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:
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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
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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