IN THE SUPREME COURT OF THE UNITED STATES

J OHN RUTHELL HENRY,

Petitioner,
Case No.: ________________
v.
CAPITAL CASE
STATE OF FLORIDA, DEATH WARRANT

Respondent.
______________________________/

PETITION FOR WRIT OF CERTIORARI AND
REQUEST FOR STAY OF EXECUTION

COMES NOW the Petitioner, J ohn Ruthell Henry, a state prisoner under
sentence of death, through undersigned counsel, and petitions this Honorable Court
for a Writ of Certiorari under 28 U.S.C. 1257(a) and a Stay of Execution under
28 U.S.C. 2101(f). Petitioner is scheduled to executed on J une 18, 2014 at 6:00
P.M., and requests expedited consideration of this petition. In support thereof, the
Petitioner says:

2


CAPITAL CASE

Questions Presented for Review

I. Whether the Florida Supreme Courts reliance on the findings of a panel of
doctors selected by the Governor in a non-judicial proceeding to determine
Petitioners claim of intellectual disability violates the Eighth Amendment to the
United States Constitution as interpreted in Ford v. Wainwright

II. Whether this Courts decision in Hall v. Florida, which invalidated Floridas
scheme for determining claims of intellectual disability based on a strict IQ cutoff
of 70, applies retroactively to mentally disabled prisoners on death row whose
convictions are final

3



List of Parties to the Proceedings Below

Candance M. Sabella, Esq., and Carol Dittmar, Esq., Office of the Attorney
General of Florida, Concourse Center Four
3507 East Frontage Road, Suite 200, Tampa, Florida 33607-7013

Mr. J ohn Ruthell Henry, Petitioner, DC No. 053105, Union CI
7819 N.W. 228
th
Street, Raiford, FL 32026

Office of the State Attorney, Sixth J udicial Circuit of Florida, 7530 Little Road,
New Port Richey, Florida 34654

Ms. Rana Wallace, Deputy General Counsel, Florida Department of Corrections,
501 South Calhoun Street, Tallahassee, Florida 32399-2500

Mr. Thomas Winokur, Executive Office of the Governor
The Capitol, Plaza Level One, 400 S. Monroe St., Tallahassee, FL 32399-0001

Hon. Pat Siracusa, Circuit J udge

Baya Harrison, III, Esq., P.O. Box 102, Tallahassee, FL 32345, Attorney for
Petitioner

4


Table of Contents

Section Pages

Table of Cited Authorities 5

Citations of Opinions in the Case 5

Basis for J urisdiction in the Court 6

Constitutional and Statutory Provisions Involved in the Case 7

Statement of the Case 14

Reasons for Granting the Writ of Certiorari 17

Question I 17

Question II 22

Request for Stay of Execution 24

Conclusion 25

Certificate of Service 26

Appendix

Opinion of Supreme Court of Florida rendered J une 12, 2014




5

Table of Cited Authorities

Case Pages

Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002) 17, 22-23

Ford v. Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986) 17, 19-21

Hall v. Florida, 134 S. Ct. 1986 (2014) 15, 18, 20-21, 23

Henry v. State, 574 So. 2d 73 (Fla. 1991) 14

Henry v. State, 649 So. 2d 1366 (Fla. 1994) 14

Henry v. State, 862 So. 2d 679 (Fla. 2003) 14

Henry v. Secy, Dept of Corr., 490 F. 3d 835 (11
th
Cir. 2007) 14

Henry v. State, 2014 WL 2609114 (Fla. J une 12, 2014,
Case No. SC14-1053) 16

Constitutional Provisions, Statutes, Rules of Court Pages

U.S.C.A. Amend. VIII 7

28 U.S.C. 1257 (2013) 6

28 U.S.C. 2101(f) (2013) 24

921.137, Fla. Stat. (2013) 7, 15, 18, 21

922.07, Fla. Stat. (2013) 9, 14, 18-20

Fla. R. Crim. P. 3.203 10, 15, 17

Citations of Opinions in the Case

Henry v. State, 2014 WL 2609114
(Fla. J une 12, 2014, Case No. SC14-1053) 16

6


Basis for Jurisdiction in the Court

This petition seeks review of a judgment of the Supreme Court of Florida
rendered on J une 12, 2014. Under 28 U.S.C. 1257(a), this Court may review by
writ of certiorari the final judgments or decrees rendered by the highest court of a
State where the validity of a statute of any State is drawn into question on the
ground of its being repugnant to the Constitution, treaties, or laws of the United
States, or where any title, right, privilege, or immunity is specially set up or
claimed under the Constitution or the treaties or statutes of, of any commission
held or authority exercised under, the United States.

7

Constitutional and Statutory Provisions Involved in the Case

U.S.C.A. Amend. VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.
921.137, Fla. Stat. (2013):
(1) As used in this section, the term intellectually
disabled or intellectual disability means significantly
subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and
manifested during the period from conception to age 18.
The term significantly subaverage general intellectual
functioning, for the purpose of this section, means
performance that is two or more standard deviations from
the mean score on a standardized intelligence test
specified in the rules of the Agency for Persons with
Disabilities. The term adaptive behavior, for the
purpose of this definition, means the effectiveness or
degree with which an individual meets the standards of
personal independence and social responsibility expected
of his or her age, cultural group, and community. The
Agency for Persons with Disabilities shall adopt rules to
specify the standardized intelligence test as provided in
this subsection.

(2) A sentence of death may not be imposed upon a
defendant convicted of the capital felony if it is
determined in accordance with this section that the
defendant is intellectually disabled.

(3) A defendant charged with a capital felony who
intends to raise intellectual disability as a bar to the death
sentence must give notice of such intention in accordance
with the Rules of Court governing notices of intent to
offer expert testimony regarding mental health mitigation
during the penalty phase of the capital trial.
8


(4) After a defendant who has given notice of his or her
intention to raise intellectual disability as a bar to the
death sentence is convicted of a capital felony and an
advisory jury has returned a recommended sentence of
death, the defendant may file a motion to determine
whether the defendant is intellectually disabled. Upon
receipt of the motion, the court shall appoint two experts
in the field of intellectual disabilities who shall evaluate
the defendant and report their findings to the court and all
interested parties prior to the final sentencing hearing.
Notwithstanding s. 921.141 or s. 921.142, the final
sentencing hearing shall be held without a jury. At the
final sentencing hearing, the court shall consider the
findings of the court-appointed experts and consider the
findings of any other expert which is offered by the state
or the defense on the issue of whether the defendant has
an intellectual disability. If the court finds, by clear and
convincing evidence, that the defendant has an
intellectual disability as defined in subsection (1), the
court may not impose a sentence of death and shall enter
a written order that sets forth with specificity the findings
in support of the determination.

(5) If a defendant waives his or her right to a
recommended sentence by an advisory jury following a
plea of guilt or nolo contendere to a capital felony and
adjudication of guilt by the court, or following a jury
finding of guilt of the capital felony, upon acceptance of
the waiver by the court, a defendant who has given notice
as required in subsection (3) may file a motion for a
determination of intellectual disability. Upon granting the
motion, the court shall proceed as provided in subsection
(4).

(6) If, following a recommendation by an advisory jury
that the defendant be sentenced to life imprisonment, the
state intends to request the court to order that the
defendant be sentenced to death, the state must inform
the defendant of such request if the defendant has
9

notified the court of his or her intent to raise intellectual
disability as a bar to the death sentence. After receipt of
the notice from the state, the defendant may file a motion
requesting a determination by the court of whether the
defendant is intellectually disabled. Upon granting the
motion, the court shall proceed as provided in subsection
(4).

(7) Pursuant to s. 924.07, the state may appeal a
determination of intellectual disability made under
subsection (4).

(8) This section does not apply to a defendant who was
sentenced to death before J une 12, 2001.

(9) For purposes of the application of the criminal laws
and procedural rules of this state to any matters relating
to the imposition and execution of the death penalty, the
terms intellectual disability or intellectually disabled
are interchangeable with and have the same meaning as
the terms mental retardation or retardation and
mentally retarded as those terms were defined before
J uly 1, 2013.

922.07, Fla. Stat. (2013):

(1) When the Governor is informed that a person under
sentence of death may be insane, the Governor shall stay
execution of the sentence and appoint a commission of
three psychiatrists to examine the convicted person. The
Governor shall notify the psychiatrists in writing that
they are to examine the convicted person to determine
whether he or she understands the nature and effect of the
death penalty and why it is to be imposed upon him or
her. The examination of the convicted person shall take
place with all three psychiatrists present at the same time.
Counsel for the convicted person and the state attorney
may be present at the examination. If the convicted
person does not have counsel, the court that imposed the
sentence shall appoint counsel to represent him or her.
10


(2) After receiving the report of the commission, if the
Governor decides that the convicted person has the
mental capacity to understand the nature of the death
penalty and the reasons why it was imposed upon him or
her, the Governor shall immediately lift the stay and
notify the Attorney General of such action. Within 10
days after such notification, the Governor must set the
new date for execution of the death sentence. When the
new date for execution of the death sentence is set by the
Governor under this subsection, the Attorney General
shall notify the inmates counsel of record of the date and
time of execution.

(3) If the Governor decides that the convicted person
does not have the mental capacity to understand the
nature of the death penalty and why it was imposed on
him or her, the Governor shall have the convicted person
committed to a Department of Corrections mental health
treatment facility.

(4) When a person under sentence of death has been
committed to a Department of Corrections mental health
treatment facility, he or she shall be kept there until the
facility administrator determines that he or she has been
restored to sanity. The facility administrator shall notify
the Governor of his or her determination, and the
Governor shall appoint another commission to proceed as
provided in subsection (1).

(5) The Governor shall allow reasonable fees to
psychiatrists appointed under the provisions of this
section which shall be paid by the state.

Fla. R. Crim. P. 3.203:
(a) Scope. This rule applies in all first-degree murder
cases in which the state attorney has not waived the death
penalty on the record and the defendants intellectual
disability becomes an issue.
11


(b) Definition of Intellectual Disability. As used in this
rule, the term intellectual disability means significantly
subaverage general intellectual functioning existing
concurrently with deficits in adaptive behavior and
manifested during the period from conception to age 18.
The term significantly subaverage general intellectual
functioning, for the purpose of this rule, means
performance that is two or more standard deviations from
the mean score on a standardized intelligence test
authorized by the Department of Children and Family
Services in rule 65G-4.011 of the Florida Administrative
Code. The term adaptive behavior, for the purpose of
this rule, means the effectiveness or degree with which
an individual meets the standards of personal
independence and social responsibility expected of his or
her age, cultural group, and community.

(c) Motion for Determination of Intellectual Disability as
a Bar to Execution: Contents; Procedures.

(1) A defendant who intends to raise intellectual
disability as a bar to execution shall file a written motion
to establish intellectual disability as a bar to execution
with the court.

(2) The motion shall state that the defendant is
intellectually disabled and, if the defendant has been
tested, evaluated, or examined by one or more experts,
the names and addresses of the experts. Copies of reports
containing the opinions of any experts named in the
motion shall be attached to the motion. The court shall
appoint an expert chosen by the state attorney if the state
attorney so requests. The expert shall promptly test,
evaluate, or examine the defendant and shall submit a
written report of any findings to the parties and the court.

(3) If the defendant has not been tested, evaluated, or
examined by one or more experts, the motion shall state
that fact and the court shall appoint two experts who shall
12

promptly test, evaluate, or examine the defendant and
shall submit a written report of any findings to the parties
and the court.

(4) Attorneys for the state and defendant may be present
at the examinations conducted by court-appointed
experts.

(5) If the defendant refuses to be examined or fully
cooperate with the court appointed experts or the states
expert, the court may, in the courts discretion:

(A) order the defense to allow the court-appointed
experts to review all mental health reports, tests, and
evaluations by the defendants expert;

(B) prohibit the defense experts from testifying
concerning any tests, evaluations, or examinations of the
defendant regarding the defendants intellectual
disability; or

(C) order such relief as the court determines to be
appropriate.

(d) Time for filing Motion for Determination of
Intellectual Disability as a Bar to Execution. The motion
for a determination of intellectual disability as a bar to
execution shall be filed not later than 90 days prior to
trial, or at such time as is ordered by the court.

(e) Hearing on Motion to Determine Intellectual
Disability. The circuit court shall conduct an evidentiary
hearing on the motion for a determination of intellectual
disability. At the hearing, the court shall consider the
findings of the experts and all other evidence on the issue
of whether the defendant is intellectually disabled. The
court shall enter a written order prohibiting the
imposition of the death penalty and setting forth the
courts specific findings in support of the courts
determination if the court finds that the defendant is
13

intellectually disabled as defined in subdivision (b) of
this rule. The court shall set the proceedings for 30 days
from the date of rendition of the order prohibiting the
death penalty or, if a motion for rehearing is filed, for 30
days following the rendition of the order denying
rehearing, to allow the state the opportunity to appeal the
order. If the court determines that the defendant has not
established intellectual disability, the court shall enter a
written order setting forth the courts specific findings in
support of the courts determination.

(f) Waiver. A claim authorized under this rule is waived
if not filed in accord with the time requirements for filing
set out in this rule, unless good cause is shown for the
failure to comply with time requirements.

(g) Finding of Intellectual Disability; Order to Precedent.
If, after the evidence presented, the court is of the
opinion that the defendant is intellectually disabled, the
court shall order the case proceeded without the death
penalty as an issue.

(h) Appeal. An appeal may be taken by the state if the
court enters an order finding that the defendant is
intellectually disabled, which will stay further
proceedings in the trial court until a decision on appeal is
rendered. Appeals are to proceed according to Florida
Rule of Appellant Procedure 9.140(c).

(i) Motion to Establish Intellectual Disability as a Bar to
Execution; Stay of Execution. The filing of a motion to
establish intellectual disability as a bar to execution shall
not stay further proceedings without a separate order
staying execution.



14

Statement of the Case

Petitioner was convicted in the Circuit Court of the Sixth J udicial Circuit,
Pasco County, Florida, of first-degree murder for the killing of his wife, and
sentenced to death. The conviction was reversed on appeal by the Supreme Court
of Florida. Henry v. State, 574 So. 2d 73 (Fla. 1991). Petitioner was retried and
again convicted of first-degree murder and sentenced to death. This time, the
conviction and sentence were affirmed on direct appeal by the Supreme Court of
Florida. Henry v. State, 649 So. 2d 1366 (Fla. 1994).
Petitioner filed a motion for postconviction relief in the state trial court in
2001, which was denied after an evidentiary hearing and affirmed on appeal by the
Supreme Court of Florida. Henry v. State, 862 So. 2d 679 (Fla. 2003). Petitioner
filed a petition for writ of habeas corpus in the United States District Court for the
Middle District of Florida, which was denied and affirmed on appeal by the
Eleventh Circuit Court of Appeals. Henry v. Secy, Dept of Corr., 490 F. 3d 835
(11
th
Cir. 2007).
On May 5, 2014, the Governor of Florida signed a death warrant and
scheduled the execution of Petitioner for J une 18, 2014. Petitioner filed a request
with the Governor of Florida for a determination of Petitioners sanity to be
executed, as provided in 922.07, Fla. Stat. (2013). In response to Petitioners
request, the Governor appointed a panel of three doctors to evaluate Petitioner for
15

the purpose of determining whether he was sane to be executed. Under the
procedure set by statute, the Governors panel of doctors evaluated Petitioner and
submitted a written letter to the Governor with their findings. In the letter, the
panel concluded that Petitioner understood the nature of the death penalty and the
reasons it was being imposed upon him, and was therefore sane to be executed.
The panel also stated that Petitioner was not intellectually disabled.
On May 27, 2014, this Court decided Hall v. Florida, 134 S. Ct. 1986
(2014). The Court held that Fla. Stat. 921.137 is unconstitutional to the extent it
bars a claim of intellectual disability as a matter of law to any prisoner with an IQ
score greater than 70.
On May 30, 2014, Petitioner filed a motion in the state trial court per the
provisions of Fla. R. Crim. P. 3.203, requesting a determination of intellectual
disability under the standard announced in Hall. The state trial court dismissed the
motion as untimely. Petitioner appealed to the Supreme Court of Florida.
On J une 12, 2014, the Supreme Court of Florida affirmed the dismissal of
Petitioners motion on the merits. The Court held that Petitioner was not entitled to
a hearing because there was insufficient evidence of poor adaptive functioning and
early onset, because no doctor has ever diagnosed Petitioner as intellectually
disabled, and because the three doctors appointed by the Governor to determine
16

Petitioners sanity found that he was not intellectually disabled. Henry v. State,
2014 WL 2609114 (Fla. J une 12, 2014, Case No. SC14-1053).
On J une 14, 2014, Petitioner filed an Emergency Motion for Leave to File a
Second or Successive Petition for Writ of Habeas Corpus and Request for Stay of
Execution in the Eleventh Circuit Court of Appeals, asserting that this Courts
decision in Hall announced a new rule of law that entitled Petitioner to one
opportunity to present a claim of intellectual disability, a claim that Florida
summarily rejected.
On J une 17, 2014, a divided panel of the Eleventh Circuit Court of Appeals
denied the application on retroactivity grounds, stating that this Court has not
expressly held the new rule of law announced in Hall to apply retroactively to final
cases on collateral review. By statute, the decision of the Eleventh Circuit Court of
Appeals on an application for leave to file a second or successive habeas petition is
a non-appealable order.
This appeal from the decision of the Supreme Court of Florida follows.

17

Reasons for Granting the Writ of Certiorari

Question I: Whether the Florida Supreme Courts reliance on the findings of
a panel of doctors selected by the Governor in a non-judicial proceeding to
determine Petitioners claim of intellectual disability violates the Eighth
Amendment to the United States Constitution as interpreted in Ford v.
Wainwright.

Rule 10(c) of the Rules of the Supreme Court provides for certiorari review
if a state court has decided an important question of federal law in a way that
conflicts with relevant decisions of this Court. The decision of the Supreme Court
of Florida in this case conflicts with this Courts prior decision in Ford v.
Wainwright, 477 U.S. 399, 106 S. Ct. 2595 (1986). The state court determined
Petitioners Eighth Amendment claim of intellectual disability as a bar to execution
based on the findings a Governors panel of doctors without affording Petitioner a
hearing or opportunity to present evidence or challenge the doctors findings, a
procedure that this Court condemned in Ford as arbitrary and insufficient to
protect a condemned prisoners Eighth Amendment rights.
In Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002), this Court held
that the execution of a mentally retarded person violates the Eighth Amendment
ban on cruel and unusual punishment. That decision left to the states the task of
developing procedures for determining whether a defendant was retarded. Id at
317. In response to that decision, Florida promulgated Fla. R. Crim. P. 3.203,
which provides for an expert medical evaluation and evidentiary hearing to
18

determine the question of mental retardation. The definition of mental retardation
(now intellectual disability) is set by statute in 921.137, Fla. Stat. (2013).
Last month, this Court held in Hall v. Florida, 134 S. Ct. 1986, that Fla.
Stat. 921.137 is unconstitutional to the extent it bars as a matter of law any claim
of intellectual disability by a condemned prisoner with an IQ score higher than 70.
This Court reasoned that a strict IQ score cutoff departs from established medical
practice because it fails to consider other evidence of disability, including evidence
of poor adaptive functioning, and fails to consider the inherent margin of error in
IQ tests. Id at 1995-6, 2001.
Following the Hall decision, Petitioner filed a motion requesting a
determination of intellectual disability in state court. Petitioner alleged that he has
not previously been evaluated for intellectual disability because his IQ score of 78
barred him from consideration under Florida law as it existed prior to Hall. The
state trial court dismissed the motion without a hearing and the Supreme Court of
Florida affirmed. Henry v. State, 2014 WL 2609114 (Fla. J une 12, 2014, Case No.
SC14-1053).
The state supreme courts opinion cited the findings and conclusions of the
Governors panel of doctors, which was appointed by the Governor under
922.07, Fla. Stat., for the purpose of determining Petitioners sanity. Id. The
doctors letter, purportedly setting out the facts of their clinical evaluation of
19

Petitioner, found both that Petitioner was sane and that he was not intellectually
disabled. The court relied on these findings, combined with the fact that none of
the doctors who previously examined Petitioner in the court proceedings for sanity
and competency to stand trial diagnosed him as intellectually disabled. Id.
In 1986, this Court held in Ford v. Wainwright that Florida could not rely on
a Governors panel of doctors to decide a condemned prisoners sanity to be
executed without affording a judicial proceeding to subject the States evidence to
adversarial testing to ensure reliability of the result. Ford, 477 U.S. at 412. To
execute a person without proper procedures to determine their mental faculties
violates the Cruel and Unusual Punishment Clause of the Eighth Amendment, and
this Court held that Floridas procedures were insufficient to afford a full and fair
hearing on the critical issue. Id at 417.
An examination under 922.07 is conducted exclusively within the
executive branch ex parte and includes no judicial review. Id at 412. This Court
found it self-evident that such a cursory form of procedural review fails to achieve
even the minimal degree of reliability required for the protection of any
constitutional interest. Id at 413. This Court reasoned that the Governors panel
review provided by 922.07 fails to include the prisoner in the truth-seeking
process and denies any meaningful opportunity to be heard and present relevant
evidence or conflicting testimony to counter that of the Governors hand-picked
20

selectees. Id. In addition, this summary procedure denies the prisoner any
opportunity to challenge or impeach the state-appointed psychiatrists opinions. Id
at 415. As the Court noted, cross-examination is the greatest legal engine ever
invented for the discovery of truth. Id. The Court also doubted the reliability of the
results to the extent they were based on a single group interview, particularly when
there was no opportunity for challenge. Id at 415 n.3.
On J une 12, 2014, the Florida Supreme Court relied on the exact same
statutory procedure in F.S. 922.07, consisting of a panel of three doctors hand-
picked by the Governor to determine Mr. Henrys sanity, to refute Mr. Henrys
claim of intellectual disability under the new standard for such claims announced
last month in Hall v. Florida. The Florida Supreme Court accepted without
question the factual findings and ultimate conclusion of the Governors panel that
Mr. Henry is not intellectually disabled, without affording any judicial process or
adversarial testing.
The state court also relied on the fact that previous doctors who evaluated
Petitioner for sanity and competency to be tried did not diagnose him as mentally
retarded. The court did not address the fact that those evaluations would have been
performed under the unconstitutional IQ score cutoff that was then the law in
Florida, so that any diagnosis of mental retardation would have been foreclosed as
a matter of law based on Petitioners 78 IQ. The Florida Supreme Court then
21

satisfied itself that this was not a problem because the Governors panel decided
the question.
The Florida Supreme Courts ruling in this case represented the State of
Floridas first opportunity to decide, after Hall, what new procedures would be
implemented to correct the unconstitutional deficiencies in 921.137 as it was
previously applied and establish new rules for deciding claims of intellectual
disability. Floridas response was to fall back on a summary method that this Court
rejected as unconstitutional almost thirty years ago.
The decision of the Florida Supreme Court in this case is contrary to Eighth
Amendment principles as stated in Ford v. Wainwright. Petitioner therefore
requests that this Court grant certiorari review.


22


Question II. Whether this Courts decision in Hall v. Florida, which
invalidated Floridas scheme for determining claims of intellectual disability
based on a strict IQ cutoff of 70, applies retroactively to mentally disabled
prisoners on death row whose convictions are final

A panel majority of the Eleventh Circuit Court of Appeals ruled on J une 17,
2014 that Petitioner could not bring a second or successive habeas corpus petition
and raise a claim of intellectual disability under Hall v. Florida, supra, because this
Courts opinion in that case did not expressly hold that the new rule announced in
that case applied retroactively to final cases on collateral review. That ruling is not
appealable.
However, the Supreme Court of Florida did apply Hall to Petitioners
request for a determination of intellectual disability, or at least acknowledged that
Hall represents the current substantive law on the issue. The applicability of Hall is
therefore central to whether the State of Florida violated Petitioners Eighth
Amendment rights in dismissing his disability claim. The issue of retroactivity of
this Courts decision in Hall presents an important question of federal law that
should be settled by this Court.
This Court noted in Atkins v. Virginia that the execution of a mentally
retarded person serves no legitimate retributive or deterrent function, and therefore
violates the Eighth Amendment prohibition on the infliction of cruel and unusual
punishment. Atkins, 536 U.S. at 319-20. The Court also noted that the reduced
23

capacity of mentally retarded offenders increases the risk of wrongful execution
due to the offenders inability to assist their attorneys or make good witnesses, and
the likelihood of giving false confessions. Id at 320-21. Therefore, evolving
standards of decency forbid taking the life of a mentally retarded offender. Id at
321.
The relevant inquiry in a claim of mental retardation or intellectual disability
is the present mental state of the prisoner when compared to the current state of
medical practice. This Court quoted extensively from the DSM-5 diagnostic
manual for mental illnesses in its opinion in Hall. See Hall, 134 S. Ct. at 1990-91,
2001. Those standards represent the current opinion of the medical community on
the definition of intellectual disability that should be applied. This Court has also
acknowledged that its Eighth Amendment jurisprudence is based on evolving
standards of decency that are guided in part by that medical community.
For this Courts decision in Hall to have its intended effect of preventing the
execution of mentally disabled individuals, that ruling should be applied
retroactively to all persons presently under sentence of death who were previously
deemed eligible for execution under the Florida statutory scheme that was deemed
unconstitutional in Hall. Petitioner therefore requests that the Court grant certiorari
review also on the question of whether Hall should be applied retroactively.

24

Request for Stay of Execution

Pursuant to the Governors Death Warrant signed May 5, 2014, Petitioner is
scheduled to be executed on June 18, 2014 at 6:00 P.M. Should the Court
determine that certiorari jurisdiction should be exercised in this cause, Petitioner
therefore moves under 28 U.S.C. 2101(f) and Rule 23 of the Rules of the
Supreme Court for a stay of execution.
Petitioner asserted his Eighth Amendment right to be immune from
execution due to intellectual disability in a timely manner, filing his motion in state
court only three days after this Courts decision in Hall v. Florida. That motion
remained pending on appeal until J une 12, 2014, when the lower courts
disposition was affirmed by the Supreme Court of Florida. The relief sought could
not have been sought sooner or in any other court.
Pursuant to Rule 22 of the Rules of the Supreme Court, Petitioner requests
that Mr. J ustice Clarence Thomas, the designated justice for the Eleventh Circuit,
or any appropriate justice, grant a stay of execution in this case.

25

Conclusion

WHEREFORE the Petitioner respectfully requests that the Court exercise its
discretionary certiorari jurisdiction to hear this case and grant a stay of execution.
/s/ Baya Harrison, Esq.
Baya Harrison, III, Esq.
Florida Bar No. 99568
P.O. Box 102
Tallahassee, FL 32345
Tel: (850) 997-8469
Fax: (850) 997-8460
email: bayalaw@aol.com

26


Certificate of Service

I HEREBY CERTIFY that a true copy of the foregoing has been furnished
to counsel referenced and to Mr. Henry, at the addresses indicated, by U.S. mail
delivery or email delivery, this 18
th
day of J une, 2014.
Candance M. Sabella, Esq., and Carol Dittmar, Esq., Office of the Attorney
General of Florida, Concourse Center Four
3507 East Frontage Road, Suite 200, Tampa, Florida 33607-7013

Mr. J ohn Ruthell Henry, Defendant, DC No. 053105, Union CI
7819 N.W. 228
th
Street, Raiford, FL 32026

Office of the State Attorney, Sixth J udicial Circuit of Florida, 7530 Little Road,
New Port Richey, Florida 34654

Ms. Rana Wallace, Deputy General Counsel, Florida Department of Corrections,
501 South Calhoun Street, Tallahassee, Florida 32399-2500

Mr. Thomas Winokur, Executive Office of the Governor
The Capitol, Plaza Level One, 400 S. Monroe St., Tallahassee, FL 32399-0001


/s/ Baya Harrison, III













27

APPENDIX