Opposition Brief — Dusty Ray Spencer, Petitioner v. Florida
Supreme Court briefJun 23, 2026
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No. 25-7648
IN THE
SUPREME COURT OF THE UNITED STATES
DUSTY RAY SPENCER,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF FLORIDA
BRIEF IN OPPOSITION
EXECUTION SCHEDULED FOR JUNE 25, 2026, AT 6:00 P.M.
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
Office of the Attorney General
3507 E. Frontage Rd., Ste. 200
Tampa, Florida 33607
Telephone: (813) 287-7900
scott.browne@myfloridalegal.com
capapp@myfloridalegal.com
SCOTT A. BROWNE
Chief Assistant Attorney General
Counsel of Record
JOSHUA E. SCHOW
ASSISTANT ATTORNEY GENERAL
DORIS MEACHAM
SPECIAL COUNSEL, ASSISTANT ATTORNEY GENERAL
COUNSEL FOR RESPONDENT
OUNSEL
CAPITAL CASE
QUESTION PRESENTED
Does the Baze-Glossip standard, which this Court has already explained governs “all
Eighth Amendment method-of-execution claims,” Bucklew v. Precythe, 587 U.S. 119,
134 (2019), apply to a method-of-execution challenge premised on alleged failures to
follow the State’s lethal injection protocol?
i
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. i
TABLE OF CONTENTS ................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................... iii
OPINION BELOW ......................................................................................................... 1
JURISDICTION ............................................................................................................. 1
CONSTITUTIONAL PROVISIONS INVOLVED......................................................... 1
STATEMENT OF THE CASE AND FACTS ................................................................ 1
REASONS FOR DENYING THE PETITION .............................................................. 7
Spencer’s method-of-execution challenge does not merit review because the
decision below was premised on independent and adequate state law grounds,
this Court has already decided the question presented, Spencer has identified
no conflict with other courts, and he is unlikely to obtain relief on his
underlying claim..................................................................................................... 7
I.
This Court lacks jurisdiction to decide the question presented
because the decision below rests on independent and adequate state law
grounds. ............................................................................................................... 8
II.
This Court has already settled the question presented. ....................... 9
III.
Spencer identifies no conflict with other courts. ................................. 10
IV.
Spencer’s case is a poor vehicle to review the question presented
because he is unlikely to obtain relief on his underlying claim. ..................... 13
A.
Spencer’s allegations about his medical conditions did not
demonstrate that there is an imminent risk of Spencer
experiencing serious illness or needless suffering. .................................... 14
B.
Spencer failed to show the alleged protocol deviations
created an imminent risk of causing serious illness or needless
suffering. ...................................................................................................... 15
C.
Spencer’s allegations about the alleged protocol deviations
are unsupported by the records he references. ........................................... 18
CONCLUSION............................................................................................................. 20
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) ................................................................................................... 13
Apprendi v. New Jersey,
530 U.S. 466 (2000) ..................................................................................................... 4
Associated Press v. Neal,
No. 25-2025, 2026 WL 1616000 (7th Cir. June 5, 2026) ......................................... 13
Baze v. Rees,
553 U.S. 35 (2008) ............................................................................. 11, 13, 17, 19, 20
Brady v. Maryland,
373 U.S. 83 (1963) ....................................................................................................... 4
Brewer v. Landrigan,
562 U.S. 996 (2010) ............................................................................................. 16, 19
Bucklew v. Precythe,
587 U.S. 119 (2019) ....................................................................... 1, 10, 11, 13, 15, 17
Clemons v. Crawford,
585 F.3d 1119 (8th Cir. 2009) ................................................................................... 12
Cooey v. Strickland,
589 F.3d 210 (6th Cir. 2009) ..................................................................................... 12
Creech v. Tewalt,
94 F.4th 859 (9th Cir. 2024) ..................................................................................... 12
Foster v. Chatman,
578 U.S. 488 (2016) ..................................................................................................... 8
Giglio v. United States,
405 U.S. 150 (1972) ..................................................................................................... 4
Gissendaner v. Comm’r, Ga. Dep’t of Corr.,
803 F.3d 565 (11th Cir. 2015) ................................................................................... 12
Glossip v. Gross,
576 U.S. 863 (2015) ....................................................................................... 10, 16, 19
Heath v. Florida,
2026 WL 363902 (Mem.) ........................................................................................... 20
Heath v. State,
426 So. 3d 1253 (Fla.) ................................................................................................. 7
iii
Herb v. Pitcairn,
324 U.S. 117 (1945) ................................................................................................... 15
Hitchcock v. Florida,
2026 WL 1170862 (Mem.) ......................................................................................... 20
Howell v. State,
133 So. 3d 511 (Fla. 2014) ........................................................................................ 19
In re Ohio Execution Protocol,
860 F.3d 881 (6th Cir. 2017) ..................................................................................... 16
King v. Florida,
2026 WL 730666 (Mem.) ........................................................................................... 20
Long v. State,
271 So. 3d 938 (Fla. 2019) ........................................................................................ 19
Lukehart v. Florida,
2026 WL 1530138 (Mem.) ......................................................................................... 20
Matsushita Elec. Indus. Co. v. Epstein,
516 U.S. 367 (1996) ................................................................................................... 13
Montana v. Wyoming,
563 U.S. 368 (2011) ..................................................................................................... 9
Nichols v. Skrmetti,
No. 25-6095, 2025 WL 3523010 (6th Cir. Dec. 5, 2025) .......................................... 12
Rice v. Sioux City Mem’l Park Cemetery,
349 U.S. 70 (1955) ..................................................................................................... 15
Rockford Life Ins. Co. v. Ill. Dep’t of Revenue,
482 U.S. 182 (1987) ................................................................................................... 11
Roper v. Simmons,
543 U.S. 551 (2005) ..................................................................................................... 6
Schwab v. State,
995 So. 2d 922 (Fla. 2008) ........................................................................................ 19
Spencer v. Crosby,
No. 6:03-CV-991-ORL-28, 2006 WL 7069916 (M.D. Fla. Sep. 7, 2006) .................... 5
Spencer v. Florida,
522 U.S. 884 (1997) .................................................................................................... 4
Spencer v. McNeil,
562 U.S. 1203 (2011) ................................................................................................... 5
Spencer v. State,
23 So. 3d 712 (Fla. 2009) ........................................................................................ 5, 6
iv
Spencer v. State,
259 So. 3d 712 (Fla. 2018) .......................................................................................... 5
Spencer v. State,
645 So. 2d 377 (Fla. 1994) .............................................................................. 1, 2, 3, 4
Spencer v. State,
691 So. 2d 1062 (Fla. 1996) ........................................................................................ 4
Spencer v. State,
842 So. 2d 52 (Fla. 2003) ........................................................................................ 4, 5
Spencer v. State,
No. SC2026-0880, 2026 WL 1757938 (Fla. June 18, 2026) ............... 1, 6, 7, 8, 16, 17
Trotter v. Florida,
146 S. Ct. 755 (2026) ................................................................................................. 20
Troy v. State,
57 So. 3d 828 (Fla. 2011) .......................................................................................... 21
United States v. Armstrong,
517 U.S. 456 (1996) ................................................................................................... 20
Walker v. Martin,
562 U.S. 307 (2011) ..................................................................................................... 8
Walls v. Florida,
2025 WL 3674295 (Mem.) ......................................................................................... 20
West v. American Telephone & Telegraph Co.,
311 U.S. 223 (1940) ..................................................................................................... 9
Whitaker v. Collier,
862 F.3d 490 (5th Cir. 2017) ............................................................................... 12, 18
Willacy v. Florida,
2026 WL 1074143 (Mem.) ......................................................................................... 20
Statutes
28 U.S.C. § 1257(a) ........................................................................................................ 1
U.S. Const. amend. VIII .............................................................................................. 15
Rules
Fla. R. Crim. P. 3.851(d) ................................................................................................ 7
v
OPINION BELOW
Spencer seeks certiorari review of the Florida Supreme Court’s decision
rejecting his Eighth Amendment challenge. See Spencer v. State, No. SC2026-0880,
2026 WL 1757938 (Fla. June 18, 2026).
JURISDICTION
This Court has jurisdiction over Spencer’s questions. See 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS INVOLVED
The State accepts the constitutional provision set forth by Spencer.
STATEMENT OF THE CASE AND FACTS
Appellant, Dusty Ray Spencer, received a death sentence for savagely beating
and stabbing his wife to death—in front of her teenage son—after he had engaged in
an escalating pattern of domestic abuse, including a previous attempt to murder her
two weeks prior. Spencer was convicted, sentenced, re-sentenced, and unsuccessfully
sought to overturn his conviction three times in state court and once in federal court
before the signing of his death warrant.
Facts of the Crime
On December 10, 1991, Spencer was arrested after physically attacking and
threatening to kill his wife, Karen Spencer. Spencer v. State, 645 So. 2d 377, 379 (Fla.
1994). On January 4, 1992, Spencer returned to Karen’s residence in the evening and
attacked Karen a second time. Id. Timothy Johnson, Karen’s teenage son, witnessed
Spencer pinning Karen down while repeatedly striking her. Id. Timothy tried to pull
1
Spencer off Karen, but Spencer—who had been using a clothing iron to beat his wife—
struck Timothy in the head with the iron. Id. Both Karen and Timothy fled the
residence then received treatment for their wounds at the hospital. Id.
Two weeks later, on January 18, 1992, Spencer returned to Karen’s residence.
Id. Spencer parked his car away from the residence, donned plastic gloves, and armed
himself with a steak knife before entering the residence to violently attack Karen for
the third time. Id. at 381. Timothy again tried to intervene when he came upon
Spencer attacking Karen in the backyard. Undeterred by Timothy’s attempt to stop
the attack, Spencer slammed Karen’s head into the concrete wall of the house three
times, all while Karen was pleading with Spencer to stop. Id. at 380–81. Spencer then
threatened Timothy with the steak knife, so Timothy fled the scene. Id. at 380.
Sometime during Spencer’s brutal attack, Spencer slashed Karen’s face and
arms multiple times with the steak knife. Id. at 380. The medical examiner concluded
those injuries could only have been inflicted while Karen was still conscious and
trying to defend herself. Id. at 380, 384. Spencer also stabbed Karen four to five times
in the chest; including two fatal wounds, one to her heart and the other to her lungs.
Id. at 384. By the time law enforcement arrived, Spencer had fled and Karen was
already dead from blood loss. Id. at 380–81.
Trial and Direct Appeals
At the conclusion of the guilt phase, the jury convicted Spencer of two counts
for the January 18 attack: (Count 1) first-degree murder (against Karen), and (Count
2) aggravated assault (against Timothy); and two counts for the January 4 attack:
2
(Count 3) attempted second-degree murder (against Karen)1, and (Count 4)
aggravated battery (against Timothy). Id. at 380. At the close of the penalty phase,
the jury recommended a death sentence, by a seven to five vote. Id. The trial court
found three aggravating circumstances were proven: (1) previous commission of a
violent felony based on the aggravated assault, aggravated battery, and attempted
second-degree murder convictions (prior violent felony), (2) the murder was especially
heinous, atrocious, or cruel (HAC); and (3) the murder was cold, calculated, and
premeditated (CCP). Id. The trial court also found no statutory mitigating
circumstances were proven but found the defendant’s history and background
qualified as a non-statutory mitigating circumstance. Id. Ultimately, the trial court
followed the jury’s recommendation and sentenced Spencer to death. Id.
On direct appeal, a narrow majority of the Florida Supreme Court found that
two of the issues Spencer raised merited a remand to the trial court to conduct a
resentencing: (1) the evidence was insufficient to support the trial court’s finding that
the State had proven CCP, and (2) the trial court improperly rejected the evidence
Spencer presented to prove his statutory mitigating circumstances. Id. at 380–85.
Upon remand, the trial court sentenced Spencer to death a second time finding the
two remaining aggravating circumstances (prior violent felony and HAC)
significantly outweighed the mitigation presented. 2 Spencer v. State, 691 So. 2d 1062,
1 Spencer was charged with attempted first-degree murder, but the jury found him
guilty of the lesser-included offense. Id.
2 In compliance with the Florida Supreme Court’s ruling, the trial court found that
3
1063 (Fla. 1996). Spencer appealed, but the Florida Supreme Court affirmed
Spencer’s renewed death sentence. Id. at 1065–55. This Court denied certiorari
review on October 6, 1997. Spencer v. Florida, 522 U.S. 884 (1997).
Relevant Postconviction Proceedings
Beginning in September 1999, Spencer challenged his conviction and sentence
with an initial postconviction motion and a habeas petition alleging a combination of
prosecutorial misconduct (including alleged Brady3 and Giglio4 violations), ineffective
assistance of trial and appellate counsel, improper pretrial publicity, and an
Apprendi5 violation. Spencer v. State, 842 So. 2d 52, 59–60, 72 (Fla. 2003). The Florida
Supreme Court found these claims were meritless, procedurally barred, or both. Id.
at 60–76. Spencer did not file a petition for writ of certiorari to this Court.
From 2003 until 2006, Spencer unsuccessfully challenged his conviction and
sentence in the Middle District of Florida. Spencer v. Crosby, No. 6:03-CV-991-ORL28, 2006 WL 7069916, at *1–32 (M.D. Fla. Sep. 7, 2006). The Eleventh Circuit Court
of Appeals granted Spencer a Certificate of Appealability (COA) on one claim but
three mitigating circumstances had been proven: (1) the murder was committed
under the influence of extreme mental or emotional disturbance, (2) Spencer’s
capacity to appreciate the criminality of his conduct or to conform his conduct to the
requirements of the law were substantially impaired, and (3) various non-statutory
mitigating circumstances related to Spencer’s life circumstances. Id.
3 Brady v. Maryland, 373 U.S. 83 (1963).
4 Giglio v. United States, 405 U.S. 150 (1972).
5 Apprendi v. New Jersey, 530 U.S. 466 (2000).
4
ultimately concluded the district court correctly denied Spencer’s petition. Spencer v.
Sec’y, Dep't of Corr., 609 F.3d 1170, 1174 (11th Cir. 2010).6 Spencer also
unsuccessfully raised successive state postconviction challenges beginning in 2007
and 2017. Spencer v. State, 23 So. 3d 712 (Fla. 2009) (table); Spencer v. State, 259 So.
3d 712, 713 (Fla. 2018).
Spencer’s 2007 successive state postconviction motion raised, among other
things, a facial and as-applied Eighth Amendment challenge to Florida’s lethal
injection protocol. Spencer v. State, 23 So. 3d 712 (Fla. 2009) (table). Both the trial
court and the Florida Supreme Court rejected the facial constitutional challenges as
meritless and foreclosed by precedent. Id. As to his as-applied challenge, the Florida
Supreme Court found this claim was legally insufficient “because he failed to identify
the medical conditions that would contribute to difficulty gaining venous access and
he did not allege that such conditions presently exist.” Id. Spencer did not file a
petition for writ of certiorari in this Court.
Death Warrant Proceedings
On May 26, 2026, Governor Ron DeSantis signed a warrant for Spencer’s
execution, which is scheduled for June 25, 2026, at 6:00 p.m. R:122.7 On June 3, 2026,
Spencer filed his third successive postconviction motion alleging a method-of-
6 This Court denied certiorari review on January 24, 2011. Spencer v. McNeil, 562
U.S. 1203 (2011).
7 The postconviction court record for the death warrant proceedings will be cited as
R:[Page Number].
5
execution challenge premised on his medical conditions and alleged deviations in the
implementation of the Florida Department of Corrections’ (FDC)8 lethal injection
protocol. R:343–59. Spencer’s motion never identified an alternative method of
execution.9
On June 09, 2026, the trial court summarily denied Spencer’s third successive
postconviction motion. R:560–76. Spencer appealed the summary denial to the
Florida Supreme Court. R:600. On June 18, 2026, the Florida Supreme Court
affirmed the trial court’s summary denial of Spencer’s claims, finding Spencer’s
claims were untimely and meritless. Spencer, 2026 WL 1757938, at *4–7 (Fla. June
18, 2026). Specifically, the Florida Supreme Court found Spencer’s lethal injection
challenge was untimely because it hinged on his claims about his medical conditions,
which he had been aware of for nearly a decade, not any of the protocol deviations
that Spencer alleged. Id. at *4. Under Florida Rule of Criminal Procedure 3.851(d),
then, Spencer’s claim was untimely. Id. The Florida Supreme Court also found
Spencer’s claim was meritless because (1) as the court had noted with other identical
claims, even if his speculative assertions about the inventory logs were true, they did
8 Respondent uses FDC to refer to the Florida Department of Correction in this brief
because it is the abbreviation the Florida Department of Corrections uses in their
agency insignia and in their pleadings. See R:271; Florida Department of Corrections,
https://www.fdc.myflorida.com (last accessed June 22, 2026).
Spencer also raised a “reverse-Roper v. Simmons”, 543 U.S. 551 (2005), claim
suggesting Spencer was exempt from execution because he is elderly. R:353–59. He
has abandoned that claim in this Court.
9
6
not establish that there was an imminent risk that his execution would inflict serious
illness or needless suffering, Id. at *5. (citing Heath v. State, 426 So. 3d 1253, 1262
(Fla.), cert. denied, 223 L. Ed. 2d 587 (2026); (2) Spencer’s complaints about his
medical conditions were speculative and conclusory, id. at *5, and (3) Spencer failed
to identify any alternative method of execution. Id. at *6.
REASONS FOR DENYING THE PETITION
Spencer’s method-of-execution challenge does not merit review because the
decision below was premised on independent and adequate state law
grounds, this Court has already decided the question presented, Spencer
has identified no conflict with other courts, and he is unlikely to obtain
relief on his underlying claim.
Spencer wishes to excuse himself from this Court’s longstanding precedent
that he must identify an alternative method of execution. Pet. at 18–19. Because he
was not granted an evidentiary hearing to develop his subclaims about whether FDC
was deviating from its protocol, Spencer provides a lengthy recitation of the evidence
as he sees it. Pet. at 7–12. Yet, Spencer does not address what the Florida Supreme
Court decided about his previous recitations. Spencer ignores the Florida Supreme
Court’s finding that his method-of-execution challenge was untimely, and he
completely disregards the court’s explanation that, even if his allegations were
entirely true, Spencer’s claim did not demonstrate that there was an imminent risk
that his execution would result in serious illness or needless suffering. This Court’s
existing precedent even answers the question Spencer now wishes this Court to
revisit. There is no reason to indulge Spencer’s transparent attempts to forestall his
long-deserved execution.
7
I.
This Court lacks jurisdiction to decide the question
presented because the decision below rests on independent and
adequate state law grounds.
When both state and federal questions are involved in a state court proceeding,
this Court has no jurisdiction to review the case if the state court judgment rests on
a state law ground that is both independent of the merits of the federal claim and an
adequate basis for the state court’s decision. See Foster v. Chatman, 578 U.S. 488,
497 (2016). Here, the Florida Supreme Court’s decision found that Spencer’s entire
method-of-execution challenge was untimely under Florida state procedural rules.
See Spencer, 2026 WL 1757938, at *4. Time bars are independent and adequate state
law grounds for rejecting a claim. See Walker v. Martin, 562 U.S. 307, 316–17 (2011)
(finding California’s time bar qualified as an adequate state procedural ground that
barred habeas relief in federal courts).
Spencer addresses the issue of timeliness by baldly asserting he “could not
have brought” his claim “at an earlier time.” Pet. at 7. He provides no further
elucidation on this point. The question of timeliness is a state law issue over which
the Florida Supreme Court, rather than this Court, has the final say. See Montana v.
Wyoming, 563 U.S. 368, 377 n.5 (2011) (explaining that the highest court of each State
is the “final arbiter of what is state law”) (quoting West v. American Telephone &
Telegraph Co., 311 U.S. 223, 236 (1940)). Thus, the Florida Supreme Court’s decision
is controlling, and this Court lacks jurisdiction to consider the question presented.
8
II.
This Court has already settled the question presented.
Spencer argues that any Eighth Amendment challenge that includes alleged
deviations from a written protocol should be exempt from presenting an alternative
method of execution. Pet. at 16–19. But this Court has already decided this question
against Spencer’s current position. Because this Court has held, twice now, that
anyone “bringing a method of execution claim alleging the infliction of
unconstitutionally cruel pain must meet the Baze-Glossip test,” there is no need for
this Court to say so a third time. See Bucklew v. Precythe, 587 U.S. 119, 140 (2019).
This Court has clarified that presenting a known, readily implementable
alternative method of execution is a mandatory component of any method-ofexecution challenge. In Glossip¸ much the same as Spencer does here, the capital
defendants suggested that they did not need to present a known and available method
of execution so long as they show there is a risk of harm when the protocol is
administered. Glossip v. Gross, 576 U.S. 863, 879 (2015). But this Court dismissed
that contention outright. Id. at 879–81. In Bucklew, this Court also rejected an
attempt to excuse all as-applied challenge. Bucklew, 587 U.S. at 136. In doing so, this
Court emphasized that Glossip made it clear that “‘all Eighth Amendment methodof-execution claims’ alleging cruel pain” must identify an available alternative. Id.
(quoting Glossip, 576 U.S. at 867) (emphasis in original).
Spencer attempts to differentiate the question he presents by claiming that
protocol deviations are a different type of claim. Pet. at 18–19. But this Court has
already rejected this argument. In Baze, the capital defendants’ central claim was
9
that their execution would be cruel and unusual punishment “because of the risk that
the protocol’s terms might not be properly followed.” Baze v. Rees, 553 U.S. 35, 41
(2008) (plurality opinion). This Court determined the defendants failed to meet their
burden because they did not “show[] that the risk of pain from maladministration of
a concededly humane lethal injection protocol, and the failure to adopt untried and
untested alternatives, constitute cruel and unusual punishment.” Id. This Court then
cautioned lower courts not to grant a stay on similar claims unless “the demonstrated
risk of severe pain” is “substantial when compared to known and available
alternatives.” Id. at 61–62 (explaining the Eighth Amendment only prohibits “wanton
exposure to objectively intolerable risk, not simply the possibility of pain”). Spencer
does not even try to differentiate his claim; he just ignores Baze. Thus, the question
he presents to this Court amounts to “little more than an attack on settled precedent”
unworthy of this Court’s review. See Bucklew, 587 U.S. at 149.
III.
Spencer identifies no conflict with other courts.
Given the clear requirements in Baze, Glossip, and Bucklew, it is unsurprising
that Spencer has not named any post-Baze courts that agree with his position. That
alone makes the question presented unworthy of this Court’s review. See Sup. Ct. R.
10(a)–(b); Rockford Life Ins. Co. v. Ill. Dep’t of Revenue, 482 U.S. 182, 184 n.3 (1987)
(recognizing issues that have “divided neither the federal courts of appeals nor the
state courts” rarely merit this Court’s review). As far as Respondent can tell, every
federal
circuit
court
that
has
considered
claims
premised
on
alleged
maladministration of execution protocols has uniformly applied the Baze-Glossip test
10
and required defendants specify an alternative method of execution.10
While Spencer asserts that applying the Baze-Glossip test to his claim “creates
conflict” with this Court’s “Eighth Amendment jurisprudence,” he offers little to
explain his position other than offering vague platitudes about “prevent[ing] judicial
scrutiny.” Pet. at 18. Instead, he bafflingly veers into a suggestion that the Founding
Fathers would be appalled by the idea that executions were not public. Pet. at 20.
This Court can safely dispense with this risible argument for two reasons. First, it
was never raised in the proceedings below. See Adarand Constructors, Inc. v. Mineta,
534 U.S. 103, 110 (2001) (the Court is one of “final review and not first view”) (quoting
Matsushita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 399 (1996) (Ginsburg, J.,
concurring in part and dissenting in part)). Second, it is a non sequitur. The entire
10 See Nichols v. Skrmetti, No. 25-6095, 2025 WL 3523010, at *2 (6th Cir. Dec. 5, 2025)
(holding a defendant alleging a history of maladministration of the State’s execution
protocol failed, in part, because his proposed alternative method of execution was not
feasible and readily implementable), cert. denied, 146 S. Ct. 915 (2025); Gissendaner
v. Comm’r, Ga. Dep’t of Corr., 803 F.3d 565, 567–69 (11th Cir. 2015) (explaining that
a defendant who alleged that there is a significant risk that the State would deviate
from its protocol for compounding pentobarbital must state an alternative method of
execution); Cooey v. Strickland, 589 F.3d 210, 224–25 (6th Cir. 2009) (applying both
prongs of Baze to claims about the undue risk of “improper implementation of” the
execution protocols); Clemons v. Crawford, 585 F.3d 1119, 1125 (8th Cir. 2009)
(applying both prongs of Baze to a claim that “the protocol may be improperly
administered by incompetent or unqualified medical personnel”); see also Creech v.
Tewalt, 94 F.4th 859, 863 (9th Cir. 2024) (noting a method of execution challenge
failed because the defendant refused to identify an alternative method of execution),
cert. denied, 144 S. Ct. 1027 (2024); Whitaker v. Collier, 862 F.3d 490, 493, 499 (5th
Cir. 2017) (finding an Eighth Amendment challenge premised on the risk of using
compounded pentobarbital failed, in part, because the defendants did not sufficiently
plead an alternative method of execution).
11
reasons executions are no longer public is because of the much-vaunted “evolving
standards of decency” where States, starting as far back as 1830s, began to shy away
from making executions a matter of public spectacle. See Associated Press v. Neal,
No. 25-2025, 2026 WL 1616000, at *2–4 (7th Cir. June 5, 2026). If Florida had
returned to making executions public, Spencer would have come to this Court railing
about the barbarity of such a practice. While public executions were common during
the Founding Era, this fact has little Constitutional significance. Id., at *2–4 (7th Cir.
June 5, 2026) (explaining that the historic justifications for public access to criminal
proceedings do not apply to executions). The Founding generation would register no
objection to Florida’s lethal injection protocol because it does not seek to superadd
terror, pain, or disgrace to Spencer’s execution. Bucklew v. Precythe, 587 U.S. 119,
133 (2019) (explaining that the Eighth Amendment only prohibits punishments that
are designed to “superadd terror, pain, or disgrace”); Baze, 553 U.S. at 94–107
(Thomas, J., concurring) (explaining the historical context of “cruel and unusual
punishment” during the Founding Era only included the deliberate infliction of
gratuitous pain).
Spencer provides no meaningful analysis of why Baze, Glossip, and Bucklew
should be ignored or modified except to claim that it is inconvenient for his claim.
Pet. at 19. Because this Court has set forth the requirements for all Eighth
Amendment method-of-execution challenges, all other courts have followed this
Court’s dictates. Spencer can identify no conflict justifying further review.
12
IV.
Spencer’s case is a poor vehicle to review the question
presented because he is unlikely to obtain relief on his
underlying claim.
Even if this Court were inclined to excuse Spencer from providing an alternative
method of execution, Spencer is unlikely to succeed on the merits of his method-ofexecution challenge because the Florida Supreme Court correctly found that
Spencer’s claim failed to meet the first prong of the Blaze-Glossip test for multiple
reasons. The Eighth Amendment only bars “cruel and unusual punishments” not
protocol deviations. See U.S. Const. amend. VIII. Even when there are increased risks
due to underlying medical conditions, the Eighth Amendment prohibits the State
from “seeking to superadd terror, pain, or disgrace” to an execution but “does not
guarantee a prisoner a painless death—something that, of course, isn’t guaranteed to
many people, including most victims of capital crimes.” Bucklew, 587 U.S. at 132–33.
Yet Spencer’s presentation in the proceedings below fell woefully short of stating a
sufficient method-of-execution challenge. A decision by this Court on the question
presented would be a purely academic exercise that would not affect the underlying
judgment that the Florida Supreme Court rendered. See Rice v. Sioux City Mem’l
Park Cemetery, 349 U.S. 70, 74 (1955) (certiorari should not be granted when the
issue is only academic); Herb v. Pitcairn, 324 U.S. 117, 125–26 (1945) (stating
certiorari is the power “to correct wrong judgments, not to revise opinions”).
13
A.
Spencer’s allegations about his medical conditions did not
demonstrate that there is an imminent risk of Spencer
experiencing serious illness or needless suffering.
This Court has long understood that a valid Eighth Amendment method-ofexecution challenge must state “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.” Glossip, 576 U.S. at
877. Speculative harm is not enough. Brewer v. Landrigan, 562 U.S. 996 (2010)
(holding that “speculation cannot substitute for evidence that the use of the drug is
sure or very likely to cause serious illness and needless suffering”) (citations modified,
emphasis in original). The Baze-Glossip test requires capital defendants “to prove
their allegations to a high level of certainty,” and that burden cannot be shifted onto
the State. See In re Ohio Execution Protocol, 860 F.3d 881, 887 (6th Cir. 2017); see
also Glossip, 576 U.S. at 882 (holding capital defendants challenging a method of
execution bear “the burden to show, based on evidence presented to the court, that
there is a substantial risk of severe pain”). To that end, the Florida Supreme Court
rightly recognized that the speculative allegations that Spencer supplied to the lower
court did not amount to an Eighth Amendment violation. Spencer, 2026 WL 1757938,
at *5–6.
Spencer’s almost verbatim regurgitation of the arguments he made below does
little to demonstrate why the Florida Supreme Court erred in dismissing those same
arguments. Spencer opens by repeating a factually inaccurate claim that FDC’s lethal
injection protocol “makes no provisions to account for coexisting medical conditions.”
14
It does. R:416–17 (requiring that the inmate be screened for medical issues which
“could potentially interfere with the proper administration of the lethal injection
protocol”). His remaining assertions were all premised on conclusory suppositions
and a parade of horribles with no indication that any of those scenarios were likely
to occur or that Spencer would even be conscious should they occur. This is not the
first time that this Court was not convinced that Dr. Zivot’s averments about the
potential pain an inmate could experience demonstrated there was an imminent risk
of serious illness or needless suffering. See Bucklew, 587 U.S. at 128. Spencer offers
no compelling reason why this Court should treat his even more conclusory
allegations any differently.
B.
Spencer failed to show the alleged protocol deviations created an
imminent risk of causing serious illness or needless suffering.
Not every protocol deviation has Constitutional significance. See Baze, 553 U.S.
at 53–54. The Florida Supreme Court rightly recognized that, even if Spencer’s
speculative reading of FDC’s inventory log is correct, the alleged protocol deviations
he highlighted hardly rose to the level of an Eighth Amendment violation. Spencer,
2026 WL 1757938, at *5. Spencer’s presentation before this Court does little to
address the Florida Supreme Court’s assessment. In fact, the argument he presents
to this Court is essentially a carbon-copy of the one he presented below.
Spencer offers a potpourri of criticisms, but his most substantial contention
here is that FDC is allegedly using expired etomidate during executions. See Pet. at
12–16. But, as the State pointed out in the proceedings before the Florida Supreme
15
Court, just because a drug passes the manufacturer-labeled expiration date does not
mean the drug itself has lost all efficacy. See, e.g., Whitaker v. Collier, 862 F.3d 490,
493, 499 (5th Cir. 2017) (finding a defendant failed to state a sufficient method-ofexecution challenge even though the claim hinged on the risk of using expired
pentobarbital). Even if this Court were to assume there is some risk inherent in using
expired etomidate, Spencer’s expert presented no averments whatsoever about the
efficacy of etomidate once it passes the expiration date.
Much the same as he did in the proceedings below, Spencer argues, ipse dixit,
that expired etomidate must be dangerous while providing only a perfunctory citation
to an article that references patients’ responses to therapeutic doses of (unexpired)
etomidate—a citation he did not provide in his initial postconviction motion. See Pet.
at 13–15. The difference between a therapeutic dose of etomidate and the dose that
FDC provides during a lethal injection is not trivial. Therapeutic doses of etomidate
typically range from 10–30 mg. See, e.g. Ryane Pappal, et al., The ED-AWARENESS
Study: A prospective, observational cohort study of awareness with paralysis in
mechanically ventilated patients admitted from the emergency department, 77 Ann.
Emerg. Med. 532 (2021) (See Table 2). FDC’s protocol, however, calls for a massive
200 mg dose of etomidate, rendering an inmate “unconscious and insensate” for “at
least 30 minutes.” See Long v. State, 271 So. 3d 938, 944 (Fla. 2019) (emphasis
added). Spencer’s speculation was not sufficient to convince the Florida Supreme
Court of the merits of his concerns and Spencer offers no reason why the claims he
repeats here should persuade any members of this Court. Cf. Brewer, 562 U.S. at 996
16
(vacating a lower court’s temporary restraining order because there was no evidence
in the record that suggested execution drugs obtained from a foreign source were
unsafe).
Spencer’s myopic focus on allegedly inadequate documentation practices also
ignores other safeguards (like consciousness checks) that greatly lower the risk of
unconstitutional severe pain even if a deviation does occur. See Glossip, 576 U.S. at
886–87 (explaining this Court upheld a protocol even without a “consciousness
check”); Baze, 553 U.S. at 120 (Ginsburg, J., dissenting) (praising Florida’s
consciousness checks). Florida’s protocol contains such checks to ensure that—even
if an error occurred earlier—the condemned is insensate before the injection of the
paralytic and drug that stops the heart. See Long v. State, 271 So. 3d 938, 945 (Fla.
2019) (noting Florida’s protocol contains safeguards and checks to ensure “the
condemned is unconscious throughout the execution”).11 Spencer tells this Court that
those safeguards “can no longer stand” but beyond this perfunctory assertion, he
provides no explanation for why Florida’s consciousness checks are inadequate. See
Pet. at 15.
This Court has denied certiorari five times from Florida Petitioners citing the
11 The consciousness checks occur after the etomidate is fully administered and the
execution cannot proceed until the execution team has confirmed the inmate is
insensate. See Howell v. State, 133 So. 3d 511, 522 (Fla. 2014) (noting that a
consciousness check, which included a painful pinch of the trapezius would “ensure
that Howell is unable to perceive any noxious stimuli”); Schwab v. State, 995 So. 2d
922, 930 (Fla. 2008) (detailing the steps of a consciousness check that included a
shake and shout and eyeball tap).
17
same records that Spencer relies upon here. See Lukehart v. Florida, 2026 WL
1530138 (Mem.) (2026); Hitchcock v. Florida, 2026 WL 1170862 (Mem.) (2026);
Willacy v. Florida, 2026 WL 1074143 (Mem.) (2026) King v. Florida, 2026 WL 730666
(Mem.) (2026); Trotter v. Florida, 146 S. Ct. 755 (2026); Heath v. Florida, 2026 WL
363902 (Mem.) (2026); Walls v. Florida, 2025 WL 3674295 (Mem.) (2025). Spencer’s
retreat to tenuous claims premised on unsupported assumptions and disputed facts
does not render this case any more worthy of certiorari review than the other cases
that this Court has already rejected. Spencer offers no sound reason his case deserves
any different treatment.
C.
Spencer’s allegations about the alleged protocol deviations are
unsupported by the records he references.
This Court presumes that members of the executive branch properly discharge
their duties absent “clear evidence to the contrary.” See United States v. Armstrong,
517 U.S. 456, 464–65 (1996); see also Baze, 553 U.S. at 49–51, 53–56. But the evidence
Spencer presented in the proceedings below is murky at best. Spencer’s entire
premise about alleged protocol deviations rests on a false assumption. It would
perhaps make sense to assume every line-item in FDC’s inventory log was
documenting the drugs being used in a particular execution if that was what FDC’s
protocol called for, but FDC’s protocol requires no such record keeping. R:417; see also
Troy v. State, 57 So. 3d 828, 839 (Fla. 2011) (holding the protocol’s absence of specific
record-keeping requirements did not give rise to an Eighth Amendment claim).
Instead, FDC’s protocol requires the department to purchase the necessary drugs to
18
carry out a lethal injection, ensure the drugs do not pass their expiration date, and
confirm the chemicals are “correct and current.” R:417. Because the protocol does not
require the documentation Spencer presumes, his supposition that the inventory logs
reveal some maladministration of FDC’s protocol has no sound grounding.
Indeed, a more careful comparison of the records to Spencer’s claims illustrates
that his speculation is ill-supported. The inventory logs themselves do not list any
defendant’s names or document the purpose for which the drugs are being removed
from the inventory. While some of the dates in the inventory logs correspond with
days that capital defendants were executed, others do not. R:428, 452.12 Some days
even have multiple entries recording differing quantities of drugs being removed from
the inventory. Id. Spencer even pointed to one execution where the inventory log had
no corresponding line-item documenting etomidate being removed from the inventory
on the same or similar date as that inmate’s execution, yet etomidate was present in
that inmate’s system during his autopsy. R:344. Given the protocol does not require
line-item tracking of drugs broken out by each execution, a sounder reading of FDC’s
inventory logs would be that the logs are documenting the supply of drugs available
to FDC. Similarly, it is likely that the line-items documenting removal of drugs that
12 Given the frequency of executions in Florida over the past two years, it should not
be surprising that many of the dates reflected in the inventory log correspond closely
to dates that capital defendants were executed. See Florida Department of
Corrections, Execution List: 1976-Present,
https://www.fdc.myflorida.com/institutions/death-row/execution-list-1976-present
(last accessed June 22, 2026).
19
had past their expiration date was just FDC documenting that they were removing
the drugs from the inventory for the purpose of disposing of them. Spencer simply
ignores these other, more plausible, readings of the records while still insisting that
something must be amiss. His suppositions are a far cry from “clear evidence” that
FDC has been violating its own protocols. Thus, this Court can be confident that
Spencer’s underlying claims lack any merit.
CONCLUSION
Because Spencer fails to establish any compelling reason for this Court to
believe he is doing anything other than trying to delay his execution, his petition for
a writ of certiorari should be denied.
Respectfully submitted,
JAMES UTHMEIER
ATTORNEY GENERAL OF FLORIDA
Office of the Attorney General
3507 E. Frontage Rd., Ste. 200
Tampa, Florida 33607
Telephone: (813) 287-7900
scott.browne@myfloridalegal.com
capapp@myfloridalegal.com
/S/ SCOTT A. BROWNE
SCOTT A. BROWNE
Chief Assistant Attorney General
Counsel of Record
Joshua E. Schow
Assistant Attorney General
Doris Meacham
Special counsel, Assistant Attorney General
COUNSEL FOR RESPONDENT
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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.