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
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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
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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,
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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.
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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.