Petition for Writ of Certiorari — Dusty Ray Spencer, Petitioner v. Florida

CAPITAL CASE

No. __________________

______________________________________________________________

In the Supreme Court of the United States

______________________________________________________________

DUSTY RAY SPENCER,

Petitioner,

v.

STATE OF FLORIDA,

Respondents.

____________________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

FLORIDA SUPREME COURT

__________________________________________________________________

THIS IS A CAPITAL CASE

WITH AN EXECUTION SCHEDULED FOR

THURSDAY, JUNE 25, 2026, AT 6:00 P.M.

_____________________________________________________

JULISSA R. FONTÁN*

FLORIDA BAR NUMBER 0032744

JOHN “JACK” LOBIANCO

FLORIDA BAR NUMBER 125860

LAW OFFICE OF THE CAPITAL COLLATERAL

REGIONAL COUNSEL - MIDDLE REGION

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FL 33637

TELEPHONE: (813) 558-1600

COUNSEL FOR THE PETITIONER

COUNSEL OF RECORD

*MEMBER OF THE BAR OF THE SUPREME COURT

CAPITAL CASE

QUESTIONS PRESENTED

1.

Does this Court’s precedent in Baze v. Rees and Glossip v. Gross, apply

to Eighth Amendment challenges when determining whether maladministration of

an execution protocol amounts to cruel and unusual punishment where inmates are

not seeking an alternate method of execution, only seeking that the approved method

is followed?

ii

LIST OF PARTIES

Dusty Ray Spencer was the Appellant below.

The State of Florida was the Appellee below.

iii

RELATED CASES

TRIAL AND SENTENCING

Circuit Court of the Ninth Judicial Circuit, Orange, Florida

Docket Number: 92-CF-473

Case Caption: State of Florida v. Dusty Ray Spencer

Date of Entry of Judgment: Convicted, November 7, 1992; Sentence of Death,

December 21, 1992.

Unreported.

DIRECT APPEAL

Florida Supreme Court

Docket Number: No. 80,987

Case Caption: Dusty Ray Spencer v. State of Florida

Date of Entry of Judgment: Order entered, September 22, 1994; Rehearing

Denied, December 6, 1994. Mandate issued: January 5, 1995.

Spencer v. State, 645 So. 2d 377 (Fla. 1994).

RE-SENTENCING AFTER DEATH SENTENCE VACATED ON DIRECT APPEAL

Circuit Court of the Ninth Judicial Circuit, Orange, Florida

Docket Number: 92-CF-473

Case Caption: State of Florida v. Dusty Ray Spencer

Date of Entry of Judgment: Re-sentencing Argument: January 11, 1995.

Sentence of Death, January 18, 1995.

Unreported.

DIRECT APPEAL FROM BEING RE-SENTENCED TO DEATH

Florida Supreme Court

Docket Number: No. 80,119

Case Caption: Dusty Ray Spencer v. State of Florida

Date of Entry of Judgment: Order entered, September 12, 1996; Rehearing

Denied, April 14, 1997; Mandate issued, May 20, 1997.

Spencer v. State, 691 So. 2d 1062 (Fla. 1996).

PETITION FOR WRIT OF CERTIORARI

United States Supreme Court

Docket Number: 97-5249

iv

Case Caption: Dusty Ray Spencer v. Florida

Date of Entry of Judgment: October 6, 1997.

Spencer v. Florida, 118 S.Ct. 213 (1997).

POSTCONVICTION MOTION TO VACATE JUDGMENT AND SENTENCE

Circuit Court of the Ninth Judicial Circuit, Orange County, Florida

Docket Number: 92-CF-473

Case Caption: State of Florida v. Frank Athen Walls

Date of Entry of Judgment: April 27, 2000.

Unreported

APPEAL FROM DENIAL OF POSTCONVICTION MOTION TO VACATE JUDGEMENT

AND SENTENCE AND CONSOLIDATED STATE HABEAS PETITION

Florida Supreme Court

Docket Number: SC00-01051 & SC00–2588

Case Caption: Dusty Ray Spencer v. State of Florida; Dusty Ray Spencer v.

James V. Crosby, Jr., Secretary, Florida Department of Corrections

Date of Entry of Judgment: January 9, 2003; Rehearing Denied March 25,

2003; Mandate

Issued, April 28, 2003.

Spencer v. State, 842 So. 2d 52 (Fla. 2003).

FEDERAL HABEAS CORPUS PETITION

United States District Court, Middle District of Florida, Orlando Division

Docket Number: 6:03-cv-991-Orl-28JGG

Case Caption:

Dusty Ray Spencer v. James V. Crosby, et al.

Date of Entry of Judgment: September 7, 2006

Spencer v. Crosby, 2006 WL 7063316 (U.S. F.L.M.D. 2006).

SUCCESSIVE MOTION TO VACATE DEATH

Circuit Court of the Ninth Judicial Circuit, Orange County, Florida

Docket Number: 92-CF-473

Case Caption: State of Florida v. Dusty Ray Spencer

Date of Entry of Judgment: February 5, 2008

Unreported

APPEAL FROM SUMMARY DENIAL OF SUCCESSIVE POSTCONVICTION MOTION

Florida Supreme Court

v

Docket Number: SC08-2270

Case Caption: Dusty Ray Spencer v. State of Florida

Date of Entry of Judgment: November 18, 2009

Spencer v. State, 23 So. 3d 712 (Fla. 2009).

Unpublished

APPEAL FROM DENIAL OF PETITION OF FEDERAL HABEAS CORPUS

United States Court of Appeals, Eleventh Circuit.

Docket Number: 06-16503

Case Caption: Dusty Ray Spencer v. Secretary, Fl. Dept. of Corrections,

Attorney General, State of Florida

Date of Entry of Judgment: June 22, 2010.

Spencer v. Secretary, Dept. of Corrections, 609 F.3d 1170 (11th Cir. 2010).

PETITION FOR WRIT OF CERTIORARI

United States Supreme Court

Docket Number: 10–7637

Case Caption: Dusty Spencer v. Secretary, Florida Department of Corrections,

et al.

Date of Entry of Judgment: January 24, 2011.

Spencer v. McNeil, 562 U.S. 1203 (2011).

SUCCESSIVE MOTION TO VACATE DEATH

Circuit Court of the Ninth Judicial Circuit, Orange County, Florida

Docket Number:92-CF-473

Case Caption: State of Florida v. Dusty Ray Spencer

Date of Entry of Judgment: April 18, 2017; Rehearing Denied: June 7, 2017

Unreported

APPEAL FROM SUMMARY DENIAL OF SUCCESSIVE POSTCONVICTION MOTION

Florida Supreme Court

Docket Number: SC17–1296

Case Caption: Dusty Ray Spencer v. State of Florida

Date of Entry of Judgment: November 8, 2018; Rehearing denied: December

13, 2018; Mandate Issued, December 31, 2018.

Spencer v. State, 259 So. 3d 712 (Fla. 2018).

vi

PETITION FOR WRIT OF CERTIORARI

United States Supreme Court

Docket Number: SC17-1269

Case Caption: Spencer v. Florida

Date of Entry of Judgment: May 28, 2019

DEFENDANT’S SUCCESSIVE MOTION TO VACATE JUDGMENT OF CONVICTION AND

SENTENCE OF DEATH AFTER DEATH WARRANT SIGNED AND DEFENDANT’S

MOTION FOR STAY OF EXECUTION CONSOLIDATED.

Circuit Court of the Ninth Judicial Circuit, Orange County, Florida

Docket Number: 92-CF-473

Case Caption: State of Florida v. Dusty Ray Spencer.

Date of Entry of Judgment: June 9, 2026.

Unreported

APPEAL FROM SUMMARY DENIAL OF SUCCESSIVE POSTCONVICTION MOTION TO

VACATE JUDGMENT OF CONVICTION AND SENTENCE OF DEATH AFTER DEATH

WARRANT SIGNED, DEFENDANT’S MOTION FOR STAY OF EXECUTION AND

DEFENDANT’S WRIT FOR HABEAS CORPUS CONSOLIDATED

Florida Supreme Court

Docket Number: SC2026-0880

Case Caption: Dusty Ray Spencer v. State of Florida

Date of Entry of Judgment: June 18, 2026.

vii

TABLE OF CONTENTS

CONTENTS

PAGE(S)

QUESTION PRESENTED ............................................................................................ ii

LIST OF PARTIES ....................................................................................................... iii

RELATED CASES ........................................................................................................ iv

TABLE OF CONTENTS ............................................................................................. viii

INDEX OF APPENDICES ........................................................................................... ix

TABLE OF AUTHORITIES .......................................................................................... x

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

CITATION TO OPINION BELOW ............................................................................... 1

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

CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 2

STATEMENT OF THE CASE ....................................................................................... 3

REASONS FOR GRANTING THE WRIT .................................................................... 7

I.

SPENCER’S CASE PRESENTS AN EXTREME EXCEPTION TO THE

PRESUMPTION AGAINST JUDICIAL INTERVENTION IN THE

ELEVENTH HOUR BEFORE AN EXECUTION. ....................................... 7

a. Spencer has pled facts sufficient for a finding that DOC’s protocol

deviations amount to risk that is sure or very likely to cause serious

illness and needless suffering, giving rise to imminent danger during his

upcoming execution. ............................................................................... 12

b. The protocol as applied is flawed due to its inherent one size fits all

methodology- if made flexible to adapt to an individual inmate,

alternative execution method is unnecessary. ...................................... 16

CONCLUSION............................................................................................................. 20

viii

INDEX TO APPENDICES

APPENDIX A— Florida Supreme Court opinion

APPENDIX B— Trial court order

ix

TABLE OF AUTHORITIES

PAGE(S)

Cases

Asay v. State, 224 So. 3d 695 (Fla. 2017) .................................................................... 16

Baze v. Rees, 553 U.S. 35 (2008) ................................................................................... 2

Bucklew v. Precythe ....................................................................................... 4, 7, 16, 18

Ford v. Wainwright, 477 U.S. 399, 410 (1986) ............................................................. 4

Glossip v. Gross, 576 U.S. 863 (2015) ........................................................................... 2

Hilton v. Braunskill, 481 U.S. 770, 777 (1987) ............................................................. 4

Hurst v. Florida, 136 S. Ct. 616 (2016) ......................................................................... 6

Hurst v. State, 202 So. 3d 40 (Fla. 2016) ...................................................................... 6

Nken v. Holder, 556 U.S. 418, 425-426 (2009) .............................................................. 4

Spencer v. Florida, 118 S. Ct. 213 (1997)...................................................................... 5

Spencer v. State, 645 So.2d 377 (Fla. 1994) .................................................................. 5

Spencer v. State, 691 So.2d 1062 (Fla. 1997) ................................................................ 5

Spencer v. State, 842 So.2d 52 (Fla. 2003) .................................................................... 5

Walls v. Dixon, No. 4:25-cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025) .................. 7, 9, 10

Statutes

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

FLA. STAT. § 922.105 ....................................................................................................... 8

FLA. STAT. § 945.10 ......................................................................................................... 8

FLA. STAT. CH. 9169 § 6124 (1924) ............................................................................... 20

Constitutional Provisions

U.S. CONST. AMEND. VIII ............................................................... ii, 2, 4, 11, 12, 18, 20

U.S. CONST. AMEND. XIV................................................................................................ 2

OTHER SOURCES:

CALVIN HWANG, PHARMD, BCEMP ET AL., IMPACT OF PARALYTIC CHOICE ON

POSTINTUBATION SEDATION AND ANALGESIA IN THE EMERGENCY

DEPARTMENT, 82 (SUPPL 3), AM J. HEALTH-SYST PHARM, JUN. 1, 2025. ...................... 13

USA TODAY, 'TORTUROUS': BOTCHED TENNESSEE EXECUTION SPARKS US DEATH ROW

DEBATE, HTTPS://WWW.USATODAY.COM/STORY/NEWS/NATION/2026/05/28/BOTCHEDTENNESSEE-EXECUTION-TONY-CARRUTHERS-CHRISTA-PIKE/90268533007/, LAST

ACCESSED JUNE 10, 2026. ............................................................................................. 17

x

PETITION FOR WRIT OF CERTIORARI

Petitioner, Dusty Ray Spencer, respectfully petitions for a writ of certiorari to

review a judgment of the Supreme Court of Florida.

CITATION TO OPINIONS BELOW

The opinion of the Florida Supreme Court is attached as Appendix A. The trial

court’s order denying Spencer’s successive motion for post-conviction relief is

reproduced at Appendix B.

JURISDICTION

The opinion of the Florida Supreme Court was entered on June 18, 2026.

(Appendix A). This petition is timely filed. This Court has jurisdiction pursuant to

28 U.S.C. § 1257(a).

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. CONST. AMEND. VIII.

The Eighth Amendment to the Constitution of the United States

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

U.S. CONST. AMEND. XIV.

The Fourteenth Amendment to the Constitution of the United States

All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State

wherein they reside. No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

2

STATEMENT OF THE CASE

Dusty Spencer is scheduled to be executed on June 25th in Florida State Prison

by a Department of Corrections which has neither acknowledged nor refuted the

documented use of expired etomidate during seven executions carried out between

January 1 and September 30, 2025. Mr. Spencer’s current condition may still give

rise to an unconstitutional execution. Mr. Spencer is an elderly man with a slew of

medical issues including a diagnosis of cirrhosis1 of the liver and portal hypertension

which are all documented in medical records generated while he was in the custody

of Florida Department of Corrections.

By virtue of the many serious health issues with which Mr. Spencer presents,

even if the etomidate is administered in a manner consistent with the department’s

protocols, “[t]he results of this will be the exaggerated toxicity of etomidate, including

an exaggerated hemodynamic impact that might spike up his blood pressure. In that

instance, his esophageal varices might burst, and blood will pour from his mouth,

choke him, and be easily visible to witnesses.” See WR 470. With this in mind, any

deviation from the protocol could have highly dangerous results. Further, The DOC

lethal injection protocol makes no provisions to account for coexisting medical

conditions. Because of his long-standing cirrhosis of the liver, Mr. Spencer is at

1 Cirrhosis is the progressive scarring of the liver tissue, caused by long-term liver diseases or injuries.

In cirrhosis, healthy liver tissue is replaced by permanent scarring. This scar tissue obstructs blood

flow and prevents the liver from effectively filtering toxins, processing nutrients, and regulating blood

clotting. WR 469. In the case of Mr. Spencer, I estimate him to be Child Class B. Individuals with this

degree of cirrhosis carry a 30% chance of dying if they undergo abdominal surgery, and individuals in

Child Class B should be evaluated for liver transplant candidacy. Id.

3

constant risk of dangerous bleeding. Id. The execution of Mr. Spencer will be carried

out in violation of Florida’s Lethal Injection Protocol causing a substantial risk of

needless pain and cruelty. These circumstances present harm that is irreparable.

Spencer presents this Court with a single question which this Court and only

this Court can resolve: whether Florida’s maladministration of their lethal injection

protocol violates the prohibition against cruel and unusual punishment. Similarly,

when determining whether this Court will grant Spencer’s Petition for Certiorari,

this Court should equally look to the four factors of a “traditional standard for a stay”

which includes: (1) whether there is a strong showing of success on the merits; (2)

whether there will be irreparable injury; (3) whether there will be substantial injury

to other interested parties; and (4) public interest. See, Bucklew v. Precythe, 587 U.S.

at 171-172 (Sotomayor, J. dissenting); Nken v. Holder, 556 U.S. 418, 425-426 (2009);

Hilton v. Braunskill, 481 U.S. 770, 777 (1987).

Invoking the Eighth Amendment’s prohibition against cruel and unusual

punishment does not serve as a “last-ditch effort” to escape punishment. Nor does

such claim expand or contort the Constitution’s prohibition against cruel and unusual

punishment. The protections of the Eighth Amendment apply to all that are

punished, especially those that have committed violent and cruel crimes and have

been sentenced to the most severe punishment. The Eighth Amendment also protects

us as citizens of this Country because it serves to protect “the dignity of society itself

from … barbarity.” Ford v. Wainwright, 477 U.S. 399, 410 (1986).

4

Procedural History:

Mr. Spencer was tried by a jury and found guilty on November 7, 1992, of firstdegree murder, aggravated battery, and attempted second-degree murder in Orange

County, Florida. The empaneled jury recommended a sentence of death for the firstdegree murder conviction on December 8, 1992, by a non-unanimous vote of seven to

five. The trial court sentenced Spencer to death on December 21, 1992. Spencer

appealed.

On September 22, 1994, this Court affirmed the conviction, but vacated

Spencer’s death sentence because the trial court improperly instructed the jury on

and considered the aggravating circumstance of “cold, calculated and premeditated”

(CCP) and failed to consider the two mental health statutory mitigating

circumstances. Spencer v. State, 645 So.2d 377 (Fla. 1994). On remand, the trial

court, without empaneling a new jury, again sentenced Spencer to death and this

Court affirmed. Spencer v. State, 691 So.2d 1062 (Fla. 1997). Spencer filed a petition

for writ of certiorari, and the Supreme Court of the United States denied certiorari

on October 6, 1997. Spencer v. Florida, 118 S. Ct. 213 (1997).

On July 13, 1998, Spencer filed a Motion to Vacate Judgment and Sentence

pursuant to Fla. R. Crim. P. 3.850. The circuit court denied the Motion after a limited

evidentiary hearing. Spencer appealed and filed a petition for state habeas relief to

the Florida Supreme Court. That Court affirmed the denial of his 3.850 Motion and

denied his state habeas petition. Spencer v. State, 842 So.2d 52 (Fla. 2003).

5

Subsequently, Spencer filed a successive 3.851 motion based upon Hurst v.

Florida2 and Hurst v. State3. The successive motion was subsequently summarily

denied. An appeal was filed. That Court issued an Order to Show Cause. After

responses were filed, the Court denied the successive motion. See Spencer v. State,

259 So.3d 712 (Fla. 2018). Petition for certiorari on this issue was denied by the

United States Supreme Court. See Spencer v. Florida, 587 U.S. 1028 (2019).

On May 26, 2026, Governor DeSantis signed a death warrant for Mr. Spencer.

Mr. Spencer filed his successive under warrant on June 3, 2026, raising concerns with

Florida’s lethal injection protocol, specifically in relation to the likely effects on Mr.

Spencer due to his well-documented history of failing health and chronic conditions

which could compromise the efficacy of the protocol. It was summarily denied on June

9, 2026. The decision was appealed and ultimately the Florida Supreme Court denied

Mr. Spencer on June 18. 2026.

[SPACE INTENTIONALLY LEFT BLANK]

2 Hurst v. Florida, 136 S. Ct. 616 (2016).

3 Hurst v. State, 202 So. 3d 40 (Fla. 2016).

6

REASONS FOR GRANTING THE WRIT

I.

SPENCER’S CASE PRESENTS AN EXTREME EXCEPTION TO

THE PRESUMPTION AGAINST JUDICIAL INTERVENTION IN

THE ELEVENTH HOUR BEFORE AN EXECUTION.

It is the role of the judiciary to ensure challenges to lawfully issued sentences

are resolved fairly and expeditiously. Bucklew v. Precythe, 587 U.S. 119, 150 (2019).

Spencer raises a claim for judicial review that could not have been brought at an

earlier time; therefore, it is not an attempt to manipulate the judicial branch to delay

his execution.

On November 26, 2025, evidence was presented in a federal lawsuit filed by a

recently executed inmate, Frank Walls, indicating that the Florida Department of

Corrections' ("FDOC") ability to competently carry out Executions without deviating

from its own Lethal Injection procedures is compromised. Walls v. Dixon, No. 4:25cv-0488, ECF 1 (N.D. Fla. Nov. 26, 2025). Walls was denied relief because the courts

found that the medical aspect of his as-applied challenge was untimely. Untimely

though the claim may have been for Walls, the issues giving rise to his claim continue

to implicate the constitutional rights of each individual sentenced to death in the

State of Florida. Id.

A glimpse of the drug logs was obtained during the Frank Walls post-warrant

litigation in November 2025, which include documentation of the three drugs used

pursuant to Florida’s three-drug-protocol between January 1, 2025, and September

30, 2025. The drug logs documented etomidate, the first drug of the protocol, which

7

had either reached its expiration or was expired, and being “used” during seven dates

which correspond with dates of executions between January 1 and September 30,

2025.

According to Florida Department of Corrections (“DOC”), the promulgated

protocols were designed to be “compatible with evolving standards of decency… and

advances in science, research, pharmacology, and technology.” WR 411. It further

asserts that “The process will not involve unnecessary lingering or the unnecessary

or wanton infliction of pain and suffering.” Id. Under Florida law, a death sentence is

to be carried out pursuant to the requirements of Fla. Stat. § 922.105. The statute

does not prescribe the specific drugs, dosages, drug combinations, or manner of

intravenous access employed during an execution. Furthermore, the statute is silent

on certification, licensure, experience, or competence of those who participate in an

execution. All decisions regarding the Lethal Injection Protocol are determined by

DOC, which retains the unfettered ability to revise the Protocol whenever it is so

inclined. The Lethal Injection Protocol calls for successive intravenous injections of

200 milligrams of etomidate, a sedative, followed by 1000 milligrams of rocuronium

bromide, a paralytic agent, and 240 milliequivalents of potassium acetate, which

stops the heart. WR 417-424. The source of the drugs used in the Lethal Injection

Protocol is unknown, and the identity of the pharmacy that manufactures the

chemicals used by DOC in executions is confidential. Fla. Stat. § 945.10. Little is

known about DOC’s standards for storing or testing of the drugs. After Florida’s

8

governor signed Walls’s warrant scheduling his execution, Walls was prevented from

obtaining additional records from the Florida Department of Corrections (“FDOC”)

and Department of Law Enforcement documenting and logging the drugs used for the

additional six executions which took place in 2025 in Florida.

Documents obtained in the Walls’s case, including DOC logs, have exposed the

routine maladministration of critical phases of the execution process and have raised

serious concerns over the implementation of the written execution protocols. This is

particularly so because neither the Governor, the Attorney General, nor DOC have

taken any apparent action to either acknowledge, address, or remedy the alarming

errors exposed in the records proffered by Walls. WR 426-466. DOC has continued to

execute inmates at an unprecedented rate without pausing to ensure compliance with

its own protocols.

Adding to the concerns caused by DOC’s failure to timely record which drugs

are checked out from inventory, and when, is that DOC’s recordkeeping practices also

reflect inaccuracies in the amounts of drugs checked out for each execution. The

amount of each drug required for an execution is prescribed by the protocols and not

subject to variation. WR 417-424. Variations in the amounts being removed for an

execution is a worrying indicator that the lethal injection drugs are being

administered at dosages inconsistent with FDOC’s protocols. Compounding these

concerns, the information suggests that the drugs being used were expired.

9

Based on the information that was obtained from Mr. Walls’s litigation, which

was gleaned from FDOC’s records, Petitioner consulted and retained Dr. Joel Zivot,

MD, a physician practicing anesthesiology and critical care. Dr. Zivot further

examined Mr. Spencer’s medical records and provided a declaration which explains

the significance of the issues with the protocol as specifically applied to Mr. Spencer.

Mr. Spencer is an elderly man with a slew of medical issues including a

diagnosis of cirrhosis of the liver and portal hypertension which are all documented

in medical records generated while he was in the custody of Florida Department of

Corrections. “In liver cirrhosis, drug distribution is fundamentally altered by changes

in body composition and vascular hemodynamics. The expansion of extracellular fluid

volume (e.g., ascites or edema) increases the volume of distribution for hydrophilic

drugs and decreases the volume of distribution for lipophilic drugs. Cirrhosis also

reduces serum albumin levels, leading to higher free, active concentrations of highly

protein-bound medications.” WR 469-470. Further, “Cirrhosis significantly impairs

the liver's ability to metabolize lipophilic drugs into hydrophilic compounds for

excretion. This leads to increased drug bioavailability, a larger volume of distribution,

and longer half-lives.” Id. Finally, Mr. Spencer’s condition affects his ability to

produce blood clots. “Normal clotting relies on the normal availability of liverproduced clotting factors and platelets. The liver produces a chemical that stimulates

platelet production in the bone marrow. Individuals such as Mr. Spencer have a

10

cirrhosis-induced reduction in both clotting factors and platelets. Mr. Spencer is at

constant risk of dangerous bleeding.” Id.

These are crucial biological processes impacted by cirrhosis, rather than mere

conjecture, as suggested by the State of Florida in litigation below. By virtue of the

many serious health issues with which Mr. Spencer presents, even if the etomidate

is administered in a manner consistent with the department’s protocols, “[t]he results

of this will be the exaggerated toxicity of etomidate, including an exaggerated

hemodynamic impact that might spike up his blood pressure. In that instance, his

esophageal varices might burst, and blood will pour from his mouth, choke him, and

be easily visible to witnesses.” See WR 470.

“Our cases recognize that subjecting individuals to a risk of future harm—not

simply actually inflicting pain—can qualify as cruel and unusual punishment. To

establish that such exposure violates the Eighth Amendment, however, the

conditions presenting the risk must be ‘sure or very likely to cause serious illness and

needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” Baze v. Rees, 553

U.S. 35, 49–50, (2008), citing Helling v. McKinney, 509 U.S. 25, 33, 34–35, 113 S.Ct.

2475, 125 L.Ed.2d 22 (1993) “We have explained that to prevail on such a claim there

must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm’

that prevents prison officials from pleading that they were ‘subjectively blameless for

purposes of the Eighth Amendment.’” Id., citing Farmer v. Brennan, 511 U.S. 825,

842, 846, and n. 9, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Had an evidentiary

11

hearing been granted, Dr. Joel Zivot could have expanded further on the issues. Any

deviation from the protocol could have highly dangerous results.

However, even without full evidentiary development, the specter of future

harm exists here. What Spencer presents to this Court is not a type of pain that is

inherently part of death, he presents this Court a circumstance that is sure or very

likely to risk of needless pain. The risk of needless pain caused by compromised

etomidate cannot rationally be considered unfortunate but inevitable and only

intensifies the sentence of death with cruel terror, pain, and disgrace. See, Baze, 553

U.S. at 48 (Thomas, J. concurring in judgment).

Future harm can qualify as cruel and unusual punishment. “[T]he conditions

presenting the risk must be ‘sure or very likely to cause serious illness and needless

suffering,’ and give rise to ‘sufficiently imminent dangers.’” Id. at 50 (citing, Helling

v. McKinney, 509 U.S. 25, 33, 34–35, (1993) (emphasis added)). “[T]here must be a

‘substantial risk of serious harm,’ and ‘objectively intolerable risk of harm’ that

prevents prison officials from pleading that they were ‘subjectively blameless for

purposes of the Eighth Amendment.’” Baze v. Rees, 553 U.S. at 50 (citing, Farmer v.

Brennan, 511 U.S. 825, 842, 846 and n.9 (1994)).

a.

Spencer has pled facts sufficient for a finding that DOC’s

protocol deviations amount to risk that is sure or very likely to cause serious

illness and needless suffering, giving rise to imminent danger during his

upcoming execution.

Although Spencer was denied public records to support his claim and an

evidentiary hearing to present his claim to the lower court, Spencer sufficiently pled

12

that the use of expired etomidate was sure to present needless suffering giving rise

to sufficient imminent danger during his execution.

Etomidate provides a short duration of sedation.4 Using etomidate which has

reached its expiration or surpassed its expiration creates a substantial risk of

needless pain and cruelty during the execution. In a clinical setting, “[p]atients given

etomidate and rocuronium may also regain consciousness after 5 minutes; however,

they remain paralyzed due to the longer duration of action of rocuronium. Patients

in this situation may be fully awake yet unable to alert bedside clinicians… ”5

The State of Florida argued below that Dr. Zivot could only speculate that

utilizing expired drugs may produce unanticipated or unnecessary complications

resulting in unnecessary pain or discomfort prior to the inmate’s death. WR 280. This

conclusion is misleading. “In liver cirrhosis, drug distribution is fundamentally

altered by changes in body composition and vascular hemodynamics. The expansion

of extracellular fluid volume (e.g., ascites or edema) increases the volume of

distribution for hydrophilic drugs and decreases the volume of distribution for

lipophilic drugs. Cirrhosis also reduces serum albumin levels, leading to higher free,

active concentrations of highly protein-bound medications.” WR 469-470. Further,

4 Calvin Hwang, PharmD, BCEMP et al., Impact of paralytic choice on postintubation sedation and

analgesia in the emergency department, 82 (suppl 3), Am J. Health-Syst Pharm, Jun. 1, 2025, at 2929

(“about 3 to 5 minutes.”).

5 Calvin Hwang, PharmD, BCEMP et al., Impact of paralytic choice on postintubation sedation and

analgesia in the emergency department, 82 (suppl 3), Am J. Health-Syst Pharm, Jun. 1, 2025, at 2929,

2930 (Further indicating “[a]wareness has been reported in up to 7.4% of patients intubated with

rocuronium and is an event that may cause significant physiological and psychological morbidity.”).

13

“Cirrhosis significantly impairs the liver's ability to metabolize lipophilic drugs into

hydrophilic compounds for excretion. This leads to increased drug bioavailability, a

larger volume of distribution, and longer half-lives.” Id. “The FDOC lethal injection

protocol makes no provisions to account for coexisting medical conditions.” WR 470.

The possibility that Mr. Spencer’s condition could affect the efficacy of the drugs is

simply dismissed by the state as speculative. However, Dr. Zivot’s conclusions are

based on studies and science.

These are crucial biological processes impacted by cirrhosis, rather than mere

conjecture, as suggested in the answer brief. By virtue of the many serious health

issues with which Mr. Spencer presents, even if the etomidate is administered in a

manner consistent with the department’s protocols, “[t]he results of this will be the

exaggerated toxicity of etomidate, including an exaggerated hemodynamic impact

that might spike up his blood pressure. In that instance, his esophageal varices might

burst, and blood will pour from his mouth, choke him, and be easily visible to

witnesses.” See WR 470.

What is known is that expired drugs are compromised. Uncompromised

etomidate is necessary to render the person unconscious to ensure Florida’s execution

procedure adheres to constitutional standards. Waiting to see whether Mr. Spencer’s

constitutional protections against cruel and unusual punishment are violated by the

State of Florida’s non-adherence to protocol will render Mr. Spencer unlawfully

14

executed and beyond the reach of any judicial remedy, whilesubsequent inmates

remain vulnerable to the very same unconstitutional cruelty.

The potential utilization of expired etomidate to carry out Spencer’s execution

presents dangers, actual and constitutional, that cannot be overlooked. Etomidate is

the first drug of the protocol, and its purpose is to induce “unconsciousness” of the

inmate during their execution. Unconsciousness of the inmate when the second and

third drugs are administered is a crucial component of lethal injection’ constitutional

validity, as it can greatly reduce any sensations of pain experienced by the inmate

during the administration of the second and third drugs. See generally, Glossip v.

Gross, 576 U.S. 863, 886-7 (2015); Baze v. Rees, 553 U.S. 35, 120 (2008) (Ginsburg, J.

dissent) (acknowledging Florida’s consciousness check). It is well understood the use

of etomidate is intended to render an inmate “unconscious” to alleviate the pain of

the second and third drugs killing them. However, the “consciousness” check can no

longer stand as a safeguard when the DOC is using compromised etomidate.

Utilizing what appears to be expired etomidate to carry out executions in the

State of Florida would be the very maladministration of Lethal Injection Protocols

contemplated by constitutional protections against cruel and unusual punishment.

Florida

Department

of

Correction's

complacent

approach

to

its

duty

to

constitutionally carry out lethal injection executions is not a mere “one-off” but rather

a pattern of significant deviations which would leave the men to be executed fully

conscious but utterly paralyzed. This is the very type of undignified and torturous

15

death this Court has condemned as unconstitutional. See Bucklew v. Precythe, 587

U.S. 119, 132 (2019).

The allegations detailed above are neither conclusory nor speculative; instead,

they rely on the DOC’s own records which detail specific instances in which the

department falls well short of what is required by constitution and conscience. DOC’s

documented, repeated maladministration of its own procedures destroys any

confidence that it will comply with the procedures in Mr. Spencer’s case. As such, Mr.

Spencer has established that DOC’s abrogation of its own protocol creates a “sure or

very likely risks of sufficiently imminent danger.” Asay v. State, 224 So. 3d 695, 701

(Fla. 2017).

b.

The protocol as applied is flawed due to its inherent one size fits all

methodology- if made flexible to adapt to an individual inmate, alternative

execution method is unnecessary.

The Florida DOC lethal injection protocol makes no provisions to account for

coexisting medical conditions. Because of his long-standing cirrhosis of the liver, Mr.

Spencer is at constant risk of dangerous bleeding. WR 469-470. The execution of Mr.

Spencer will be carried out in violation of Florida’s Lethal Injection Protocol causing

a substantial risk of needless pain and cruelty. These circumstances are made more

likely by virtue of Mr. Spencer’s medical conditions, merely hoping they do not occur

is an insufficient constitutional safeguard as the harm inflicted would be irreparable.

In addition to the general concerns with Florida DOC’s ability to adhere to its

own protocols, Mr. Spencer is specifically concerned by whether his host of infirmities,

16

not the least of which is compromised veinous access, will complicate the

administration of the execution drugs. In Mr. Spencer’s case, even if the protocol is

followed, “he will be exposed to a much larger than usual quantity of etomidate. The

results of this will be the exaggerated toxicity of etomidate, including an exaggerated

hemodynamic impact that might spike up his blood pressure.

In that instance, his esophageal varices might burst, and blood will pour from

his mouth, choke him, and be easily visible to witnesses.” See WR 469, Appendix E.

Further, “[i]ndividuals such as Mr. Spencer have a cirrhosis-induced reduction in

both clotting factors and platelets. Mr. Spencer is at constant risk of dangerous

bleeding.” Id. Veinous access is a prominent issue in the administration of lethal

injection drugs, as was demonstrated in the state of Tennessee.

Recently, the state of Tennessee granted Tony Carruthers a one-year reprieve

after the state struggled for over an hour to find a vein and it was reported that he

bled during the attempt.6 The DOC lethal injection protocol makes no provisions to

account for coexisting medical conditions. The DOC lethal injection protocol requires

the placement of two intravenous lines, generally in the arms, but if this fails, a

central line may be placed by a technique involving a surgical procedure known as a

cut down. A cutdown opens the skin to identify and cannulate a vein that is otherwise

not visible. Cutting into the skin or placing an intravenous into the skin of a person

See USA Today, 'Torturous': Botched Tennessee execution sparks US death row debate,

https://www.usatoday.com/story/news/nation/2026/05/28/botched-tennessee-execution-tonycarruthers-christa-pike/90268533007/, last accessed June 10, 2026.

6

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with cirrhosis will cause significant bleeding. WR 470. In Mr. Spencer’s case, the

bleeding could be excessive if such a complication arose. See WR 470.

This Court recognized in Glossip v. Gross, petitioners have the burden of

establishing that any risk of harm was substantial when compared to a known and

available alternative when asserting that the lethal injection method is

unconstitutional. 576 U.S. at 878. In Glossip, like in Baze, petitioners asserted that

the method of execution violated the Eighth Amendment protections. 576 U.S. 863.

Four years later, this Court in Bucklew v. Precythe, emphasized its rulings in both

Baze and Glossip and reaffirmed that all Eighth Amendment challenges to

executions, whether the entire method is challenged or the method as-applied to the

inmate, must satisfy both prongs of the Baze-Glossip test. The Baze-Glossip test

creates conflict between the test and this Court’s Eighth Amendment jurisprudence.

The Baze-Glossip test is inapplicable to inmates who challenge their imminent

execution when a state’s deviation from the accepted lethal injection protocol

supports a substantial risk of needless pain or if the inmate simply needs an

adjustment to prevent a catastrophic issue. Inmates will never satisfy the second

prong of Baze-Glossip requiring a feasible alternative be identified because a “protocol

deviation” challenge is neither a facially unconstitutional challenge nor an as-applied

challenge. The Baze-Glossip test prevents judicial scrutiny of a state’s protocol

deviation.

18

First, by the very nature of a maladministration challenge, inmates are

asserting that the accepted protocol would be the very alternative they are seeking.

Inmates seeking independent investigations into whether the department of

corrections is carrying out executions in accordance with the constitution, are

prevented from any remedy. The very state contesting the assertion is the same entity

which stands as a roadblock from seeking reasonable relief. While departments of

corrections ordinarily have a presumption that they are carrying out their duties in

accordance with the constitution, the Baze-Glossip test, shields departments of

corrections from judicial scrutiny even when inmates have overcome such a

presumption. This Court’s jurisprudence conflicts with any ability for inmates to seek

any reasonable remedy.

Secondly,

an

alternative

method

of

execution

is

impractical

in

maladministration challenges. Simply, why would inmates have any confidence in a

department of corrections ability to follow a different protocol if it is not following the

one already in place? Without meaningful judicial scrutiny, after a pattern of

deviations which create a needless suffering, departments of corrections are allowed

to continue to act without accountability. The precedent set by this Court forecloses

inmates from challenging the dangerous conduct of the department of corrections.

This Court has referred to the safeguards and procedures put in place by states to

prevent needless torture and suffering. However, when departments of corrections no

longer comply with the safeguards, the protocols are meaningless.

19

Petitioner acknowledges that inmates are not entitled to a painless death. The

respondents are most certain to point out that methods of execution were seemingly

more painful at the time of the adoption of the Eighth Amendment. In that same vein,

executions were also public. Executions were not carried out in the secrecy of an

“execution chamber” in which even those that are witnessing the execution only see

a mere glimpse of what is occurring as the executioner, hidden from sight, injects

drugs from behind a wall. The Founding Fathers would equally be astounded by the

secrecy of governmental agencies taking the life of the condemned. In the State of

Florida, executions were carried out publicly until 1924. Fla. Stat. Ch. 9169 § 6124

(1924). Even after executions were removed from general public viewing, the

executions were “in the presence of a jury of twelve respectable citizens who shall be

requested to be present.” Fla. Stat. Ch. 9169 § 6125 (1924).

Florida’s impenetrable veil of secrecy concerning the way executions are being

conducted today, goes against the philosophies of originalism and exacerbates the

conflict created by the opinions in Baze and Glossip.

CONCLUSION

For the foregoing reasons, Spencer respectfully requests that this Court grant

the petition for writ of certiorari to review the judgment of the Florida Supreme

Court.

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Respectfully submitted,

/s/ Julissa R. Fontan

JULISSA R. FONTAN

FLORIDA BAR NO. 0032744

ASSISTANT CCRC

CAPITAL COLLATERAL REGIONAL

COUNSEL - MIDDLE REGION

12973 N. TELECOM PARKWAY

TEMPLE TERRACE, FL 33637

TELEPHONE: (813) 558-1600

COUNSEL FOR PETITIONER

JUNE 22, 2026

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