TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES .................. ii

REPLY TO TIMELINESS ARGUMENT ............. 1

REPLY TO RESPONSE TO ARGUMENT I ............. 2

1. Preservation. ................. 2

2. Apprendi is New Law. ............. 5

3. Relief is Warranted. ............. 9

TABLE OF AUTHORITIES

Almendarez-Torres v. United States,

523 U.S. 224, 257 n.2 (1998) .............10

Cannady v. State,

620 So. 2d 165, 170 (Fla. 1993) ........... 5

Cochran v. State,

547 So. 2d 928 (Fla. 1988) ..............14

Darity v. United States,

124 F. Supp.2d 355, 360 (W.D.N.C. 2000) ....... 8

Delap v. Dugger,

513 So. 2d 659, 662 (Fla. 1987) ........... 5

Enmund v. Florida,

458 U.S. 782 (1982) ................. 9

Fiore v. White,

121 S.Ct. 712, 714 (2001) ..............14

Ford v. Georgia,

498 U.S. 411 (1991) ................. 2

Heggs v. State,

759 So. 2d 620 (Fla. 2000) .............. 7

Hoffman v. Arave,

236 F. 3d 523, 546-48 (9th Cir. 2001) ........ 8

In Re Joshua,

224 F. 3d 1281 (11th Cir. 2000) ........... 6

Jones v. State,

26 Fla. L. Weekly D563 (Fla. 2d DCA 2001) ...... 6

Keen v. State,

775 So. 2d 263 (Fla. 2000) ..............12

Lambrix v. Singletary,

McCray v. State,

699 So. 2d 1366 (Fla. 1997) ............. 2

Mills v. Singletary,

161 F.3d 1273, 1282 (11th Cir. 1998) .........14

Mills v. Singletary,

606 So. 2d 622 (Fla. 1992) .............. 2

Mills v. State,

476 So. 2d 172, 177 (Fla. 1985) ........... 5

Parker v. Dugger,

876 F. 2d 1470, 1474 (11th Cir. 1989),

rev'd on other grounds, 498 U.S. 308 (1991) ...14

Patton v. State,

25 Fla. L. Weekly S749 (Fla. 2000) ..........15

People v. Beachem,

740 N.E.2d 389, 397 (Ill. Ct. App. 2000) ....... 8

Phillips v. State,

623 So. 2d 621 (Fla. 4th DCA 1992) .......... 6

Shere v. State,

742 So. 2d 215, 216-18 n. 6 (Fla. 1999) ....... 3

Sireci v. State,

773 So. 2d 34 (Fla. 2000) .............. 3

Sochor v. Florida,

504 U.S. 527 (1992) ................. 1

Spaziano v. Florida,

468 U.S. 447 (1984) ............... 9, 15

Stephens v. State,

2001 WL 252160 (Fla. 2001) .............. 9

Stringer v. Black,

503 U.S. 222 (1992) ................. 1

Swafford v. State,

Teague v. Lane,

489 U.S. 288 (1989) ................. 6

Tedder v. State,

322 So. 2d 908 (Fla. 1975) ..............12

Thompson v. Dugger,

515 So. 2d 173, 175 (Fla. 1987) ........... 7

Tison v. Arizona,

481 U.S. 137 (1987) ................. 9

United States v. Murphy,

109 F.Supp.2d 1059, 1063-64 (D. Minn. 2000) ..... 8

Walton v. Arizona,

497 U.S. 639 (1990) .................10

Weeks v. State,

761 A.D.2d 804 (Del. 2000) ..............11

White v. State,

664 So. 2d 242, 247 (Fla. 1995) ...........15

Witt v. State,

REPLY TO TIMELINESS ARGUMENT

Respondent alleges that the petition is "unconscionable,"

"dilatory," "abusive," and "vexatious" because it was filed more than

one year after certiorari was denied from Mr. Mills' federal habeas

proceedings (Response at 8). Respondent cites to nothing that stands

for the proposition that a defendant is barred from raising issues of

new law if such are raised outside 1-year rule from certiorari denial

from federal habeas. To the contrary, the time for raising issues

alleging new law runs from when the new law is announced, not from some

arbitrary date that Respondent picks out of the air in order to latch

onto an illusory procedural bar. Witt v. State, 387 So. 2d 922 (Fla.

1980); Fla. R. Crim. P. 3.850 (b). The cases on which Mr. Mills is

relying were all decided well within a year of the filing of his

petition, and thus the petition is timely.

Respondent next asserts that Mr. Mills' arguments are "similar"

to those raised in Mr. Mills' second habeas corpus petition.

Respondent does not explain the purported "similarity." In his second

habeas petition, Mr. Mills argued that the then-recent decisions in

Sochor v. Florida, 504 U.S. 527 (1992), and Stringer v. Black, 503 U.S.

222 (1992), required re-visitation of two issues: (1) that Sochor and

Stringer established that the Court's "harmless error" analysis on

direct appeal after striking three aggravating factors was

constitutionally applied to Mr. Mills, as he had no notice of such

Court's rejection on direct appeal of the argument that the "during the

course of a felony" aggravating factor constituted an "automatic

aggravator" was fundamentally flawed. This Court rejected Mr. Mills'

arguments. Mills v. Singletary, 606 So. 2d 622 (Fla. 1992). The

claims at issue in the 1992 proceedings are not the claims that are

presented in the instant petition, which are premised on new case law.

Respondent next argues that Fla. R. App. P. 9.140 (j)(3)(B), and

McCray v. State, 699 So. 2d 1366 (Fla. 1997), are "clearly applicable"

(Response at 9). Other than faithfully reproducing the text of the

rule and the holding in McCray, Respondent never divulges how either of

these principles apply herein, much less "clearly" so. Fla. R. App. P.

9.140 and McCray only address out-of-time petitions alleging

ineffective assistance of appellate counsel. Yet in classic double-speak,

Respondent concedes that Mr. Mills' petition does not allege

ineffective assistance of appellate counsel (Response at 10). Even if

can be no comparison between the "inordinate delay" addressed in McCray

(habeas petition filed 15 years after finality of conviction), to Mr.

Mills' case, where he filed his claims, premised on cases decided in

complaints that Mr. Mills' petition is "abusive" and "vexatious"

because it raised claims which have been "repeatedly litigated" by

Respondent's timeliness argument is meritless.

1. Preservation. Respondent first argues that the Apprendi claim is

not "available" to Mr. Mills because "it is not preserved" (Response at

in Mr. Mills' direct appeal brief, but in a "footnote" and thus

"insufficient to preserve, or even present, the constitutional claims"

(Response at 11) (citing Shere v. State, 742 So. 2d 215, 216-18 n. 6

(Fla. 1999)). Respondent is wrong on the manner in which the issue was

presented on direct appeal, and, as explained below, fails to cite

contrary authority on the preservation issue. See Sireci v. State, 773

So. 2d 34 (Fla. 2000).

On direct appeal, Mr. Mills first alleged the due process and the

right to trial by jury issue in footnote 5 of the Initial Brief;

following the discussion, appellate counsel explicitly noted that the

Court had previously rejected the claim and thus counsel "will not

further develop this point" (Initial Brief of Appellant, Mills v.

State, No. 59,140 at 45 n.5 (App. 1). He also raised the Sixth and

Fourteenth Amendment issue on pp. 46-47 of the brief in light of the

argued that the death sentence violated the Sixth, Eighth, and

Fourteenth Amendments on a number of grounds and reincorporated the

direct appeal arguments. For example, Mr. Mills reasserted "the

derogation of a defendant's right to a jury recommendation of

punishment," the impropriety of "the trial judge [] consider[ing] and

[find]ing aggravating circumstances not submitted or argued to the

jury by the prosecution," and that it was unconstitutional "to deny

the jury, even though its recommendation is only advisory, of the

ability to comprehensively consider all the relevant aggravating and

mitigating factors" (Petition for Extraordinary Relief, Etc., Mills

v. Dugger, No. 75,037, at 8-9) (App. 2). In response, the State

argued that the issues were "thoroughly addressed in Mills' direct

appeal. . . . A review of the brief submitted by appellate counsel

demonstrates that this point was thoroughly argued, covering twenty

pages of the brief" (Response to Petition, Mills v. Dugger, No.

brief raised numerous claims alleging an improper summary denial but

"for most of these claims, Shere did not present any argument or

the jury (Id.). The manner in which appellate counsel preserved this

claims on appeal was entirely appropriate in light of this Court's

Defense counsel indicated during oral arguments that many of

these issues needed to be raised for purposes of preserving

the claim in the event that there is a change in the law

which would afford a capital defendant relief. We

understand and certainly appreciate defense counsel's valid

concern. Notwithstanding, there is no need to unnecessarily

burden any court with issues which simply detract focus from

arguably meritorious claims. Accordingly, we take this

opportunity to suggest that issues which are being raised

solely for purposes of preserving an error should be so

designated. We will consider the issues preserved for

review in the event of a change in the law if counsel so

indicates by grouping these claims under an appropriately

titled heading and providing a description of the substance.

claims." Shere, 742 So. 2d at 217 n.6. Thus, the Court held that

these claims were "insufficiently presented for review." Id. Even a

cursory review of Mr. Mills' Initial and Reply Brief, as well as the

Motion for Rehearing, establishes that the issues were more than

needed to be done to preserve a previously-rejected claim, as evidenced

by the State's response on direct appeal (Answer Brief of Appellee at

52) (App. 4), as well as this Court's opinion on direct appeal. Mills

v. State, 476 So. 2d 172, 177 (Fla. 1985) (noting appellate counsel

"dutifully challenges the constitutionality of Florida's capital felony

sentencing statute, but the arguments raised have been previously

resolved against Mills").

If appellate counsel's briefing of the issue was not clear

enough, he again raised the issue on pp. 5-6 in a motion for rehearing

(App. 5). In response, the State argued that all the points raised

were "nothing more than reargument" and "merely reiterate[s] the

identical arguments already presented to and rejected by this tribunal"

(App. 6).

Thus, at no time in the history of this case, until now, has the

State of Florida asserted that Mr. Mills' right to jury trial and due

process argument was not or was insufficiently preserved. Respondent's

preservation argument is defaulted and meritless. Cannady v. State,

620 So. 2d 165, 170 (Fla. 1993).

Respondent that Mr. Mills did not or inadequately presented on appeal

the issue now being presented, Respondent's arguments remain meritless

in light of its argument that "it has never been suggested that a death

sentence can only be imposed by a jury" (Response at 11). Of course,

this is the basis of Mr. Mills' petition; he is asserting that Apprendi

is new law which does not require prior preservation. See Delap v.

Dugger, 513 So. 2d 659, 662 (Fla. 1987) (Hitchcock applied

retroactively despite lack of preservation at trial).

Moreover, Mr. Mills would point out that Respondent has conceded

in another case before this Court that Apprendi in fact is new law

which could not have been previously anticipated:

it is obvious that although Mann asserts that this claim

could have been presented in his appeal[,] . . . Mann never

explains how his appellate counsel could have foreseen the

Apprendi ruling. . . . As this Court has recognized,

failing to anticipate changes in the law . . ."

(Response to Petition for Writ of Habeas Corpus, Mann v. Moore, No.

SC00-2602, at 21-22) (emphasis added) (App. 7). See also Lambrix v.

Singletary, 641 So. 2d 847, 848 (Fla. 1994) (appellate counsel cannot

be faulted for failing to anticipate changes in law).

Respondent argues that the Eleventh Circuit in In Re Joshua, 224

F. 3d 1281 (11th Cir. 2000), and the Second DCA in Jones v. State, 26

Fla. L. Weekly D563 (Fla. 2d DCA 2001), have not applied Apprendi to

announced that federal habeas corpus petitioners would not be

entitled to the benefit of a "new rule" unless certain narrow

exceptions were met. The Teague doctrine is not applicable to this

Court's determination of retroactivity; Witt is. See, e.g. Phillips

v. State, 623 So. 2d 621 (Fla. 4th DCA 1992) (noting differences

The Joshua court addressed whether a federal habeas petitioner could

raise an Apprendi issue pursuant to the successor provisions of 28

U.S.C. §§ 2255 and 2244 (b)(2)(A). Under those provisions, federal

courts are prohibited from entertaining a second or successive habeas

petition unless, inter alia, it raises a claim involving "a new rule of

constitutional law, made retroactive to cases on collateral review, by

Circuit has analyzed the issue under the AEDPA has nothing to do with

this Court's jurisprudence under Witt, as Witt itself makes perfectly

clear. Witt, 387 So. 2d at 928 ("the concept of federalism clearly

dictates that we retain the authority to determine which `changes of

law' will be cognizable under this state's post-conviction machinery. .

. [W]e know of no constitutional requirement that the scope of Rule

3.850 be fully congruent with that of the analogous federal statute").

This Court is not required to be told by the Supreme Court that a

decision can be retroactively applied before doing so on its own. See,

e.g. Thompson v. Dugger, 515 So. 2d 173, 175 (Fla. 1987) (determining

sentencing scheme, particularly its override scheme. Mr. Mills would

note that in the Robert Patton case, Mr. Patton, in his motion for

rehearing, argued that Apprendi implicated his argument that the 6-6

tie vote by the sentencing jury required relief. The rehearing was

denied over Justice Anstead's dissent, and with Justice Pariente

indicating that supplemental briefing on the Apprendi issue should

be retroactively applied).

As for the Jones decision from the Second District, at issue

there was whether Apprendi impacted Jones's claim under Heggs v. State,

759 So. 2d 620 (Fla. 2000), and the Jones court noted that Apprendi

"specifically excepted from this ruling prior convictions." Jones, 26

Fla. L. Weekly at D563. Thus the attack in Jones was vastly different

than what Mr. Mills is raising. Moreover, the Second District

conducted no Witt analysis. To the extent that the Second District

relied on Joshua, its analysis is flawed for the reasons set forth

above and should be abrogated. The district courts of Florida are not

bound by the Eleventh Circuit's application of federal habeas corpus

In addition to the Apprendi dissenters, a number of state and

federal judges have found Apprendi to be a "watershed" change in the

law requiring it to be applicable retroactively. See, e.g. People v.

Beachem, 740 N.E.2d 389, 397 (Ill. Ct. App. 2000) ("We understand the

implications of extending Apprendi to collateral review. But we do

us we best survive when we hew to the line drawn by the rule of law");

Darity v. United States, 124 F. Supp.2d 355, 360 (W.D.N.C. 2000) ("the

undersigned concludes that Apprendi is also a substantive decision to

which Teague's retroactivity rules do not apply"); United States v.

Murphy, 109 F.Supp.2d 1059, 1063-64 (D. Minn. 2000) ("the Apprendi

decision does implicate the second exception [to Teague], which applies

to those `watershed rules of criminal procedure' which `alter our

understanding of the bedrock procedural elements essential to the

fairness of a proceeding` and `without which the likelihood of an

accurate conviction is seriously diminished'"); Hoffman v. Arave, 236

F. 3d 523, 546-48 (9th Cir. 2001) (Pregerson, J., concurring) ("the

issue at stake in this case--the right to have a jury determine facts

that increase the potential penalty from life imprisonment to death--is

the kind of fundamental rule of criminal procedure that should be

applied retroactively under the second Teague exception").

3. Relief is Warranted. Respondent argues that Apprendi is

"inapplicable" to capital sentencing schemes, including Florida's,

citing a number of cases upholding such sentencing schemes (Response at

11-12). Curiously, Respondent does not address Apprendi's impact on

override cases such as Spaziano v. Florida, 468 U.S. 447 (1984), nor

does Respondent discuss, much less explain, the peculiarities of the

1980 statute under which Mr. Mills was charged. That "[d]eath is the

Enmund v. Florida, 458 U.S. 782 (1982), and Tison v. Arizona, 481

U.S. 137 (1987). Cf. Stephens v. State, 2001 WL 252160 (Fla. 2001)

Apprendi as supportive of its argument (Response at 13 n.3) ("In

effect, the United States Supreme Court held that `death is

different,' as Justice Thomas suggested in his concurring opinion").

Of course, Justice Thomas wrote that, in his view, he need not

address Apprendi's implications on Walton v. Arizona, 497 U.S. 639

(1990), leaving that question "for another day." Apprendi, 120 S.Ct.

2380-81 (Thomas, J., concurring). If Respondent is gleaning from

Justice Thomas that Apprendi's reach to Florida's override scheme

would be unavailing because "death is different," this argument would

further establish an equal protection violation. The Sixth

Amendment's protections cannot be constitutionally lower in death

penalty cases. Justice O'Connor's dissent in Apprendi pointed out

that Justice Thomas' suggestion "is without precedent in our

constitutional jurisprudence." Apprendi, 120 S.Ct. at 2388

(Response at 14), is not an accurate statement of Florida's statute,

which unmistakably provided that "a person convicted of a capital

felony shall be punished by life imprisonment" unless and until

additional proceedings are conducted. § 775.082 (1) (1980) (emphasis

added). Thus, a death sentence under Florida's unique sentencing

scheme clearly "describe[s] an increase beyond the maximum authorized

statutory sentence," Apprendi, 120 S.Ct. at 2365 n.19, and death-eligibility

In arguing that Apprendi is "inapplicable to capital sentencing"

(Response at 6), Respondent points to the quotation, repeated in

States, 523 U.S. 224, 257 n.2 (1998) (Scalia, J., dissenting). While

the majority decision found Apprendi not inconsistent with Walton, the

quotation from Justice Scalia's dissent in Almendarez-Torres clearly

indicates that it is, at least so far as the Florida scheme is

concerned and how it was applied in Mr. Mills' case. What this

quotation says is that a judge is not permitted "to determine the

existence of a factor which makes a crime a capital offense"; instead,

a judge can determine the penalty "once a jury has found the defendant

guilty of all the elements of an offense which carries as its maximum

penalty the sentence of death." One of the constitutional flaws in Mr.

Mills' case is that the judge found aggravating factors that were in

fact never presented or argued to the jury. This violates Apprendi and

Justice Scalia's observation in Almendarez-Torres.

Whether Apprendi in fact overruled Walton and other cases remains

an open question. At a minimum, Apprendi certainly has not "squarely

foreclosed" that possibility, as Respondent suggests (Response at 14).

The opinion of the Court was written by Justice Stevens, joined by

Justices Ginsburg, Scalia, and Souter. Justice Thomas concurred with

the judgment of the Court, but wrote separately not only to endorse a

broader rule than adopted by the majority, but also to express his

opinion that he "need not in this case" decide whether Walton has been

overruled, leaving that as "a question for another day." Apprendi, 120

in light of Apprendi. Weeks received merits consideration of his

had been overruled. Id. at 2387-89 (O'Connor, J., dissenting, joined

by Rehnquist, C.J., Breyer and Kennedy, JJ.).

Respondent's reliance on Weeks v. State, 761 A.D.2d 804 (Del.

Delaware capital sentencing scheme is vastly different from Florida's.

Unlike Florida, Delaware's statute does not mandate a life sentence

unless a separate penalty proceeding is held. See 11 Del.C. § 4209

(a). Unlike Florida, Delaware prosecutors are required to provide

notice to the defense of any aggravating circumstances it intends to

pursue. See 11 Del.C. §4209 (c)(1). And unlike Florida, Delaware

jurors are required to disclose which specific aggravators they have

found to exist beyond a reasonable doubt, and make a specific finding

that the aggravators outweighed the mitigation on each count. Weeks,

761 A.2d at 805-06 & n.5; 11 Del.C. §§ 4209 (c)(3); (d)(1). Weeks

provides no meaningful insight as to how Apprendi impacts Florida's

1980 scheme permitting overrides either in general or as applied to Mr.

Mills.

REPLY TO RESPONSE TO ARGUMENT II

Respondent barely addresses this issue and chooses to ignore what

the argument is. All Respondent really says is that because this Court

then this Court "applied" Tedder (Response at 16). However, nothing

about the actual analysis conducted by the Court on direct appeal

remotely comports with the Tedder analysis conducted by the Court in

Keen v. State, 775 So. 2d 263 (Fla. 2000).

In sentencing Mr. Mills, the trial judge's entire analysis, after

discussing the aggravation and mitigation, is as follows:

IT IS the finding of the Court after weighing the

aggravating and mitigating circumstances that there are

sufficient aggravating circumstances as specified in 921.141

and insufficient mitigating circumstances therein that a

sentence of death is justified.

(R. 642) (App. 9). There is no mention of Tedder whatsoever. Cf.

Keen, 775 So. 2d at 284 n.20 ("Indeed, the second page of the

sentencing order contains details of the aggravators, the mitigators,

and supporting evidence as in a death recommendation case. It was not

until the twelfth page of the sentencing order that Tedder is mentioned

. . . . In short, the analysis was conducted backwards"). Even the

order found lacking in Keen made some attempt to set forth why the

judge believed the jury's recommendation to be lacking in a reasonable

basis. Id. at 283-84. No such attempt was made by the trial court in

Mr. Mills' case. It is clear that Mr. Mills' judge simply "disagreed"

with the jury's recommendation "based on his view of the mix of

aggravators and mitigators, rather than through the prism of a Tedder

analysis." Id. at 284.

satisfied was premised on the following factors: (1) there are three

valid aggravating factors; (2) that "the trial judge has found that

there are no valid mitigating circumstances"; and (3) that the

"purported mitigating circumstances claimed by Mills, but not found by

the trial judge, are not sufficient to outweigh the aggravating

circumstances nor do they establish a reasonable basis for the jury's

recommendation." Mills, 476 So. 2d at 179. This is plainly incorrect

under Keen, which explicitly held that under Tedder, "[t]he singular

focus of a Tedder inquiry is whether there is `a reasonable basis in

the record to support the jury's recommendation of life, rather than

the weighing process which a judge conducts after a death

recommendation." Keen, 775 So. 2d at 283. The mere existence of

aggravators does not, under Tedder, exclude the possibility of a

reversal in an override: "[R]eversal under Tedder is in no way

prevented even assuming the presence of several valid aggravators.

Indeed, that has been the rule rather than the exception." Id. at 287

n.24.

It could not be clearer that the interpretation of Tedder

employed on Mr. Mills' direct appeal is not the same as applied in

Keen. Mr. Mills cannot, consistent with the principles of due process

and equal protection, be arbitrarily denied review of his override

under Tedder as "properly interpreted" by Keen. Fiore v. White, 121

Eleventh Circuit explicitly argued that Mr. Mills' claim was

"squarely foreclosed by binding precedent" and that it was not the

federal court's responsibility to intervene where "[t]he Florida

courts determined that State law had been followed" (Answer Brief of

Appellee, Mills v. Singletary, No. 96-3505, at 10-11). That the

Respondent would now represent to this Court that Mr. Mills claim was

(11th Cir. 1989), rev'd on other grounds, 498 U.S. 308 (1991)

("Procedures that result in the constitutional application of the death

penalty if correctly followed may result in the unconstitutional

application of the death penalty if followed incorrectly").

Finally, Respondent relies on the fact that Mr. Mills

unsuccessfully advanced this claim in federal habeas (Response at 17).

Respondent misrepresents what the Eleventh Circuit addressed. The

Eleventh Circuit recognized that Mr. Mills was claiming that his

override was arbitrarily affirmed in light of this Court's statement in

Cochran v. State, 547 So. 2d 928 (Fla. 1988), acknowledging its

previous inconsistent application of Tedder. Mills v. Singletary, 161

F.3d 1273, 1282 (11th Cir. 1998). However, the Eleventh Circuit

refused to entertain the claim, holding that "Mills is actually

requesting a proportionality review, which the district court correctly

refused to entertain." Id. at 1282. See also id. ("To compare Mills'

situation with other Florida capital defendants whose override issues

were decided after 1985 would be in contravention of our role as a

federal courts to refuse to entertain this argument demonstrates

that, other than a not-so-subtle game of "gotcha," it really has no

Mills could use to persuade the federal courts.

"[A] fundamental injustice [] has occurred in this case and []

should be corrected by this Court without further delay." Patton v.

State, 25 Fla. L. Weekly S749 (Fla. 2000) (Anstead, J., concurring in

part and dissenting in part). The constitutionality of Florida's

override is premised in large part on the presumption that this Court

"takes [the Tedder] standard seriously and has not hesitated to reverse

a trial court if it derogates the jury's role." Spaziano v. Florida,

468 U.S. 447, 465 (1984). Thus this Court must "step[] up to the

plate" and "should not hesitate to acknowledge that our prior review of

[Mr. Mills'] case did not measure up to the requirements" of Tedder.

White v. State, 664 So. 2d 242, 247 (Fla. 1995) (Anstead, J.,

dissenting). "The existence of this fundamental flaw in this almost

twenty-year-old case is simply another illustration of the need for

careful scrutiny in all cases in which the death penalty is imposed."

Patton, supra. "Such heightened scrutiny ensures, as much as humanly

possible, that only those who are legally subject to execution are

executed." Swafford v. State, 679 So. 2d 736, 740 (Fla. 1996)

(Harding, J., specially concurring). Based on the foregoing, Mr. Mills

is not "legally subject" to being executed when his override is

WHEREFORE, Petitioner Gregory Mills respectfully requests that

habeas corpus relief be granted.

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by United States Mail, first class postage prepaid, to all

counsel of record on March 26, 2001.

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

CCRC South

101 NE 3d Avenue, Suite 400

Ft. Lauderdale, Florida 33301

(954) 713-1284

Attorney for Defendant

Copies furnished to:

Kenneth Nunnelley, Asst. Attorney General

Office of the Attorney General

444 Seabreeze Boulevard, 5th Floor