025, and heavily redacted

FDOC lethal injection drug logs obtained by counsel for the now-deceased Frank

Walls in Walls v. Dixon, No. 4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025). In his first

method-of-execution claim, Lukehart raised an as-applied challenge to the

constitutionality of Florida’s lethal injection procedures based on Lukehart’s severe

kidney disease. Lukehart submitted an affidavit by defense expert Dr. Joel Zivot,

M.D., who opined that the interaction of Lukehart’s severe kidney disease and

Florida’s lethal injection protocol would cause an exaggerated negative consequence

on Lukehart’s heart and lungs, making his own death more painful and cruel. See

App. H.

In his second method-of-execution claim, Lukehart raised a facial challenge to

the constitutionality of Florida’s lethal injection based on Dr. Zivot’s findings that the

protocol, as designed, creates an objectively intolerable risk of needless pain and

suffering. Florida’s lethal injection procedures, also called the “Etomidate protocol,”

call for the sequential intravenous injection of the following drugs: 1) 200 milligrams

of etomidate, 2) 1000 milligrams of rocuronium bromide, and 3) 240 milliequivalents

of potassium acetate. Dr. Zivot opined that the sequential use of the analgesic drug

etomidate followed by the paralytic drug rocuronium bromide guarantees that

inmates will experience a painful and terrifying death by internal suffocation as the

rocuronium bromide prevents the inmate from breathing by paralyzing the

diaphragm, which prevents air from being moved in and out of the lungs. Dr. Zivot’s

review of the post-execution autopsy records of the nineteen executions that took

5

place in Florida in 2025 showed evidence of pulmonary edema, or blood-filled lungs

with frothy bloody fluid, in fifteen of the nineteen cases. Dr. Zivot opined that the

sensation of fluid in the lungs is akin to the feeling of drowning or waterboarding.

Lukehart also argued for both his method-of-execution claims that the

requirement under the Baze-Glossip test that he allege an alternative method of

execution violates his First Amendment right to the free expression of his Catholic

faith because having to choose an alternative method for his own execution runs afoul

of church doctrine which views both murder and suicide as grave violations of the

Fifth Commandment – “Thou shalt not kill.” Lukehart requested that the circuit

court hold an evidentiary hearing on all of his post-warrant claims for postconviction

relief. The circuit court summarily denied all of Lukehart’s claims for relief without

an evidentiary hearing, finding that they were untimely raised and without merit in

an order rendered on May 12, 2026. See App. I.

Lukehart appealed to the Florida Supreme Court, timely filing his Initial Brief

of the Appellant on May 17, 2026. See App. J. The State filed its Appellee’s Answer

Brief on May 18, 2026. Lukehart filed his Reply Brief of the Appellant on May 19,

2026. The Florida Supreme Court did not issue its opinion affirming the summary

denial of Lukehart’s claims until eight days later on May 27, 2026. See App. A.

Concerning Lukehart’s as-applied challenge to lethal injection, the FSC found that

This claim is untimely. A capital defendant must file any postconviction

claim within one year after the conviction judgment and sentence

becomes final. Fla. R. Crim. P. 3.851(d)(1). Lukehart’s judgment and

sentence became final nearly twenty-five years ago when the United

States Supreme Court denied his petition for certiorari review in 2001.

Lukehart, 533 U.S. 934. An exception exists for newly discovered

6

evidence: “[f]or an otherwise untimely claim to be considered timely as

newly discovered evidence, it must be filed within a year of the date the

claim became discoverable through due diligence.” Mungin v. State, 320

So. 3d 624, 625-26 (Fla. 2020) (citing Reed v. State, 116 So. 3d 260, 264

(Fla. 2013)). But the facts on which Lukehart predicates this claim were

discoverable more than a year ago. Florida’s “current three-drug

protocol has remained essentially unchanged since 2017.” Randolph v.

State, 422 So. 3d 166, 172 (Fla.), cert. denied, 146 S. Ct. 819 (2025). And

Lukehart admits that his medical records show deteriorating kidney

values starting in 2023. Lukehart’s assertion that this claim only

became discoverable when his kidney disease grew more severe in

January 2026 is without merit. We repeatedly reject arguments that

method-of-execution claims are ripe during warrant litigation when the

worsening medical condition was discovered years earlier. See Cole v.

State, 392 So. 3d 1054, 1064 (Fla.) (Parkinson’s disease since 2017), cert.

denied, 145 S. Ct. 109 (2024); Tanzi v. State, 407 So. 3d 385, 392 (Fla.)

(medical conditions since 2009), cert. denied, 145 S. Ct. 1914 (2025);

Rogers v. State, 409 So. 3d 1257, 1266-67 (Fla.) (porphyria diagnosis),

cert. denied, 145 S. Ct. 2695 (2025); Randolph, 422 So. 3d at 172-73

(lupus diagnosis since 1990).

App. A at 11-12. The FSC also found that Lukehart’s as-applied challenge was

meritless under Baze-Glossip because he had not shown an imminent risk that

Florida’s lethal injection protocol is sure or very likely to cause him needless suffering

and had not offered an alternative method of execution. App. A at 12-15. The FSC

made no attempt to decide the merits of Lukehart’s argument that the alternative

method requirement violates Lukehart’s First Amendment right to free exercise of

religion, instead stating:

But we have rejected the claim that the test articulated in Glossip

“incorrectly requires a prisoner scheduled for execution to prove the

existence of an available alternative method of execution.” Correll v.

State, 184 So. 3d 478, 489 (Fla. 2015). That is because we are “bound by

the conformity clause of the Florida Constitution to construe the state

prohibition against cruel and unusual punishment consistently with

pronouncements by the United States Supreme Court.” Id. (citing Valle

v. State, 70 So. 3d 530, 538-39 (Fla. 2011)).

7

App. A at 15, footnote 11.

Concerning Lukehart’s facial challenge to lethal injection, the FSC also found

the claim was untimely and meritless, stating very briefly that

Lukehart has not justified his delay in bringing this claim given that, as

we have said, Florida’s lethal injection protocol “has remained

essentially unchanged since 2017.” Randolph, 422 So. 3d at 172. As for

the argument’s merits, “[o]nce we have upheld the constitutionality of a

lethal injection protocol, that protocol is facially constitutional as a

matter of law.” Banks v. State, 150 So. 3d 797, 801 (Fla. 2014). In Asay,

224 So. 3d at 702, we approved Florida’s current three-drug protocol

against an Eighth Amendment challenge. We have repeatedly rejected

invitations to hold otherwise and do so again here. See Jimenez v. State,

265 So. 3d 462, 474-75 (Fla. 2018); Long, 271 So. 3d at 945-46; Cole, 392

So. 3d at 1064-65; Tanzi, 407 So. 3d at 392-93; Rogers, 409 So. 3d at

1268-69; Randolph, 422 So. 3d at 173; Heath, 426 So. 3d at 1262-63.

App. A at 16-17. Lukehart now seeks this Court’s intervention through this petition

for writ of certiorari and its corresponding application for stay of execution.

REASONS FOR GRANTING THE PETITION

I.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE

THE ISSUE OF WHETHER CAPITAL DEFENDANTS UNDER

ACTIVE DEATH WARRANTS ARE ENTITLED UNDER DUE

PROCESS TO EVIDENTIARY HEARINGS ON THEIR METHOD-OFEXECUTION CLAIMS.

The Due Process Clause of the Fourteenth Amendment to the United States

Constitution guarantees that “no State shall . . . deprive any person of life, liberty, or

property without due process of law.” Amend. XIV, U.S. Const. “[F]undamental

fairness is the hallmark of the procedural protections afforded by the Due Process

Clause.” Ford v. Wainwright, 477 U.S. 399, 424 (1986) (Powell, J., concurring in part

and in the judgment). Lukehart and all capital defendants in Florida are entitled to

due process at every stage of their capital proceedings, including their final chance to

8

litigate for their very lives while under an active death warrant and facing an

imminent execution. Yet, the Florida courts continue to deny capital defendants the

fundamental fairness that due process requires by pervasively denying them

evidentiary hearings on their post-warrant method-of-execution claims. See App. A;

see also Cole v. State, 392 So. 3d 1054 (Fla. 2024); Tanzi v. State, 407 So. 3d 385 (Fla.

2025); Rogers v. State, 409 So. 3d 1257 (Fla. 2025); Randolph v. State, 422 So. 3d 166

(2025). Lukehart seeks this Court’s intervention to ensure that this unconstitutional

practice ends by definitively answering the question of whether capital defendants

are entitled as a matter of procedural due process to evidentiary hearings on their

post-warrant method-of-execution claims. That answer must be Yes.

A. Due Process Requires that Capital Defendants Receive

Evidentiary Hearings on their Post-Warrant Method-ofExecution Claims.

Procedural due process requires that capital defendants under an active death

warrant and facing an imminent execution receive evidentiary hearings on their postwarrant method of execution claims to ensure that they are not deprived of the critical

component of due process—fundamental fairness and meaningful or real opportunity

to be heard. “[F]undamental fairness is the hallmark of the procedural protections

afforded by the Due Process Clause.” Ford v. Wainwright, 477 U.S. 399, 424 (1986)

(Powell, J., concurring in part and in the judgment). “The fundamental requirement

of due process is the opportunity to be heard ‘at a meaningful time and in a

meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (quoting

Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The right to due process entails

9

“notice and opportunity for hearing appropriate to the nature of the case.” Cleveland

Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). This Court has demanded that

factfinding procedures in capital proceedings aspire to a heightened standard of

reliability. See Ford v. Wainwright, 477 U.S. 399, 411 (1986) (citing Spaziano v.

Florida, 468 U.S. 447, 456 (1984)). The need for heightened reliability “is a natural

consequence of the knowledge that execution is the most irremediable and

unfathomable of penalties; that death is different.” See Ford, 477 U.S. at 411 (citing

Woodson v. North Carolina, 428 U.S. 280, 305 (1976)).

Despite the obvious need for heightened reliability in factfinding procedures

caused by the finality of active warrant litigation, Florida courts continue to refuse

to engage in full and fair factfinding by denying evidentiary hearings on post-warrant

method-of-execution claims. “Death is different,” and Lukehart’s meritorious postwarrant claims for relief must be carefully considered to ensure that the outcome of

his warrant litigation meets the heightened reliability required for capital cases. In

discussing death penalty cases, this Court has relied on “the predicate that the

penalty of death is qualitatively different from a sentence of imprisonment, however

long.” Woodson v. North Carolina, 428 U.S. 280, 305 (1976). “Death, in its finality,

differs more from life imprisonment than a 100-year prison term differs from one of

only a year or two. Because of that qualitative difference, there is a corresponding

difference in the need for reliability in the determination that death is the

appropriate punishment in a specific case. Id. The finality of the ultimate penalty

10

that the State of Florida intends to impose on Lukehart on June 2, 2026, necessitates

that his claims for relief be heard after a full and fair evidentiary hearing.

Lukehart raised meritorious Eighth Amendment as-applied and facial

challenges to lethal injection following the signing of his May 1, 2026, active death

warrant based on, anesthesiologist, Dr. Joel Zivot’s expert opinions that Florida’s

“Etomidate protocol” would cause needless pain and suffering for Lukehart and all

capital defendants experiencing the protocol.1 The circuit court summarily denied

Lukehart’s method-of-execution claims without an evidentiary hearing, finding that

they were procedurally barred as untimely. See App. I. The FSC affirmed the

summary denial, in part, because “the facts on which Lukehart predicates this claim

were discoverable more than a year ago. Florida’s current three-drug protocol has

remained essentially unchanged since 2017.” App. A at 11-12 (internal quotations

omitted).

The FSC further found Lukehart’s claims untimely because he “admits that

his medical records show deteriorating kidney values starting in 2023 … We

repeatedly reject arguments that method-of-execution claims are ripe during warrant

litigation when the worsening medical condition was discovered years earlier.” App.

A at 11-12. The FSC’s opinion is at odds with this Court’s due process jurisprudence

and relevant jurisprudence concerning other execution-related claims for relief.

1 Lukehart’s complete arguments for relief on the merits of his Eighth Amendment as-applied and

facial challenges to Florida’s lethal injection procedures and Dr. Zivot’s opinions supporting those

challenges were presented to the Florida courts in his May 8, 2026, successive motion for

postconviction relief and his May 17, 2026, Initial Brief of the Appellant. See App. H and J.

11

Both the imposition of a death sentence and the process of carrying out an

execution must withstand constitutional scrutiny:

If the Constitution renders the fact or timing of his execution contingent

upon establishment of a further fact . . . “then that fact must be

determined with the high regard for truth that befits a decision affecting

the life or death of a human being.”

Herrera v. Collins, 506 U.S. 390, 406 (1993) (quoting Ford, 477 U.S. at 411). This

Court has held that factual determinations related to the constitutionality of a

person’s execution are “properly considered in proximity to the execution.” Id. at 406

(noting competency to be executed determination is more reliable near time of

execution whereas guilt or innocence determination becomes less reliable). In other

words, whether the carrying out of a death sentence violates the Eighth Amendment

depends on the facts existing after a death warrant is signed and the determination

of these facts requires increased reliability.

However, the FSC continues to insist that capital defendants facing an

imminent execution who attempt to raise Eighth Amendment challenges based on

arguments that Florida’s lethal injection procedures are unconstitutional as-applied

to them based on their progressive medical conditions are procedurally barred as

untimely because they knew of their medical conditions prior to their warrants being

signed. See Cole, 392 So. 3d at 1064 (Parkinson’s disease since 2017); Tanzi, 407 So.

3d at 392 (medical conditions since 2009); Rogers, 409 So. 3d at 1266-67 (porphyria

diagnosis); Randolph, 422 So. 3d at 172-73 (lupus diagnosis since 1990).

The FSC rejects the common-sense argument that the facts underlying these

capital defendants’ as-applied challenges to lethal injection could not fully be known

12

until after their death warrants were signed because they could not know which

procedures they would be executed under or how those procedures would interact

with their progressive medical conditions until they faced an imminent execution

date. The facts underlying Lukehart’s as-applied challenge to lethal injection based

on his severe kidney disease could not fully be known until after his active death

warrant was signed, because there was no way for Lukehart to know which execution

procedures would be in place when and if his death warrant was signed. Lukehart

was sentenced to death on April 4, 1997, and the mandate was issued in his case on

February 26, 2001. Lukehart has sat on death row for twenty-nine years since his

1997 death sentence facing the possibility of an eventual death warrant and

execution. At the time that Lukehart was originally sentenced to death in 1997, lethal

injection was not even an option for execution in Florida, as the first execution by

lethal injection in the state would not take place until 2000. See Florida’s First Lethal

Injection,

CBS

NEWS

(originally

published

February

23,

2000),

https://www.cbsnews.com/news/floridas-first-lethal-injection/.

Since then, Florida’s lethal injection protocols have changed, including a

switch from midazolam to etomidate as the first drug in the three-drug cocktail in

2017. The Florida Department of Corrections has also regularly issued updated lethal

injection procedures every two years since at least 2019- issuing them on February

27, 2019, May 6, 2021, March 10, 2023, and February 18, 2025, respectively. It was

impossible for Lukehart to know if these procedures would show a change to the

lethal injection protocols until they were issued and also impossible for him to know

13

which protocols would apply to his own execution until his death warrant was signed.

If Lukehart had raised his as-applied challenge prior to the signing of his active death

warrant, the claim could have been premature and not fully ripe for consideration.

Further still, Lukehart also could not have known what his kidney functioning

would be at the time of execution until his death warrant was signed because kidney

disease is a progressive condition that deteriorates over time. This Court has

recognized in the analogous context of incompetency-to-be-executed claims that

prisoners’ mental state can vary and deteriorate over time when considering the

appropriate timing of incompetency to be executed claims, and the same logic should

apply to physical conditions that would prevent executions in accordance with Eighth

Amendment principles. See Panetti v. Quarterman, 551 U.S. 930, 943 (2007).

The Florida Supreme Court is effectively forcing capital defendants like

Lukehart into the same dilemma that this Court identified and sought to remedy in

Panetti by requiring them to raise premature as-applied challenges to Florida’s

execution protocols the minute that there is some evidence of a physical condition

that may interact with lethal injection at the time of some potential future execution.

See Panetti, 551 U.S. at 943. This dilemma would apply not only to prisoners with

current medical conditions that could interact with lethal injection, but also to those

with no such medical conditions, as all prisoners are at risk of deteriorations in their

physical health. See id. at 943 (“All prisoners are at risk of deteriorations in their

mental state. As a result, conscientious defense attorneys would be obliged to file

14

unripe (and, in many cases, meritless) Ford claims in each and every § 2254

application.”).

B. Florida courts’ pervasive denial of evidentiary hearings on postwarrant method of execution claims is at odds with the practices

of other jurisdictions.

While Florida courts are pervasively abdicating their constitutional

responsibility to ensure that post-warrant method-of-execution challenges are

resolved fairly by denying evidentiary hearings, other jurisdictions are holding

hearings on such claims. See Bucklew v. Precythe, 587 U.S. 119, 150 (2019) (“The

proper role of courts is to ensure that method-of-execution challenges to lawfully

issued sentences are resolved fairly and expeditiously.”).

In 2017, Arkansas capital defendant Marcel Williams, who was under an active

death warrant, filed a 42 U.S.C. § 1983 action in the United States District Court for

the Eastern District of Arkansas raising an as-applied challenge to Arkansas’s lethal

injection protocol. See Williams v. Kelley, No. 5:17-CV-00103-KGB (E.D. Ark. 2017).

On April 21, 2017, the district court held an evidentiary hearing on Williams’s motion

for a preliminary injunction where Williams’s qualified medical expert provided

testimony concerning the interaction of Arkansas’ lethal injection protocols and

Williams’s unique medical conditions. See Williams v. Kelley, 854 F.3d 998, 1000-1001

(8th Cir. 2017).

In 2019, Ohio capital defendant Warren Keith Henness, who was under an

active death warrant, filed a suit under 42 U.S.C. § 1983 raising an Eighth

Amendment challenge to Ohio’s lethal injection protocols. See In re Ohio Execution

15

Protocol Litig., 946 F.3d 287 (6th Cir. 2019). The district court denied relief after

Henness presented expert testimony in support of his claim at an evidentiary

hearing. See id. at 289.

In 2022, Arizona capital defendant Frank Atwood, who was under an active

death warrant, filed a 42 U.S.C. § 1983 action and a motion for preliminary injection

raising an Eighth Amendment as-applied challenge to Arizona’s lethal injection

protocol. See Atwood v. Shinn, No. CV-22-00860-PHX-MTL (JZB), 2022 WL 1970017

(D. Ariz. June 4, 2022). The district court held an evidentiary hearing on the motion

where Atwood’s qualified medical expert offered expert testimony regarding his

unique medical conditions. See id. at *4.

In 2023, Alabama capital defendant James Edward Barber filed a 42 U.S.C. §

1983 action and a motion for preliminary injection while under an active death

warrant asserting that the manner in which Alabama executed its lethal injection

protocol violated the Eighth Amendment's prohibition against cruel and unusual

punishment. See Barber v. Governor of Alabama, 73 F.4th 1306 (11th Cir. 2023). The

motion was denied after the United States District Court for the Middle District of

Alabama held an evidentiary hearing on the motion. See id. at 1314-1316.2 In 2025,

2 Capital defendants in Alabama under recent active death warrants have also received evidentiary

hearings in 2025 on their Eighth Amendment constitutional challenges to Alabama’s protocol for

carrying out executions by nitrogen hypoxia. See Frazier v. Hamm, No. 2:24-CV-732-ECM [WO], 2025

WL 361172 (M.D. Ala. Jan. 31, 2025) (district court conducted an evidentiary hearing on Alabama

capital defendant’s 42 U.S.C. § 1983 action challenging nitrogen hypoxia protocols under the Eighth

Amendment while under an active death warrant); see also Boyd v. Hamm, No. 2:25-CV-529-ECM,

2025 WL 2884410 (M.D. Ala. Oct. 9, 2025) (same).

16

Tennessee capital defendant Byron Black, who was under an active death warrant,

sought a temporary injunction in the trial court arguing an as-applied Eighth

Amendment challenge to Tennessee’s lethal injection protocols. See Black v. Strada,

721 S.W.3d 223 (Tenn. 2025). The trial court heard evidence from competing experts

at an evidentiary hearing regarding Black's as-applied challenge to the lethal

injection protocols. See id. at 227.

C. Lukehart’s case provides an ideal vehicle for this Court to

resolve this issue.

After a five-year reprieve from 2019 to 2024 with no active death warrants and

only one signed in 2024, Governor Ron DeSantis began signing a flurry of warrants

in 2025 with increasing frequency. Governor DeSantis signed nineteen warrants in

2025 alone, with all nineteen executions taking place. As of the filing of this petition,

he has signed ten active death warrants in 2026. As warrants continue to be signed

at this exponential pace, Florida capital defendants will continue to raise Eighth

Amendment method-of-execution challenges as they face imminent execution.

Lukehart raises both a meritorious Eighth Amendment as-applied challenge

and Eighth Amendment facial challenge to Florida’s Etomidate protocol. The FSC

abdicated its previously-acknowledged “constitutional obligation to ensure that the

method of lethal injection in this state comports with the Eighth Amendment” by

affirming the circuit court’s summary denial without an evidentiary hearing on those

claims. See Davis v. State, 142 So. 3d 867, 870 (Fla. 2014). This Court should reaffirm

17

that constitutional obligation by granting this petition and answering affirmatively

that capital defendants are entitled under due process to evidentiary hearings on

their post-warrant method-of-execution claims.

II.

THIS COURT SHOULD GRANT THIS PETITION TO RESOLVE

THE QUESTION OF WHETHER THE REQUIREMENT UNDER THE

BAZE-GLOSSIP TEST THAT CAPITAL DEFENDANTS MUST

ALLEGE AN ALTERNATIVE METHOD OF EXECUTION VIOLATES

THE RIGHT TO FREE EXPRESSION OF RELIGION UNDER THE

FIRST AMENDMENT AND THE RIGHT TO DUE PROCESS UNDER

THE FOURTEENTH AMENDMENT.

To succeed on his two Eighth Amendment method-of-execution claims,

Lukehart is required to identify a method of execution other than Florida’s current

lethal injection procedures that is “feasible, readily implemented, and in fact

significantly reduce[s] a substantial risk of severe pain.” Glossip, 576 U.S. at 877

(quoting Baze, 533 U.S. at 52). The requirement under this Court’s current

jurisprudence that Lukehart choose another less-painful method of execution is

morally repugnant, impossible to realistically meet, and violates Lukehart’s First,

Eighth, and Fourteenth Amendment rights under the United States Constitution.

The Baze-Glossip alternative method pleading requirement places Lukehart in

the constitutionally repugnant and untenable position of having to forfeit his First

Amendment right to the free exercise of his religion in order to assert his Eighth

Amendment right to be free from cruel and unusual punishment. This creates an

intolerable constitutional violation that only this Court can remedy by finding the

second prong of the Baze-Glossip test unconstitutional. See Simmons v. United States,

390 U.S. 377, 394 (1968) (“In these circumstances, we find it intolerable that one

18

constitutional right should have to be surrendered in order to assert another.”)

(reasoning that a defendant should not be forced to choose between asserting a

Fourth Amendment claim and waiving the Fifth Amendment privilege against selfincrimination).

A. The alternative method requirement of the Baze-Glossip test

violates Lukehart’s right to religious freedom under the First

Amendment to the United States Constitution.

Lukehart has a First Amendment right to the free exercise of his religion, even

as an incarcerated prisoner facing an imminent execution. See Ramirez v. Collier, 595

U.S. 411, 424–25 (2022) (citing 42 U.S.C. § 2000cc–1(a)) (explaining the Religious

Land Use and Institutionalized Persons Act provides that no government shall

impose a substantial burden on the religious exercise of a person confined to an

institution, including state prisoners); see also Murphy v. Collier, 587 U.S. 901 (2019)

(granting defendant’s application for stay of execution and finding the State could not

carry out the execution unless the State permitted a Buddhist spiritual advisor to

accompany the defendant in the execution chamber). The alternative method

requirement of the Baze-Glossip test violates Lukehart’s right to the free exercise of

his religion under both the First Amendment and the Religious Land Use and

Institutionalized Persons Act of 2000 by forcing him to essentially choose a method

of suicide in violation of his sincerely held religious beliefs as a practicing Catholic.

The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)

states that

[n]o government shall impose a substantial burden on the religious

exercise of a person residing in or confined to an institution … unless

the government demonstrates that imposition of the burden on that

19

person … is in furtherance of a compelling governmental interest [and]

is the least restrictive means of furthering that compelling

governmental interest.

42 U.S.C. § 2000cc-1(a). Congress enacted RLUIPA and its sister statute, the

Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb et seq., “in

order to provide very broad protection for religious liberty.” Holt v. Hobbs, 574 U.S.

352, 356 (2015) (quoting Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 693

(2014)). In Holt v. Hobbs, this Court explained that the religious liberty protections

in “RFRA”, 42 U.S.C. § 2000bb-1 et seq., apply to prisoners through its “sister

statute,” RLUIPA, 42 U.S.C. § 2000cc et seq. 574 U.S. 352, 356-357 (2015). The

provisions of RLUIPA governing religious exercise by institutionalized persons

“mirrors RFRA,” such that RLUIPA “allows prisoners ‘to seek religious

accommodations pursuant to the same standard as set forth in RFRA.’” Holt, 574 U.S.

at 357-58.

While Lukehart is unaware of any opinions from this Court directly finding

that RLUIPA’s protections extend to the Baze-Glossip test, there is a reasonable

argument that RLUIPA’s protections against government infringement on prisoners’

free exercise of their religion can be extended to this Court’s test, as it forces certain

prisoners to violate their deeply held religious beliefs in order to prove method-ofexecution claims under the Eighth Amendment’s prohibition against cruel and

unusual punishment. RFRA/RLUIPA’s protections and provisions apply to all federal

law, and the implementation of that law, whether statutory or otherwise. See 42

U.S.C. § 2000bb-3(a) (“This chapter applies to all Federal law, and the

20

implementation of that law, whether statutory or otherwise, and whether adopted

before or after November 16, 1993.”).

“Several provisions of RLUIPA underscore its expansive protection for

religious liberty.” Holt, 574 U.S. at 358. “Congress defined ‘religious exercise’

capaciously to include ‘any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.”’ Holt, 574 U.S. at 358 (quoting 42 U.S.C. §

2000cc–5(7)(A)). “Congress mandated that this concept ‘shall be construed in favor of

a broad protection of religious exercise, to the maximum extent permitted by the

terms of this chapter and the Constitution.”’ Holt, 574 U.S. at 358 (quoting 42 U.S.C.

§ 2000cc–3(g)).

Lukehart is a long-time practicing Catholic. Having to choose an alternative

method for his own execution runs afoul of church doctrine which views both murder

and suicide as grave violations of the Fifth Commandment – “Thou shalt not kill.”

This stems from the belief that human life is sacred, belonging to God, who is the sole

author of life and death. Forcing Lukehart to make such a choice in order to succeed

on his meritorious Eighth Amendment challenges to lethal injection prohibits his free

exercise of religion, which the First Amendment and RLUIPA sought to protect. The

Baze-Glossip alternative method pleading requirement cannot be validly applied to

Lukehart under these circumstances. Doing so would force Lukehart to make the

constitutionally repugnant choice of giving up his constitutional right to free religious

exercise to vindicate his constitutional right to be free from a cruel and unusual

execution, or vice versa. This Court has “[found] it intolerable that one constitutional

21

right should have to be surrendered in order to assert another.” Simmons v. United

States, 390 U.S. 377, 394 (1968).

The alternative-method requirement – imposing on Lukehart the requirement

to participate in orchestrating his own death – burdens his exercise of his Catholic

faith by forcing him to essentially consent to suicide. Being required to choose or

prove the method of his death, or otherwise assist the State of Florida to execute him,

forces Lukehart to violate his sincerely held Catholic beliefs against suicide. Lukehart

cannot be compelled to do so. The alternative method requirement does not further a

compelling governmental interest. The federal government has no interest in

allowing a state to carry out an execution in a manner that violates the Eighth

Amendment. There is no compelling federal governmental interest in states carrying

out executions other than requiring that they do so within the limits of the United

States Constitution. Requiring capital defendants raising method-of-execution claims

to plead a feasible alternative method of execution does not further that

governmental interest.

The alternative method requirement is not the least restrictive means of

furthering the governmental interest in question here. Even if the federal

government has a compelling governmental interest in the states’ ability to carry out

an execution, or even if the relevant governmental interest is Florida’s interest in

seeing criminal sentences and judgments finalized, the method used here- requiring

a prisoner choose the method of his death and assist the State in killing him by

demonstrating that method is available and readily implemented- is not the least

22

restrictive method to achieve those interests. The least restrictive alternative is to

require the Florida Department of Corrections to follow the United States

Constitution and not use execution methods that violate the Eighth Amendment and

Baze-Glossip by causing a sure or very likely risk of severe pain and needless

suffering.

Lukehart raised a First Amendment challenge to Baze-Glossip’s alternative

method requirement with both the circuit court and the Florida Supreme Court. The

FSC refused to rule on the actual merits of the question, instead finding that it was

“bound by the conformity clause of the Florida Constitution to construe the state

prohibition against cruel and unusual punishment consistently with pronouncements

by the United States Supreme Court.” App. A at 15, footnote 11. Lukehart’s case

provides this Court with the ideal vehicle to answer the question of whether the

alternative method requirement of the Baze-Glossip test violates capital defendants’

First Amendment right to the free exercise of religion because Lukehart’s deeply held

Catholic beliefs prevent him from pleading an alternative method of execution. This

Court should therefore grant the petition in order to answer this important federal

question.

B. The alternative method requirement of the Baze-Glossip test

violates Lukehart’s right to due process under the Fourteenth

Amendment to the United States Constitution.

The alternative method requirement of the Baze-Glossip test also violates

Lukehart’s and all capital defendants’ Fourteenth Amendment due process rights

because there is no guaranteed or scientific way to prove that any alternative method

23

will cause significantly less pain than other methods available in the United States.

There exists no way to legally, humanely, or ethically test any alternative method of

execution to determine if it will cause less pain compared to another. Specific to

Lukehart, there exists no legal or scientific way to test any alternative method of

execution on an individual with severe kidney disease prior to Lukehart’s execution

to determine what level of pain they may suffer. Lukehart, and all capital defendants

facing execution, are therefore forced to choose an alternative method without

actually knowing if it will cause less pain and suffering. This Court has promulgated

a standard that is unconstitutional and cannot actually be met. This Court should

grant the petition to ensure there is a standard for analyzing capital defendants’

method-of-execution claims that is constitutional and can realistically be met.

III.

THIS COURT SHOULD GRANT THE PETITION TO RESOLVE THE

ISSUE OF WHETHER CAPITAL DEFENDANTS ARE ENTITLED TO

EXECUTION-RELATED RECORDS TO ESTABLISH A “COLORABLE”

METHOD-OF-EXECUTION CLAIM.

The Fourteenth Amendment to the United States Constitution requires states

to implement standards to ensure fundamental fairness in judicial proceedings.

Lassiter v. Dep’t of Soc. Servs. Of Durham Cnty., N.C., 452 U.S. 18, 33 (1981); see also

Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (citing, Armstrong v. Manzo, 380 U.S.

545, 552 (1965)). Florida Rule of Criminal Procedure 3.852 (“the Rule”) governs

requests for the production of records for capital postconviction defendants.

Specifically, under Fla. R. Crim. P. 3.852(i), the subsection that governs requests for

additional public records from an agency in a capital postconviction case, the

Defendant must assert that the public records sought are “relevant to the subject

24

matter of a proceeding under rule 3.851, or appear reasonably calculated to lead to

the discovery of admissible evidence.” See Fla. R. Crim. P. 3.852 (i)(1)(C).

Lukehart timely requested public records related to lethal injection from the

Florida Department of Corrections, Florida Department of Law Enforcement, and

District Eight Medical Examiner’s Office on May 5, 2026. Additionally, Lukehart

requested, but was denied, the autopsy files from the last ten executions that have

occurred under FDOC’s current lethal injection procedures. See App. D. In affirming

the denial of Lukehart’s records requests, the FSC held that the requests did not

relate to a colorable claim because the constitutionality of the current lethal injection

protocol has been consistently upheld. See App. A. at 21. Further, it held that records

related to the actions of lethal injection personnel in the past, do not relate to a

colorable claim for relief concerning future executions due to the presumption that

personnel will perform their duties properly. Id. The Florida courts continual denial

of capital postconviction defendants’ requests for lethal injection records essentially

blocks defendants’ ability to effectively challenge Florida’s lethal injection protocol

and raise method-of-execution claims.

Contrary to the FSC’s holding, the requested lethal injection records are

necessary to prove that the current procedures are “very likely to cause serious illness

and needless suffering,” and there is a “substantial risk of serious harm” to Lukehart

if the State of Florida executes him under the current method. Glossip, 576 U.S. at

877 (internal citations omitted). The requested records are necessary for undersigned

counsel to adequately investigate Lukehart’s as-applied and facial challenges to

25

lethal injection based on the interaction between FDOC’s lethal injection protocols

and Lukehart’s medical conditions. In addition to supporting Eighth Amendment

challenges to Florida’s lethal injection protocols, the requested records are also

reasonably calculated to lead to the discovery of admissible evidence which would

support a claim that FDOC has repeatedly deviated from its lethal injection

procedures and such deviation from the lethal injection procedures creates a risk of

unreasonable suffering and cruelty in violation of the Eighth Amendment of the

United States Constitution.

The FSC found that “[t]he limitations imposed by rule 3.852 are reasonable in

the context of capital postconviction claims.” (internal quotations omitted). See App.

A. at 22. However, Lukehart has been denied due process and access to public records,

i.e. records that any other natural person or corporation in the world is entitled to

view. Lukehart has a need for these records that the rest of the public does not have:

they are relevant to and necessary for the presentation of his constitutional challenge

to his conviction and sentence, as well as to Florida’s lethal injection protocol. See e.g.

Glossip v. Gross, 576 U.S. 863 (2015). Despite this, in Florida, Lukehart and other

capital defendants are consistently being denied access to the very records needed to

litigate method-of-execution claims. Furthermore, the intention of the Rule

promulgated by the FSC and later enacted in Florida legislation was to improve

efficiency and to expedite access to Chapter 119 information to be incorporated in

capital postconviction defendants’ pleadings. The FSC’s and legislative’s intent were

clear in the promulgation and amendments, neither was to limit a capital

26

defendant’s constitutional and statutory rights to production of public

records. In re Amendment to Florida Rules of Criminal Procedure – Capital

Postconviction Public Records Production, 683 So. 2d 475, 475-476 (Fla. 1996); See

also, SB 898 (1998), Bill Analyses; SB 1330 (1998), Bill Analyses (emphasis added).

Due to Florida courts’ practice of denying capital postconviction defendants’

access to lethal injection records, Florida’s capital defendants have never been able

to thoroughly investigate and present claims challenging the constitutionality of

lethal injection. Accordingly, they have not had a full and fair opportunity to attack

the constitutionality of Florida’s lethal injection procedures.

Heavily redacted records obtained from FDOC by counsel for the now-deceased

Frank Walls in Walls v. Dixon, No. 4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025)

raise serious questions as to whether FDOC has deviated from the lethal injection

procedures, and highlight the need for disclosure of the requested lethal injection

records and greater transparency concerning the lethal injection process. The

potential risks of applying the Etomidate protocol to a medically vulnerable

individual like Lukehart are heightened because, while Florida shatters records for

the speed and volume of executions in 2025 and 2026, FDOC has demonstrated

repeated negligence and noncompliance with respect to their own protocol. The

heavily redacted records received by counsel in Walls v. Dixon raise serious concerns

about FDOC’s administration of its own procedures. For example, Florida executed

Michael Bell on July 15, 2025. However, the corresponding inventory log shows that

FDOC did not record removing rocuronium bromide or potassium acetate until the

27

next day, July 16, 2025. See App. B. Even more concerning, the logs contain no entry

indicating that etomidate was removed for Bell’s execution at all, so it is not clear

what amount of etomidate Michael Bell received during his execution.

FDOC noted that they removed all three drugs used during Thomas Gudinas’s

execution on June 25, 2025, despite the execution taking place on June 24, 2025. See

App. B. For the execution of Anthony Wainwright, FDOC recorded the removal of

etomidate, rocuronium bromide, and potassium acetate on June 12, 2025, despite the

execution taking place on June 10, 2025. See App. B. FDOC consistently records that

execution drugs are removed from supply after executions take place, indicating that

the records are inaccurate and, for some reason, being filled out after the fact. On

June 25, 2025, a date corresponding to Thomas Gudinas’s execution (which actually

occurred on June 24), the inventory logs only show 10 x 10 ml vials of rocuronium

bromide were removed (1000 mg), suggesting that FDOC may have only prepared

half of the required paralytic drug, in violation of the etomidate protocol, which

requires that 2000 mg, or 20 x 10 ml vials, be prepared. See App. B.

On June 12, 2025, a date corresponding to Anthony Wainwright’s execution

(which occurred on June 10, 2025), seven vials of potassium acetate were removed

from FDOC’s inventory. This suggests that FDOC may have prepared only 280

milliequivalents of potassium acetate in violation of the etomidate protocol, which

requires 480 milliequivalents (12 x 20ml vials) be prepared. See App. B. The log sheets

show that during the executions of Edward James and Michael Tanzi, FDOC

28

administered lidocaine, an anesthetic drug not called for in the etomidate protocol.

See App. B.

Lastly, FDOC indicates on the log sheets that they used etomidate with an

expiration date of January 31, 2025, during the executions of Victor Jones on

September 30, 2025; David Pittman on September 17, 2025; Curtis Windom on

August 28, 2025; and Kayle Bates on August 19, 2025. See App. B. The discrepancies

in these records expose the troubling absence of a mechanism to regularly ensure that

FDOC is complying with its own etomidate protocol. Given that Lukehart is very

likely already at a heightened risk of severe pain and suffering due to his unique

medical conditions, these partial records from FDOC indicating potential deviation

from its own etomidate protocol raise grave concerns that Lukehart may experience

needless pain and suffering during his execution currently scheduled for June 2,

2026.

Notably, in Dr. Zivot’s evaluation of the autopsies of now-deceased inmates

James Ford, Jeffrey Hutchinson, Glen Rogers, Anthony Wainwright, Thomas

Gudinas, Samuel Smithers, and Richard Randolph3, the physical evidence- notations

of intramuscular injections in the shoulder of each inmate- points to a high likelihood

that all these men received a mysterious dosage of an unknown substance. FDOC’s

lethal injection protocol makes no mention of any option that permits an

intramuscular injection. This finding from Dr. Zivot’s evaluation provides further

3 James Ford was executed on February 13, 2025. Jeffrey Hutchinson was executed on May 1, 2025.

Glen Rogers was executed on May 15, 2025. Anthony Wainwright was executed on June 10, 2025.

Thomas Gudinas was executed on June 24, 2025. Samuel Smithers was executed on October 14, 2025.

Richard Randolph was executed on November 20, 2025.

29

support for the argument that FDOC is deviating from its lethal injection protocols,

and Dr. Zivot has opined that ad hoc polypharmacy as an adjunct to lethal injection

raises the serious and likely risk of needless pain and suffering.

The continued denials of records related to lethal injection place Lukehart and

all other Florida capital defendants in an impossible Catch-22 that can only be

remedied by granting defendants access to these records. Justice Sonia Sotomayor

recently wrote in the Melvin Trotter case “to express concern about Florida's

implementation of its execution protocol and the secrecy surrounding it.” See Trotter

v. Florida, 146 S. Ct. 755, 755 (2026) (statement respecting the denial of the

application for stay and petition for certiorari). Justice Sotomayor further wrote in

Trotter’s case that

The record reflects at least the possibility that recent Florida executions

have involved—in addition to expired drugs—incorrect drug doses, the

use of nonprotocol drugs, and record keeping lapses that could mask yet

additional failings. The Florida Supreme Court, moreover, has thus far

not allowed further inquiry into these potential problems and has

recently denied requests for records that would prove or disprove claims

like Trotter's … In doing so, the Florida Supreme Court appears to be

placing prisoners in a Catch-22: It has affirmed the denial of requests

for records on these issues, at least in part, because the prisoners do not

yet have enough information to raise a “colorable” Eighth Amendment

claim … The very reason the prisoners are seeking the records, however,

is to gather enough information to raise a colorable Eighth Amendment

claim.

Individuals seeking to challenge the method of their execution should

not have to guess at whether the State is, or is not, following its

execution protocol. Nor does the State appear to have any legitimate

confidentiality interest in shielding from inspection basic facts about the

implementation of its execution protocol, such as whether the State is

using expired drugs. If the protocol is in fact being followed, then

transparency instills confidence in the protocol for everyone—prisoners,

the courts, and the public alike. If it is not, then secrecy is intolerable,

30

and disclosure of the relevant records is indispensable for determining

whether the lapses at issue are likely to lead to an Eighth Amendment

violation …

By continuing to shroud its executions in secrecy, Florida undermines

both the integrity of its own execution process and, potentially, this

Court's ability to ensure the State's compliance with its constitutional

obligations.

Trotter v. Florida., 146 S. Ct. 755, 755–56 (2026) (internal citations and footnotes

omitted). Lukehart’s case presents this Court with the opportunity to remedy this

Catch-22 situation that Florida capital defendants have been placed under by the

persistent denial of records related to lethal injection and also help ensure that the

State of Florida is meeting its constitutional obligations related to executions.

Florida courts has constantly rejected capital defendants’ access to executionrelated records on the basis that the defendants cannot yet establish a colorable

Eighth Amendment claim, while withholding the very records necessary to uncover

and prove such a claim. Trotter v. Florida, 146 S. Ct. 755, 755-56 (2026) (statement

respecting the denial of the application for stay and petition for certiorari). That

inequity is even more apparent here, where individuals outside the capital litigation

process were nevertheless able to obtain the execution-related records that Lukehart

was forced to request under Rule 3.852. Capital defendants are therefore placed at a

substantial disadvantage and forced to litigate constitutional violations blindly, while

the State maintains exclusive control over the evidence necessary to prove them.

“[A]ccess to public records is an essential ingredient in any meaningful postconviction

review”—including under warrant. Sims v. State, 753 So. 2d 66, 71 n.10 (Fla. 2000)

(Anstead, J., concurring). Florida’s continued reliance on secrecy not only frustrates

31

meaningful constitutional review, but effectively insulates potential misconduct from

scrutiny altogether.

Lukehart must be given a fair opportunity to show that his execution will

violate the Eighth and Fourteenth Amendments of the United States Constitution

and the corresponding provisions of the Florida Constitution. Hall v. Florida, 134 S.

Ct. 1986, 2001 (2014) (“The death penalty is the gravest sentence our society may

impose. Persons facing that most severe sanction must have a fair opportunity to

show that the Constitution prohibits their execution.”). Postconviction litigation is

governed by principles of due process. Easter v. Endell, 37 F.3d 1343 (8th Cir. 1994);

Holland v. State, 503 So. 2d 1250 (Fla. 1987). Accordingly, Lukehart and other

Florida capital defendants should not have to guess at whether the State of Florida

is, or is not, following its own etomidate protocol. Lukehart is entitled to information

about the reliability and effectiveness of the drugs being used to kill him. Denying

him the opportunity to access records that directly relate to how the State of Florida

intends to carry out his execution on June 2, 2026, violates his right to due process

under the Fourteenth Amendment to the United States Constitution.

CONCLUSION

This Court should grant this petition to resolve the questions presented. This

Court should also grant Lukehart’s corresponding application for stay of execution

filed contemporaneously with this petition to allow enough time for a full and fair

consideration of these meritorious issues.

32

Respectfully submitted,

/s/ Adrienne Joy Shepherd*

ADRIENNE JOY SHEPHERD

*Counsel of Record

*Member of the Bar of the Supreme Court

Florida Bar No. 1000532

Assistant CCRC-North

Email: adrienne.shepherd@ccrc-north.org

/s/ Alicia Hampton

ALICIA HAMPTON

Florida Bar No. 1026214

Assistant CCRC-North

Email: alicia.hampton@ccrc-north.org

Capital

Collateral

Regional

Northern Region

1004 DeSoto Park Drive

Tallahassee, FL 32301

Phone: (850) 487-0922

May 29, 2026

Dated

33

Counsel-

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.

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